Insane in the membrane (got no brain, going insane)

This was a question on another post which was getting too long, and it seemed a really good one, so I decided to give it its own post. Here is the question:

ALa71 said...
TWD: I actually have a law question (or B & M)...you say because OJ got off does that mean the legal system is flawed --and I say yes! Why can't the family hire a prosecutor...this has never made sense to me. This means a rich guy/gal contemplating a murder need only commit it in some backwater town with police Dept/Prosecutor that have never handled that kind of case/publicity/media swarm and hire a 'dream team' and they're off. If the 'bad guy' gets to have 'the best' shouldn't the victims family also have that option (and don't say they do in civil court -because like OJ they won't spend a day in jail or pay a dime)Also, why isn't there a 'guilty by reason of insanity' charge --why are they not guilty because they are insane...they still did it. Another blogger raised a good point -what if someone kills a bunch of kids & gets 'not guilty by reason of insanity' then when she applies to teach Sunday School and fills out the 'have you ever been convicted of a crime' so can say 'no'....seems pretty flawed to me (the layman).

Ala71: These questions go to the heart of our legal system and are very important. Many (most?) people feel the same as you do.

To start off with, my answer is only my opinion, and not based on my legal experience since I am not yet a lawyer but only a law school graduate. Here goes:

The reason the family can't hire a prosecutor is basically because the family is not considered a party to the case. Sounds strange but it really isn't. Before our legal system took shape there was a thing called a "blood debt" - if you kill my kinsman I can either kill you (or a kinsman of yours) and we are even or you can pay me off with, oh, let's say 10 sheep and 5 cows. As a result of that system, which at first seems emotionally satisfying, either another possibly innocent party is killed or murderers can buy their way out. And of course if my clan is more powerful than yours you might not be able to collect anything. The result was usually that murders were either ignored, paid off, or clan warfare resulted. This was considered justice. The entire system was based around revenge.

Our system replaces the "blood debt" by substituing the state in for the kinsmen of the victim. The state represents society, a society which has been wronged by the murder and seeks to restore order and prevent more murders, but doesn't seek revenge. The system recognizes that the victim's family can never be made whole, that there is no way to make up for their loss. It also recognizes that murdering with impunity encourages more murders. Finally there must be buy-in from the members of society. Murderers must be punished to satisfy our natural inclination toward an eye-for-an-eye or society won't support the system - it won't seem "just." Most importantly of all, it seeks to avoid punishing the innocent. Next of kin can't be relied upon to think rationally or fairly - they are too emotionally impacted by the murder. The state can.

This is all a long-drawn out way to say our society simply replaces revenge killings and clan warfare with legal procedure. It might not be what is best in the opinion of the victim's family but it is probably best for society as a whole since we don't have clan warfare and revenge killings as often as we used to. Gang warfare where the crips and the bloods constantly get back at one another by drive-by revenge killings that never stop is an example of the old system. It is better for all of us that the next of kin are removed from the process.

A rich guy does have access to better lawyers, and sometimes a court doesn't function properly as with OJ. That doesn't mean the system is flawed but indicates those charged with running the system have dropped the ball. The surprising thing is that in talking to defense lawyers, prosecutors, judges, and law professors, most of the time juries get it right. The system isn't perfect. It makes mistakes. But it usually works better than the alternative - drivebys. That doesn't mean it can't be improved though. That would cost money and the money isn't there. The system creaks along and we seem to be much safer than we were 100 years ago.

Do the rich get away with more? Yes. Should they? No. However the system works better than it used to, and much better than the blood debt days, and OJ cases are the exception to the rule, not the rule.

Now on to the insanity defense - probably the most misunderstood aspect of our legal process.

First of all, any defense lawyer will tell you that pleading insanity is a measure of desperation. Defense lawyers don't plead it unless they have absolutely no other options. Why? Because it almost never, ever, ever works. Most of the time juries simply tune out as soon as they hear the plea. They think exactly like you do - "the bastard won't try that crap with me." Every layman thinks that such pleas happen all the time, that murderers simply fake it and then walk free. It is instead rarely pled but every time it is the papers report it. Few follow up to see how the case turns out. In those cases where it is pled it usually fails. It almost always happens that way - those that plead not guilty by reason of insanity are found guilty. Is that good? No, and I'll tell you why.

Assume we have a defendant that kills somebody. They are totally crazy, and they choke what they think is a werewolf attacking them. The "werewolf" is a postman. Our system understands that a "guilty mind" is required before punishment. If an airplane loses power and crashes to the ground through no fault of the pilot, killing two people on the ground, we don't prosecute the pilot. Why? He didn't do anything to kill them. If your steering wheel fails and you careen onto a sidewalk and kill a pedestrian, you haven't committed murder. Mechanical failure is at fault. If you kill an attacker that is trying to stab you, you haven't committed murder either. Society views the death of your attacker as a positive good. Why? A six-year old that fires a gun thinking it is a toy and kills somebody - do we put them away (not talking about the people who left the gun out, I'm talking about the kid)? Of course not. Why?

In each case there was no intent to kill and no reckless disregard for the safety of others. Society can't point to anything that anybody did wrong. So what about the guy fighting the "werewolf" in his mind? What purpose would punishing him serve? It wouldn't. It would send the message that we shouldn't choke werewolves that are trying to kill us. What good would that do? It would punish the crazy guy who would never have harmed the postman if he understood what was going on. True. But to him it would be punishing him for choking a werewolf, not for killing the mailman. It doesn't seem right. He didn't even know the mailman was there.

Sadly, what probably happens is that the insane person will plead insanity and the jury will tune out and convict him. He will go to jail where he will not get the medication and therapy he needs. He will either be victimized in prison by the other inmates, or he will attack them and kill them. It is easy to say "well, inmates deserve what they get" but it could be a relative of yours in jail for smoking dope, or forgetting to file income taxes, or a 16-year old who does something stupid like steal a car and go joyriding. It could be your 16-year old who killed because he is schizophrenic, only you didn't know it until the incident and he is otherwise a great kid who simply needs chemicals for his brain to operate normally. Instead he gets raped and brutalized in prison, or he doesn't get the help he needs and goes on to kill again. Maybe he gets killed by the werewolf guy. Do all these people deserve punishment? Sure, they've broken the law. Do they deserve the death penalty or prison rape? Death for failure to file? No, but that is what they might get. Is that justice? I say no.

Worse yet, let's say that the werewolf killer is sentenced to 25 years. He behaves in prison (because maybe he is forced to take his meds) and gets paroled in 12. He is now out on the street where he stops taking his medicine, and pretty soon he is at the bus stop looking at you funny, muttering about the moon. Oops, system failure. Wish the jury had listened better while he chokes you.

If instead he were found "not guilty by reason of insanity" (which makes sense becasue he didn't have a guilty mind, just a deranged one) he doesn't walk out the door a free man. He will be institutionalized for a certain minimum period of time, and after that he will remain institutionalized until his doctors decide he no longer presents a threat to society. Notice that this is a power jail wardens don't have. The guy can tell his prison guards "I'm going to kill all those werewolves who hang out at the elementary school when I get out" and they have to let him go. The doctors don't - most people institutionalized in such a way stay in mental hospitals longer than they would have stayed in prison. They also get the help they need. And it is usually cheaper to the state to house them where they get treatment than to put them into the prison system.

Note that if a deranged person understands right from wrong and kills somebody for a reason having nothing to do with their illness then they are guilty - no insanity plea because it isn't relevant. If I think I am Blorgon of the planet Dworbula and that the govt is reading my mind with microwaves but I kill you for your wallet because I want your money, then my insanity isn't relevant to the killing and I go to jail, not a mental hospital.

But if I think I am killing a raging bear when I am shooting the old lady across the street then I don't have any guilt - I was killing a raging bear in my mind. Society shouldn't seek to punish me but should seek to protect itself from further harm. Convicting me is the worst option for doing that. Putting me in the rubber room and keeping me there until I don't present a threat is much better for me and for society.

So the "kills a bunch of kids and gets not guilty by reason of insanity" won't be teaching sunday school, at least not anytime soon. They will be in an institution until they don't present a threat anymore, in which case they don't present a threat and the kids are ok. Unless they are convicted, in which case they might be out while they are still young enough to kill again and hang around the playground waiting for an opportunity to strike.

The sad fact is that most of the people who plead insanity are insane but get convicted anyway. Society isn't safer and the insane person is punished for actions they weren't responsible for.