The assessment of criminal responsibility: Current controversies
Jennifer L. Skeem, M.S.
Department of Psychology
University of Utah
Salt Lake City, Utah
and
Patricia A. Zapf, M.A.
Department of Psychology
Simon Fraser University
Burnaby, British Columbia
In the first edition of this Handbook, Golding and Roesch (1987) presented a review of "current controversies" in the adjudication of criminal responsibility by placing them in historical context. The original chapter focused upon the legal, philosophical and behavioral science evolution of concepts of mens rea, attempts to reform or abolish the insanity defense, the not-so-new "guilty but mentally ill" verdict, and practice guidelines for the conduct of MSO (mental state at the time of offense) evaluations. A more research-oriented review of related issues, including juror decision-making in criminal responsibility cases, attitudes toward the insanity defense, the recidivism of insanity acquittees, and the psychometric characteristics of methods of evaluating MSO, was published by Golding (1992). This chapter is written to build on both prior chapters, and should be read in conjunction with them. Thus, no attempt is made to incorporate the prior and fuller discussions of certain issues. Rather, these issues, where relevant, are summarized and then expanded upon. The major foci of this chapter are: Insanity Standards and the Construal of Criminal Responsibility (I); Developments in the Assessment of Criminal Responsibility (II); and Issues in the Disposition of Insanity Acquittees (III).
In the decade since our original review of the historical development of the insanity defense and its philosophical, legal, moral and scientific roots (Golding & Roesch, 1987), little has changed substantially in terms of the underlying jurisprudential logic of the defense, the jurisdictional variants of the defense, and criticisms of both. A variety of scholarly reviews of the development of the insanity defense that should be consulted include: Eigen (1995); Golding & Roesch, (1987); Gray, (1972); Hermann, (1983); Perlin, (1994); Platt and Diamond (1965, 1966); Smith, (1981); and Walker, (1968).
We have summarized the moral and legal logic that underlies the insanity defense:
In cognizing and regulating social interactions in terms of fundamental principles of "fairness" and "justice," we assume that all such social interactions, including the societal judgment of criminal or civil responsibility for certain classes of proscribed behavior, are based upon an ethical calculus that assigns individual blame, culpability, liability, punishability, and moral and criminal responsibility as a function of intentionality and mental capacity. The classical formulation of this moral presupposition is the legal maxim, Actus non facit reum, nisi mens sit rea, which translates freely into modern English as "An act is not legally cognizable as evil, and hence criminally punishable, unless it is committed by a person who has the capacity to cognize the act as evil(1) and then freely chooses to do it. (Golding & Roesch, 1987, p. 395)
The modern trend has been to narrow the historically broad interpretation of mens rea, which made it roughly synonymous with "culpable intentionality" (Stroud, 1914, p. 13), and to equate the narrowed interpretation with such phrases as proscribed conduct performed "intentionally," "recklessly," "knowingly," or "purposefully" (Wales, 1976). Another trend has been to give decision-makers an "in-between" verdict, namely guilty but mentally ill (which, in reality, is simply a guilty verdict with no guarantee of differences in sentencing, disposition or mental health treatment (Bumby, 1993; Golding, 1992; Golding & Roesch, 1987). Finally, some states continue to experiment with varying levels of abolition(3). Currently, the modal insanity defense criteria involve either the traditional American Law Institute formulation (with or without the "volitional" prong) , or restricted versions of the traditional M'Naghten test(4).
Controversy surrounding definitional and procedural aspects of the insanity defense has continued since the origins of the defense (see early reviews by Ballantine, 1919; Crotty, 1924; Guy, 1869; Keedy, 1917;1920). In many respects, the changes in legal standards continue to revolve around the same "circle of argument" (Golding & Roesch, 1987), with little evidence that the ebb and flow of changes and argument is well understood empirically (Perlin, 1994).
In a comprehensive study of various "insanity defense reforms," Steadman and his colleagues (Steadman et al., 1993) argued that, despite all the publicity surrounding reform, "Black letter law is altered, but actual practices are barely modified. ... alternatively, the consequences of reform can be far different that the intended outcomes" (p. 139). The unintended consequences of reforming NGRI verdict options that appeared in some of their studied jurisdictions (there was wide variability) included an increase in "guilty but mentally ill" adjudications and an increase use of incompetency to stand trial for mentally ill offenders charged with serious crimes. Unfortunately, since the research did not code relevant, specific aspects of defendants' mental disorder (beyond diagnosis) or important crime scene characteristics, even the results from the jurisdictions that showed little or no effect (of reformed NGRI options), cannot be fully interpreted, because we do not know what kinds of NGRI verdicts remained unchanged and for whom. In the juror decision-making analogue literature (discussed below), the construal of these characteristics is pivotal to decision-making under various standards and reforms. These two research traditions, continue to address somewhat different issues. This is unfortunate because our own experience with respect to forensic cases, is that the reforms do affect outcomes with respect to ultimate dispositions, recidivism and cost (see section on "Issues in the Disposition of Insanity Acquittees," below).
Research on the empirical realities of the adjudication of criminal responsibility has continued to demonstrate the same basic phenomena since earlier reviews (Golding, 1992; Pasewark, 1986). The research is primarily directed at describing the NGRI population in traditional demographic and diagnostic terms, and at "demythologizing" public misconceptions of the insanity defense (see Silver et al., 1994, for a review). Juror and judge decision-making is "rational" and rather consistently identifies a group of individuals with common characteristics(5). The defense is seldom raised (averaging, in a recent study, less than 1% of total felony indictments [Steadman et al., 1993]) and highly variable in its "success" rate(6), with that rate modally being 25% of those who raise the issue. There is a high rate of agreement among forensic experts of similar levels of training, experience and methodology, and high levels of agreement between examiner opinions and judge/juror decisions(7). NGRI verdicts are typically achieved as either a stipulation between defense and prosecution or bench trials, and rarely involve contested "battles of experts" in front of jurors (Golding, 1992; Melton et al., 1997; Silver et al., 1994) . Defendants who are "acquitted" as NGRI typically have major psychotic diagnoses and extensive mental health histories, often with prior civil commitments or prior findings of incompetency(8) (see Golding, 1992; Golding, Eaves & Kowaz, 1989; Ogloff et al., 1992; Steadman et al., 1993).
Unfortunately, this type of "socio-demographic" research does not address the more theoretically interesting question: what types of mental disorder characteristics (beyond "psychosis") and what aspects of offense incident characteristics (planning, intentionality behaviors, reasonableness of motive) influence expert, judge and/or juror decision making. Finkel (1995) and Roberts and Golding (1991) have argued and presented rather convincing data, from analogue studies, that jurors' individual construal of the case and particular defendant characteristics, along a set of dimensions(9), are major determinants of mock decision-making. It would be important for large scale research on both examiner judgments and the verdicts reached by judges and the rare trial jury to examine what elements or factors are relied upon in reaching decisions. Research on inter-examiner agreement (addressed elsewhere in this chapter), is not very useful because it focuses on global agreement. Recent research on the logic and structure of examiner decision-making in competency evaluations (Skeem, Golding, Cohn & Berge, in press) demonstrates high "global" agreement in ultimate conclusions, but very poor agreement in examiner logic, including defendants' particular abilities and incapacities. Logically, we would expect the same in NGRI evaluations. Similarly, we know of no empirical study of the "crime characteristics" that lead actual judicial decision-makers or forensic examiners to conclude that the defendant lacked the legally or morally relevant mental state. This point is particularly critical because few examiners, in our experience, pay close attention to collateral reports or crime scene data with respect to its consistency with their inferences about a defendant's mental state (see section on "Third Party Information" below and Melton et al, 1997).
While data on the reliability and validity of well-founded forensic criminal responsibility opinions (see Note 19) is encouraging, there are no modern studies(10) of actual jury or bench trials, expert testimony for and against the defendant's mental state, and case-specific factors that are weighed in accepting or rejecting an insanity claim. Logically, we can place some weight in surveys of attitudes toward insanity and insanity dispositions, and compare that to what is empirically known (Silver et al., 1994). Most of what we know is based upon jury simulation studies.(11) Although there are problems that arise with this methodology, a careful analysis of analogue studies produces a rather consistent set of findings and implications.
Jurors are expected to determine an appropriate verdict by conscientiously applying the law to a fair evaluation of the evidence (Wainwright v. Witt, 1985). As suggested above, the effect of specific language differences in legal standards for insanity has been intensely debated for over two centuries. The nature and outcome of these debates, however, have shown either weak or little practical influence on jurors as a main effect(12). Research repeatedly demonstrates that mock jurors often do not apply judicial instruction on various legal definitions of insanity in rendering verdicts (Finkel 1989, 1991; Finkel, Shaw, Bercaw & Kock, 1985; Ogloff; 1991; Ogloff, Schweighofer, Turnbull & Whittemore, 1992; Simon, 1967). For example, the Insanity Defense Reform Act (1984) was formulated after Hinckley's acquittal to narrow the language of the American Law Institute standard (ALI, 1962), thereby curbing the number of insanity verdicts (by eliminating the "volitional prong"). In an analogue study, Finkel (1989) found no verdict differences among mock jurors who were given IDRA instructions, ALI instructions or very narrow "wild beast" instructions (Arnold's Case, 1724; cited in Walker, 1978).
In fact, Finkel and others have found that it often makes no difference whether jurors are given any test or standard: mock jurors who receive no insanity definitions or who are told to use their "best lights" judgment to decide a case produce verdict patterns indistinguishable from those of mock jurors who receive various insanity test instructions(13) (Finkel, 1989; Finkel & Handel, 1988; Ogloff, 1991). The fact that jurors determine whether a defendant is sane or insane without the guidance of legal instructions suggests that they rely upon their own knowledge about insanity and other cognitive structures to make these decisions. It does not imply that they "nullify" instructions; rather that their own implicit theories of insanity guide their interpretation of the admittedly vague and non-specific linguistic terms of insanity standards.
Although the legal system implicitly assumes that people are blank slates who can apply the law in a wholly evidence-driven fashion, substantial research indicates that people have "knowledge structures" which reflect their life experiences and guide their behavior (Schneider, 1991; Fiske, 1993). These knowledge structures include constructs such as attitudes, schemas, prototypes, and stereotypes, and appear highly relevant to legal decision making (see Moran, Cutler & DeLisa, 1994; Pennington & Hastie, 1986; Smith, 1991; Stalans, 1993 ). Several sources of research, in various stages of development, suggest that individual differences in these structures are critical in understanding why jurors reach particular verdicts in insanity defense cases.
Jurors' case-relevant attitudes. The insanity defense is controversial and involves scientific as well as political-moral issues. Although public opinion polls and empirical studies often find support for the basic logic of the insanity defense, they consistently reveal powerful negative attitudes toward the defense (Cutler, Moran & Narby, 1992; Ellsworth, Bukaty, Cowan & Thompson, 1983; Hans, 1986; Hans & Slater, 1984; Homant & Kennedy, 1987; Jeffrey & Pasewark, 1983; Pasewark & Seidenzahl, 1979; Roberts & Golding, 1991). For example, Roberts, Golding and Fincham (1987) found that, although 78% of their subjects believed that severe mental illness suggested impairment in one's capacity to make rational decisions and form criminal intent, 66% believed that insanity should not be allowed as a complete criminal defense. Across studies, results reflect a primary concern that the insanity defense is an easily abused "loophole" in the law that allows many guilty criminals to escape punishment (Silver et al., 1994). Additional concerns include beliefs that insanity is easily malingered(14) and that the public is poorly protected(15) from dangerous criminals who are adjudicated insane (Golding, 1992; see also Perlin, 1994, chap. 5). Similarly, jurors' case-specific negative attitudes towards both mental health experts and individuals with severe mental illness appear relevant in their decision making in insanity defense cases (Cutler et al., 1992; Perlin, 1994; Skeem, 1997).
Many of the above concerns reflect inaccurate knowledge about the insanity defense. Such myths are not only prevalent, but may also be inflexible. Jeffrey and Pasewark (1984) presented subjects with factual statistics on the frequency and success rate of the insanity defense. Approximately half of subjects maintained their opinion that the insanity defense was overused and abused despite having seen contradictory evidence. Especially troubling is the robust finding that these prevalent, potentially inflexible, negative attitudes toward the insanity defense exert considerable influence on mock jurors' verdicts in insanity cases (Bailis et al., 1995; Cutler, Moran & Narby, 1992; Ellsworth et al., 1984; Homant & Kennedy, 1987; Roberts et al., 1987; Robinson, 1995). For example, Roberts and Golding (1991) found that mock jurors' attitudes toward the insanity defense were more strongly associated with their verdicts than were the study design variables, which included manipulations of available verdict categories (insanity vs. insanity supplemented by guilty but mentally ill), and case facts (the relationship of the defendant's delusion to the crime and the planfulness of the crime). The most determinative dimension underlying these attitudes was jurors' belief in strict liability (versus a belief that mental state is relevant to a defendant's blameworthiness). In essence, then, jurors' verdicts may depend more upon their attitudes and opinions than on case facts and court instruction.
Despite strong evidence on the biasing effect of negative attitudes toward the insanity defense on verdicts, bias may often go undetected based upon limitations in current knowledge and legal procedures. First, despite abundant research on insanity defense attitudes, no validated measure of these attitudes has yet been developed(16). Second, except in cases involving interracial violent crimes, capital punishment, or pretrial publicity, judges are accorded broad discretion in selecting the topics to be addressed during voir dire (Johnson & Haney, 1994; Sklansky, 1996). Although insanity defense cases arguably invoke equally powerful biases, the case law reflects a trend in which judges refuse to inquire about bias against the insanity defense or even allow the impanelment of jurors who express biases against the defense or against the mentally ill (Perlin, 1994). In our opinion, the voir dire process would ideally be reformed such that prospective jurors' case-relevant preconceptions and attitudes were routinely examined in insanity defense cases.
Jurors' case construals. Additional lines of research suggest that jurors' views are critical. In addition to their case-specific attitudes, jurors' individual ways of interpreting evidence are related to their verdicts. Mock jurors draw different inferences about defendants' cognitive and volitional impairments when given identical case descriptions (Bailis et al., 1995; Roberts & Golding, 1991; Roberts et al., 1987; Roberts, Sargent & Chan, 1993; Simon, 1967; Whittemore & Ogloff, 1995). These inferences, in turn, strongly predict their verdicts. For example, Roberts and Golding (1991) presented mock jurors with case vignettes in which they manipulated available verdict categories, the relationship of the defendant's paranoid delusion to the crime, and the planfulness of the crime. The attitude-related ways in which mock jurors interpreted the case evidence were the most powerful predictors of verdict choice. For example, individual differences in jurors' perceptions of the extent to which a defendant was mentally disordered, capable of rational behavior, capable of acting differently, or capable of understanding the wrongfulness of their behavior explained substantially more variance in verdicts than did the objective manipulation of case evidence.
Finkel and Handel (1989), using different methodology, also found that jurors actively construct the meaning of case information in rendering verdicts. They presented mock jurors with four vastly different case vignettes and asked them to render a verdict and explain the reasoning underlying their decisions. Using a rationally derived categorization scheme, they found that mock jurors cited multiple, rational reasons for their decisions in each case (the categorization scheme included, for example capacity-incapacity to make responsible choices, unimpaired-impaired awareness and perceptions, no motive-evil motive for criminal act). The pattern of the cited constructs or "reasons" systematically differed based upon the verdict that mock jurors reached. In essence, then, jurors construed case information in complex, discriminating ways that were consistent with their verdict choices.
Similarly, Whittemore and Ogloff (1995) found that differences in mock jurors' perceptions of a defendant's mental state at the time of his trial (MST) predicted their verdicts. Despite the authors' manipulation of the defendant's MST (symptom free, neurotic, or psychotic), mock jurors differed in their perceptions of the extent to which given defendants were mentally disordered. When mock jurors' inferred that the defendant was psychotic at the time of the trial, they were more likely to deem him insane.
Jurors' implicit theories or prototypes of insanity. In essence, then, jurors construct the meaning of case information. These "constructions" or interpretations are more strongly associated with jurors' verdicts than the case as objectively given and appear unaffected by judicial instruction. Based upon these findings, several authors have argued that jurors render insanity verdicts by carefully resorting to their personal knowledge or implicit theories of insanity (Finkel & Handel, 1989; Roberts & Golding, 1991; Roberts et al., 1987). However, the nature of these theories and the process by which they affect verdicts remains unclear. The studies that have attempted to infer the nature of mock jurors' conceptions of insanity based on jurors' judgments about insanity case vignettes have produced somewhat conflicting results in terms of the relative importance of various construal dimensions (Bailis et al., 1995; Finkel & Handel, 1989; Roberts et al., 1987; Robinson & Darley, 1995). To date, studies which directly analyze what people mean by "insane" in the context of an analysis of actual jury decisions are virtually nonexistent: "'what everybody knows' about insanity is perilously unchartered" (Perlin, 1994, p. 294).
Based on the above results, related results, and promising leads in general legal decision making studies (Smith, 1991, 1993), some of us are currently investigating jurors' conceptions of insanity by applying a prototype theory of categorization (Skeem, 1997). Specifically, we wish to determine what jurors' conceptions of insanity are, the extent to which they differ across individuals, and the extent to which they influence construal of case information and verdicts. This type of research is also being pursued (using a different, "story-oriented" methodology) by Finkel (1995; Finkel and Groscup, 1997). Though the results are preliminary, Finkel & Groscup (1997) found that undergraduate subjects describe insanity cases as involving young defendants with a history of strain, mental disorder, violence, and abuse, who perpetrate various crimes (including murder), after various precipitating events (such as the loss of loved ones) on a stranger. For successful insanity cases, the defendant's motive is related to a grandiose delusion; for unsuccessful cases, revenge is the motive. What remains to be tested is the extent to which such prototypes differ among individuals and/or influence jurors' verdicts.
The role of insanity case facts. Jurors' decisions are not determined solely by subjective factors. Although "individual differences in social-moral cognition" appear most critical in understanding jurors' verdicts, objective manipulation of case facts does have some impact on jurors' verdicts. For example, the level of a defendant's mental disorder, and the planfulness and bizarreness of the crime are associated with jurors' verdicts (Roberts et al., 1987; Roberts & Golding, 1991). As noted earlier, the characteristics of insanity acquittees suggests that juror and judicial decision making is rational and relatively consistent.
Most of the studies reviewed in this section are analogue studies completed with undergraduate subjects. Further research is needed to discern whether these results generalize to jurors or jury-eligible adults and to actual cases in which, for instance, jury deliberation and other aspects of the more normal process takes place (Simon, 1967). In a related sense, further research is needed with jurors or jury-eligible adults to determine whether undergraduates' attitudes, conceptions, and judgments adequately reflect their breadth and variability (Abbott, Hall & Linville, 1993; cf Roberts & Golding, 1991; MacCoun, 1989). Some of the analogue studies like those in which case facts are manipulated could be adapted and completed using "real" cases to illuminate critical factors in juror decision-making. For instance, rather than studying the relative frequency among insanity acquittees and non-insanity acquittees of gross variables such as "psychotic" or "nonpsychotic", one might complete a more informative, finer-grained analysis of "case-texture" variables, including the type of motives, intents, defendants, victims, defendant-victim relationships, precipitating events and offenses that discriminate between successful or unsuccessful insanity pleas (see Steury & Choinsky, 1995).
The Rogers Criminal Responsibility Assessment Scales (R-CRAS) (Rogers, Wasyliw & Cavanaugh, 1984) were designed to quantify the elements of the so-called "ALI" criteria for criminal non-responsibility. Based upon a comprehensive evaluation, the examiner rates a series of scales grouped into five areas: a) reliability of report; b) organicity; c) psychopathology; d) cognitive control; and e) behavioral control. For example, the psychopathology section involves ratings of bizarre behavior, anxiety, amnesia, delusions, hallucinations, depressed or elevated mood, verbal coherence, and affective and thought disorder. In addition, there are a series of more global ratings on final judgments of insanity and impairment. Thus, the R-CRAS is an instrument that reflects relative importance assigned by examiners to the "first-order" elements of an "insanity-decision" (e.g., the presence and relevance of psychopathology to MSO). It should be noted that these "elements" are fairly abstract psychological and legal terms (e.g., "delusions at the time of alleged crime") and do not necessarily represent the cues that are actually utilized by professional examiners in making their decisions. This is a major issue of contention between Rogers, Melton et al. (1997) and Golding (1992) in the evaluation of this instrument. Rogers believes it important to quantify the issue, although it would be unfair to assume that he does not recognize the value of more qualitative data (see Rogers & Ewing, 1992). Melton and Golding agree that quantification is essentially illusory at this stage in the development of evaluations of criminal responsibility. Both groups of authors agree, in large measure, on the domain of conceptual elements to be addressed.
Rogers has reported modest inter-rater reliabilities at the item level (average kappa 0.58), with lower values (0.49) associated with the "product question," (i.e., was the loss of control attributable to underlying psychopathological disturbance), one of the most frequent sources of disagreement in contested trials (Rogers, Wasyliw & Cavanaugh, 1984). Final judgments with the R-CRAS also show reasonable levels of agreement between examiners and triers of fact (96% with respect to sanity with lower levels of agreement on insanity [70%]) (Rogers, Cavanaugh, Seeman & Harris, 1984). These findings are in general accord with the levels of agreement between clinicians and courts found in other studies of final judgment that use no formalized interviews or rating scales (Golding, 1992). Unfortunately, all studies in this area appear to use criterion-contaminated groups in that the examination process is part of the judicial/criterial determination.
A number of proposals for semi-structured protocols for examining MSO issues have been made [see, for example, Golding and Roesch (1987), Melton et al. (1997), and Ogloff, Roberts and Roesch (1993)]. They share in common an open-ended structure, with special attention to developing multi-source data, identification of legally and psychologically relevant dimensions of the criminal responsibility evaluation, and disclosure of the logical links in an evaluator's reasoning. The need to develop such a comprehensive analysis is clear. These less-structured approaches have been shown to be empirically useful in various contexts (see Melton et al. 1997, for a review), but they have not been studied in the same fashion as the R-CRAS (discussed above). The R-CRAS and less structured MSO evaluation techniques make their most important contributions by clarifying for the trier of fact the underlying bases for professional judgment (Golding,1990; 1992), hence potentially highlighting the areas of disagreement so that expert testimony can be of more assistance to judge or juror. As argued elsewhere in this chapter, there is strong reason to believe that forensic examiners reach their generally high level of agreement in "ultimate opinions," by very different logical and empirically sustainable routes (see Skeem et al., in press, for an example in the context of competency evaluations). The critical issue remains the association between organic or psychopathological disturbance and control/moral judgment capacities; these devices are most useful when they serve the heuristic value of a) highlighting the aspects of the defendant's psychological state that are relevant, b) describing a purported relationship to control and judgment capacities, and c) organizing known data about the empirical relationships between disorder and psychological capacities in various states and situations.
It is now a commonly accepted professional standard of practice that forensic evaluators seek to examine the consistency of mental health history and other archival data, along with details of the crime scene and witnesses accounts of the defendant before, during, and after the alleged incident. This "consistency" examination is relevant to issues of malingering(17) and aids in supporting or challenging various psychological interpretations of the defendant's mental state at the time of the offense. The importance of this aspect of a forensic examination at the time of the offense has been discussed by Golding (1992), Heilbrun et al. (1994) , Melton et al. (1997), Ogloff et al. (1993) and Rogers (1997). It is beyond the scope of this chapter to discuss the relevance of so-called "profiling," and it would be difficult to do so in light of the lack of empirical data that have been made available of the reliability and validity of such techniques. Notwithstanding the lack of empiricism, the thrust behind the importance of crime scene evidence and collateral sources in supporting/challenging psychological interpretations of the defendant's mental state at the time of offense cannot be over-emphasized. Although a forensic expert at trial should not mislead the trier of fact with respect to the degree of empirical support for this type of analysis, it is desirable to disclose the underlying data and logic of one's opinions, including the consistency (or lack thereof) of behavioral evidence with various psychological interpretations. A few examples will help develop this point.
Suppose a defense expert asserts that a young defendant, who killed a police officer with a rifle shot from the driver's side of a car in a high speed chase following a "gas skip," was depressed, agitated and suicidal, and was trying to arrange a passive suicide ("death by cop"). The "novelty" of the assertion aside, the critical issue has to do with depression and its manifestations, along with the behavioral evidence. The evidence in support of the theory comes from the defendant's self-report, clinical interviews, and some self-report personality inventories. Close examination of the police reports and forensic evidence, however, reveals that the defendant fired several times, and that his "shots" fit a tight pattern that targeted the police officer; and further that he was trained in marksmanship. Further, the defendant was observed to "duck" when the police shot out his car's tires. Immediately after his arrest, and in the months following, (1) the defendant showed no behavioral indications of depression according to correctional officers' observations of his mood, interactions with others, facial expressions, sleep and appetite, or general demeanor; and (2) his letters from jail to several friends, relatives and a girl-friend revealed no indications of depression, suicidality or pre-occupation with morbid themes, and had a considerable "future" orientation. Is there a direct scientific basis for integrating these data? Clearly not, but there is a basis for asserting that these data are inconsistent with the defense's claim, based partially on psychological data and knowledge of depression, and partially on logical reasoning. It would obviously be an important task for future research to examine carefully, in representative populations, the link between behavioral manifestations of mental capacities and incapacities. It is in this sense that the development of more standardized protocols for crime scene analysis of behavioral data relevant to purported psychological states is warranted.
Suppose that a defendant charged with two murders has an expert who wishes to assert that a defendant was delusionally "inspired" to the murders by psychotic "revelations from God." The issue may be partially joined by a detailed examination of the defendant's phenomenological experience, the cultural context and its consistency with the development of delusions versus over-valued ideas, as we discuss below(18). Nevertheless, behavioral data and forensic evidence are also relevant. Thus, the fact that the written "revelation" at issue was edited by the defendant over time, and that the name of "God's servant" who was to carry out the "removal" was first left blank, then filled in by the defendant, then allegedly performed by the defendant when the named person was deemed "undesirable." Additional data concern an attempt to flee the police, use of an alias, and a public statement, following arrest, that the "revelation" did not say "to kill" but rather "to remove" the victims. In conjunction with other psychological data, what does this suggest about the delusionality of the "revelation" and its unmittlebar characteristics (see Delusion section)? Again, the available data are indirect, but they are inconsistent with what is known about delusionally inspired behavior. Moreover, they are difficult to link logically to delusional as opposed to personally inspired motivation(19).
Finally, consider an evaluation of a confession, in which the police view of the confession's validity and the defendant's rationale for complying with police coercion, is at issue. Close examination of the confession reveals that the defendant's statements about his position and the nature of his killing of the victim are inconsistent with his handedness, his claimed position vis-a-vis the victim, and the nature of the depression fractures to the victim's skull (see Melton et al., 1997, p. 238, for a similar type of confession case). Such evidence does not unequivocally point in a particular direction, but it is consistent with the nature of the defendant's mental state claims about the circumstances of the confession (that the police had given him the information, and that he confessed, based upon those details to protect his wife, whom he believed had committed the act, and whose own inconsistent statements were also in dispute).
The thread that runs through these and other examples is that forensic evaluators need to pay close attention to crime scene data, as well as to more traditional sources of "third party" information (mental health records, witness statements and the like). All such sources need to be integrated in as straightforward a manner as possible. Where limited scientific data exist to support the inference (e.g. descriptive studies of the characteristics of hallucinations or delusions), they should be referenced, and where otherwise indicated, the evaluator's logical link analysis should be declared and scrutinized.
As Melton et al. (1997) note, the role of the forensic evaluator is not to "resolve conclusively all conflicting accounts about the case" (p. 50), but rather to conduct an evaluation that can be scrutinized in terms of all available evidence, both psychological and behavioral. The same issue often arises in neuropsychological evaluations in both civil and criminal contexts (Matarazzo, 1990). However, modern forensic standards of practice are to address the issue of the consistency of behavioral crime scene evidence with psycholegal formulations, and to allow the trier of fact of make the determination of their significance, guided by whatever scientific evidence can be directly or indirectly adduced.
The nature and quality of a defendant's delusionality is central in determining the extent of impairment in mental state at the time of the offense. Several issues are involved. In contested cases(20) forensic examiners are particularly apt to encounter defendants with extreme or idiosyncratic beliefs about religion, politics or personal identity , and a question of the delusionality of those beliefs will arise. Delusionality also enters the adjudicatory process when the issues of intentionality, compulsion, or the reasonableness of the defendant's conduct may be related to a delusion. Finally, delusionality is an important aspect of risk assessment with respect to release decisions.
Although there are surprisingly few studies on the frequency and nature of delusions among NGRI defendants, indirect data, as well as experience, suggest that delusionality is a vital issue. Delusions are highly prevalent among individuals who suffer from psychosis (Winters and Neale, 1983)(21); in turn, roughly half of those defendants who raise the insanity defense and 70% of insanity acquittees have psychotic diagnoses (Andreasen & Flaum, 1994; Cirincione, Steadman & McGreevy, 1995; Ogloff, Schweighofer, Turnbull & Whittemore, 1992; Rice & Harris, 1990; Taylor et al., 1994). Moreover, delusions are specifically and substantially related to violence (Taylor et al., 1994).
In an extensive analysis of case records, Häfner and Böker (1982) found that 70% of individuals with schizophrenia who were accused of homicide had delusional beliefs about their relationship to their victim. Similarly, in an interview study, Taylor (1985) found that 40% of psychotic defendants acted directly upon delusions during their offenses. The frequency of nonpathological, but radical religious and/or political beliefs, and the extent of the relationship between these beliefs and violence has not been systematically studied (Taylor et al., 1994). However, defendants whose criminal acts are related to such fervently held beliefs are clearly plausible candidates for mental state evaluations.
Distinguishing between radical beliefs and delusions is a difficult, but critical task in assessing criminal responsibility(22). Respecting the principles of autonomy and self determination, our legal system holds responsible the extremist who chooses to act upon a radical system of beliefs, expressing her desires, values, and "personhood" through the crime (see Hermann, 1990). The basic moral logic of the insanity defense, however, excuses the mentally disordered individual who acts upon a pathological, uncontrollable belief system that distorts her sense of reality, thereby impairing her capacity for rational choice Arguably, the same logic also applies to delusions which would "justify" the actions(23).
Notwithstanding the centrality of this issue in assessing criminal responsibility, there are relatively few data oriented studies or professional practice standards available in the forensic literature to aid in assessing the delusionality of beliefs. In "grey area" cases, or cases in which defendants are neither clearly sane nor insane, the classification of beliefs as delusory is presumably a major source of disagreement among examiners. There is no "bright line" of demarcation between extreme beliefs and delusions (Garety & Hemsley, 1994; Oltmanns, 1988). Moreover, religious and political belief systems, which reference nonphysical entities and events, are not scientifically testable; consequently, there is "no full standard of truth independent of what the [defendant] says" (Taylor et al., 1994, p. 167; Saks, 1991). For these reasons, in this section we will review recent progress in defining and assessing delusions and their likely consequences. The purpose of this section is to introduce readers to the complex issues involved in assessing delusions and to aid clinicians in conducting informed assessments of defendants' beliefs in the context of insanity evaluations. Emphasis is placed upon issues relevant to distinguishing between extreme religious or political beliefs and delusions.
The DSM-IV defines a delusion as follows:
A false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person's culture or subculture (e.g., it is not an article of religious faith). When a false belief involves a value judgment, it is regarded as a delusion only when the judgment is so extreme as to defy credibility ... . (American Psychiatric Association, 1994, p. 765, emphasis added)
Although this "concise and handy" definition is adequate for most forensic and clinical purposes, its shortcomings are readily exposed when one attempts to delineate its boundaries (Sedler, 1995). As noted above, there is often no standard of proof by which to assess the falsity of beliefs in many religious, political or identity systems. Similarly, it is difficult to evaluate the incredibility or implausibility of beliefs: clinicians rarely agree upon the extent to which beliefs are bizarre (Flaum, Arndt & Andreasen, 1991; Oltmanns, 1988; Spitzer, First, Kendler & Stein, 1993; cf. Mojtabai & Nicholson, 1995). The degree of conviction with which a belief is held also does not clearly distinguish between delusional and nondelusional beliefs. Like delusional beliefs, nondelusional but highly valued beliefs are often held with great zeal and intensity even in the face of contradictory evidence. Moreover, most patients shift between periods in which they are certain about their delusions and periods in which they have partial or full insight (see Harrow, Rattenbury & Stoll, 1988; Sacks, Carpenter & Strauss, 1974).
These difficulties are "frequently compounded by ambiguity surrounding the presence or absence of cultural support for the person's belief" (Oltmanns, 1988, p. 3). It is difficult to determine the extent to which the nature of a belief, its experience, or its expression must deviate(24) from that accepted by a designated subgroup to classify as delusional. Clearly, examiners must have considerable knowledge of the social, religious, political and even scientific context of a defendant's belief to adequately assess its delusionality (see Barnhouse, 1986; Oltmanns, 1988). Failure to carefully consider patients' subcultural and religious background often results in misdiagnosis (see Lu, Lukoff & Turner, 1994).
Most current attempts to systematically analyze delusions are based upon the seminal work of Jaspers(25) (1963; see Garety & Hemsley, 1994; Mullen, 1979, 1985; Sedler, 1995). Jaspers arguably provides the most comprehensive, enduring, and clinically useful theory for distinguishing among various categories of delusional and nondelusional beliefs. A simplified summary of this theory focused on differentiating delusional from nondelusional beliefs per se will be presented here (see Walker, 1991 for detail).
Jaspers argued that the criteria of conviction, imperviousness to counter-argument and impossibility or bizarreness were insufficient(26) external criteria that did not capture the essence of delusionality(27). Rather, "overvalued beliefs," or even "delusion-like ideas(28)" could be distinguished from primary delusions, based upon Jaspers' approach, by attention to three more fundamental criteria. First, primary delusions are distinguished from secondary delusions and beliefs which are merely overvalued based upon the extent and nature of their "un-understandability.(29)" Secondly, primary delusions are "unmediated(30)" by thought, analysis, deduction or reflection, while overvalued ideas and secondary delusions reflect varying degrees of cognitive appraisal and inference. Third, primary delusions reflect a distinctive change in an individual's personality functioning(31), that is, they are a distinct change in the totality of the individual's personal meanings and ways of construing the world.
An overvalued idea is understandable, the product of cognitive interpretation, and can be viewed in terms of an individual's personality, life experiences, and socio-cultural background. Overvalued ideas are relatively easily understood "as exaggerations, diminutions, or combinations of phenomena which we ourselves experience" (Jaspers, 1963, quoted in Walker, 1991, p. 100). In contrast, a secondary delusion ("crazy idea") is only understandable in the sense that it emerges through one's process of reasoning about psychopathological experiences (e.g., based upon the quiet voices and buzzing an individual occasionally hears, she arrives at the conclusion that she is a target of government surveillance). A primary delusion is not understandable because it originates in a direct, immediate experience of new meaning unmediated by thought and unconnected to the person's fundamental personality (e.g., one sees a "man in a brown coat...he is the dead Archduke," Walker, 1991, p. 99). Thus, while overvalued ideas have "clear precedent" in an individual's existing personality and meaningful life events, secondary delusions emerge from other psychopathological experiences and primary delusions fundamentally change an individual's personality or "way of looking at the world" (Walker, 1991). Although Jaspers' classification has been subject to little empirical research and can be criticized for relying heavily upon the subjective criterion of "understandability" (Mullen, 1985), his theory provides useful guidance in conceptualizing the key distinctions among delusions and overvalued ideas.
Since Jaspers' work, there has been a recent, "emerging consensus that delusions are complex, multidimensional phenomena" (Taylor et al., 1994, p. 163). As demonstrated above, delusions cannot be fully defined by checklists of necessary and sufficient criteria (Oltmanns, 1988). Thus, researchers have begun to view delusions as beliefs which deviate "to a greater or lesser extent from normal beliefs along a number of dimensions." (Garety & Hemsley, 1994, p. 40). Based upon this dimensional conception, several instruments have been developed to aid in assessing delusions (see Garety & Hemsley, 1994, chaps. 4-5; Harrow, Rattenbury & Stoll, 1988; Kendler, Glazer & Morgenstern, 1983; Taylor et al., 1994). A particularly promising example of these instruments will be described below.
Several instruments are available to aid in assessing whether beliefs are delusional, explore and describe their content, and determine their core dimensions and likely consequences. These instruments have promising psychometric characteristics and appear to be useful in forensic and risk assessment contexts.
Determining whether beliefs are delusional. Traditional psychological tests such as the MMPI-2 or Rorschach, or newer instruments such as the Personality Assessment Inventory, are not "magic bullets," but can be useful sources of supplementary information to aid in determining the probability of delusional thinking. Delusions are highly prevalent among individuals with psychosis: in fact, "delusion has long been regarded as one of the central characteristics of psychosis or madness, and [usually] involves more than false and arbitrary ideas..." (Mullen, 1985, p. 17; Andreasen & Flaum, 1994). Thus, profile patterns and clinical signs indicative of thought disorder or other manifestations of psychosis increase the likelihood that an extreme belief is pathological(32). However, potentially delusional beliefs are complex phenomena that require direct, specific assessment focused on discerning the nature of the belief, the phenomenology and organization of experiences relevant to the belief, and the extent to which the belief and its expression are understandable based upon the defendant's personality or socio-cultural background. Thus, traditional psychological tests are relatively less important than detailed interviews of the defendant and knowledgeable others and careful reviews of relevant legal and mental health records (see below). The latter data are also necessary to address the core issue of the extent to which possibly delusional thinking is related to the defendant's mental state at the time of the offense.
Several structured interviews have been developed to increase the reliability and validity of diagnoses and/or to improve the quality and comprehensiveness of clinical interviews (see Andreasen, Flaum & Arndt, 1992; Luria & Guziec, 1981; Manchanda, Hirsch & Barnes, 1989). The Present State Examination (PSE-9, Wing, Cooper & Satorius, 1974) is grounded in the phenomenological approach and was created primarily for the latter purpose. The most recent revision, PSE-10, is compatible with DSM-IIIR, DSM-IV and ICD-10 diagnostic systems (Wing, 1996). The PSE is, in our opinion, the most comprehensive structured interview available to aid in assessing the delusionality of beliefs. The PSE is closely linked to Jasper's approach, distinguishes between partial and full delusions, and includes detailed attention to the potential influence of the defendant's religious and political subculture on her beliefs. Moreover, "at the heart" of the PSE is a comprehensive symptom glossary which aids in making relatively fine distinctions with respect to each item.
Although data are apparently not yet available for the PSE-10, the PSE-9 demonstrates rates of agreement comparable to or exceeding those of other structured interviews (see Luria & Guziec, 1981; Manchanda & Hirsch, 1986). The PSE-9 inter-rater reliability for delusions is excellent and comparable to that achieved with Andreasen's (1987) Comprehensive Assessment of Symptoms and History (CASH) and the anchored Brief Psychiatric Rating Scale (Andreasen et al., 1992; Gabbard et al., 1987; Lukoff, Lieberman & Nuechterlein, 1986; World Health Organization, 1979) .
Exploring and describing the content of possible delusions. The PSE provides definitions, sample inquiries, and rating points not only for assessing the basic delusionality of beliefs, but also for exploring what kind of potentially delusional ideas a defendant holds (e.g., grandiose, referential, persecutory, thought insertion). The CASH (Andreasen, 1987), a structured interview for assessing major mental illness, provides little guidance in defining basic delusionality, but covers a wider range of delusional content than the PSE. In addition to detailed definitions and probes for exploring specific kinds of delusions, the CASH includes an extensive rating system for various types of formal thought disorder (i.e., derailment, illogicality, pressure) and other positive and negative symptoms of schizophrenia. A comprehensive analysis of these symptoms can highlight sometimes subtle signs of psychosis. When a defendant expresses herself in a relatively disconnected fashion, this arguably increases the probability that her beliefs are delusional rather than merely eccentric.
Unfortunately, we could not find reliability data for the types of delusions where examiner (dis)agreement is of most interest for our purposes, namely, "grey area" religious and political delusions or over-valued ideas. Reliability for less nebulous types of delusions is, however, quite high when structured interviews are employed. For example, the PSE-9 has excellent rates of inter-rater reliability with respect to paranoid delusions, (interclass r=.93), grandiose delusions (r=.93), and delusions of passivity (r=.92) (Amador, Strauss, Yale & Gorman, 1991).
Determining the contours or dimensions of a delusion. As explained above, several leaders in the study of delusions have begun to conceptualize delusions as beliefs which differ from normal beliefs across various sets of dimensions, and have created assessment instruments to assess delusions as multidimensional phenomena. Pamela Taylor and her colleagues (1994) have developed a sophisticated version of such an instrument, the Maudsley Assessment of Delusions Schedule (MADS). The MADS is a structured interview designed to reliably and validly assess key dimensions and possible consequences of an individual's "principal abnormal belief" (e.g., the belief the individual deems most important). This purpose is relevant to evaluations of criminal responsibility and disposition in that it emphasizes links among delusional dimensions and violence. Taylor and her colleagues suggest that clinicians use the MADS after they have administered the delusion subsection of the PSE to determine the delusionality of beliefs and identify their content. The key dimensions assessed by the MADS were derived from prior research and the MADS item development studies. They include: (1) conviction, (2) belief maintenance factors (i.e., seeking evidence to support the belief, reaction to belief-challenging information), (3) affective impact of the belief, (4) preoccupation with the belief, (5) systematization of the belief, (6) idiosyncrasy of the belief, (7) insight, and (8) manner and degree of action on belief. Items related to the "action" dimension reflect three types of action on the basis of delusion: (a) aggression toward self or others; (b) defensive action such as withdrawal; and ( c) no action or single, unobtrusive action (Wesseley et al., 1993). The MADS has excellent inter-rater reliability (M kappa=.82), and good test-retest reliability (M kappa=.63) (Taylor et al., 1994).
Dimensions of delusions associated with violence. The MADS has been used to investigate the frequency of acting upon delusions and the characteristics of delusions that are associated with acting violently. Wesseley et al. (1993; see also Taylor et al., 1994) found that, of 83 delusional patients studied over a brief 28 day period, 60% reported having acted in some way on their delusions, but only 11% reported having acted violently toward themselves or others based on their delusions. The authors attempted to relate particular types of delusions to propensities toward general action and found that only persecutory delusions were particularly likely to be directly acted upon (violently or nonviolently). Two dimensions of delusions that are assessed by the MADS were related to action in general: belief maintenance factors and affective impact (see Buchanan et al., 1993). Specifically, acting "on a delusion was associated with being aware of and having actively sought 'evidence' that supported [or refuted] the belief together with, paradoxically, some reduction in the conviction with which the belief was held on direct challenge. Acting was also associated with a range of affective changes (e.g., increase in [sadness], fear or anxiety) which the patient attributed to the belief" (Taylor et al., 1994, p. 176).
Other data on dimensions of psychotic belief also support the importance of assessing the nature and characteristics of delusionality thoroughly. Link and Stueve (1994) found that what they term "threat/control override symptoms" (thoughts and delusions about being harmed, having one's mind controlled, thought insertion, etc.) were a significant factor in accounting for community aggression and weapons use. Steury and Choinski (1995) also uncovered some interesting relationships in a relatively elegant descriptive and correlational analysis of violent crime characteristics that distinguish mentally ill defendants from non-mentally ill defendants. Compared with non-mentally ill defendants, mentally ill defendants' crimes more often involved, for example, lack of apparent motive, delusional motive, relatively unplanned actions, more use of knives than guns, and no history of conflict or trouble with the victim combined with a greater likelihood of arguing with the victim at the onset of the offense. Notably, mentally ill defendants' victims were less often strangers. These data, taken together with Taylor's work, obviously need replication in larger samples with careful attention to the complex dimensions of delusion. Nevertheless, they point the way for sophisticated forensic research on delusionality and its relationship to criminal responsibility (see Mulvey, 1994 for a similar analysis).
Inherent in a original decision to find a defendant "not guilty by reason of insanity" is concern about the ultimate "disposition" of such acquittees. Jurors place a great deal of emphasis on this issue in their deliberations (see this chapter and Golding, 1992). Further, a comparison of data on the rates and success of insanity pleas and the nature of insanity dispositions with data on public perceptions about these issues clearly reveals that the public over-estimates the frequency and successfulness of the insanity plea and under-estimates the nature and length of institutionalization following an insanity "acquittal" ( Silver, Cirincione & Steadman, 1994). Curiously, in Shannon v. United States (1994), the Supreme Court held that NGRI defendants have no right to a jury instruction which makes clear the post-"acquittal" commitment process, since such an instruction would violate the long standing principle that a jury must base its verdict on the evidence before it. While this may be "correct" jurisprudential theory, it violates "common-sense justice" in that we have strong reasons to be believe that jurors do pay attention to this issue, and that their assumptions are incorrect (see above)(33).
In Jones v. United States (1983), the Supreme Court of the United States affirmed that because an insanity acquittee was not guilty of a criminal offense, a principled and constitutional approach to the disposition of insanity acquittees must focus on the issues of mental disorder and its relationship to future dangerousness, not on the length of incarceration associated with the acquittee's underlying criminal conduct(34). Also, in order to commit an insanity acquittee, the state must prove only by a preponderance of the evidence that the acquittee is mentally ill and dangerous. Implied in the decision, is the assumption that the court may place a higher burden on the defendant to prove, in future release hearings, that she was no longer mentally ill and not at a high risk for future dangerous behavior. The assumption that the Court is comfortable with such asymmetries in the civil vs. criminal commitment context is reinforced by their decisions in Foucha v. Louisiana (1992) and Kansas v. Hendricks (1997). In a complex decision, four justices in Foucha held Louisiana's broad NGRI commitment statute unconstitutional because it would allow continued confinement of insanity acquittee's based upon dangerousness alone. In contrast, four other justices (now in clear majority on the Court) would have allowed the commitment on the grounds that the NGRI verdict was sufficient to justify the continued commitment, especially in light of the vagaries of mental illness. In her determining vote, Justice O'Connor agreed that, as written, the broad Lousiana statute was unconstitutional, but the commitment could be constitutional "if, unlike the situation in this case, the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness" (at 88-89). It is unfortunate that this critical decision was argued in the context of Foucha, whose original NGRI was based upon a "drug induced psychosis" (which is an atypical ground for an insanity defense) and that his "lack of mental illness" at petitioned release was "antisocial personality disorder." Nevertheless, the trend of the Court is clearly in the direction of loose boundaries with respect to the criteria for mental illness (Hendricks) and the criteria for dangerousness in the post-conviction/NGRI context.
One of the unappreciated consequences of an NGRI disposition is that the adjudicating court can maintain jurisdiction and control via monitoring programs, conditional release, and revocation for a virtual life-time period if needed. As Jones v. United States (1983) made clear, the criterion for ultimate release is non-dangerousness as well as relevant concern with the role of current mental illness.
Insofar as many insanity acquittees have significant life-long psychopathological difficulties that are only controlled to a certain extent and are subject to fluctuations associated with variable dangerousness (Golding et al., 1989), systematic programs for trained professionals to monitor insanity acquittees' release makes a good deal of sense (Bloom, Williams & Bigelow, 1991). Although little attention has been paid to this problem in the majority of jurisdictions, those jurisdictions that have implemented such systems uniformly report positive results. Well known conditional release programs exist in British Columbia, California, Maryland, New York, Oregon, and several other states (Bloom et al., 1991; Golding et al., 1989; Griffin, Steadman & Heilbrun, 1991; Heilbrun & Griffin, 1993; Heilbrun et al., 1994; McGreevy et al., 1991; Psychiatric Security Review Board, 1994; Silver & Tellefsen, 1991; Tellefsen et al., 1992; Wiederanders, 1992; Wilson, Tien & Eaves,1995). The coordination, control and training of community supervisors is critical to the success of these programs (Golding, 1991), especially with reference to ongoing monitoring of a supervisee's risk status (Wack, 1993).
Wiederanders (1992) followed a group of insanity acquittees who had been conditionally released with follow-up supervision under tightly controlled circumstances (CONREP) with a group of insanity acquittees that had been released because they reached their maximum sentences (MAXOUT). The groups are obviously constituted non-randomly, but Wiederanders demonstrates that they were substantially equal on known predictors of recidivism. The two groups were found to differ dramatically both in their frequency of failure of community tenure ( 5.8% v. 27.3%), and in their rate of failure (faster for the unsupervised group). Wiederanders attributes such differences to the ability to monitor deterioration and to intervene earlier and in a preventative fashion. Results from all of the community supervision programs referenced previously are consistent with this conclusion. The empirical proposition, though not yet fully tested, makes clinical, legal and social policy sense. If this population is known to be more difficult to treat (due to ineffectiveness of medication, medication refusal, fluctuating clinical/dangerousness course, etc.), then a balanced conditional release program, which errs on the side of false positives (revoking community tenure and re-instituting a higher level of supervision), is a rational system. It also appears to be an empirically justifiable system.
An unstudied aspect of the dispositional issue has to do with the ultimate costs and effectiveness of placing prototypic insanity acquittees in forensic treatment contexts versus placement in traditional correctional facilities. Although some data clearly support the monitored release of NGRI acquittees, the larger trend, in those states with either guilty but mentally ill or highly restricted (or non-existent) insanity defenses, is to place such defendants in correctional environments for the majority of their sentence or institutionalization. Wiederanders (1992; Wiederanders & Choate, 1994) and Golding et al. (1989) have shown that articulated follow-up of insanity acquittees in the community is feasible and worthy of study. What we do not have is informative data on the differences between similar individuals "treated" in correctional versus forensic mental health contexts. We know of no empirical studies of this issue, but clearly they are now quite timely. With respect to mental health economics, the question is whether society eventually pays "more" or "less" for treating mentally disordered offenders in prison or in forensic mental health systems. Clearly, the cost per diem while initially incarcerated will favor prison over mental health system dispositions. However, the analysis also needs to include days institutionalized, days in the community at lower cost, and the likelihood and financial, emotional, and moral costs of recidivism. Again, we know of no direct data, but, on logical grounds, we would propose that treated and supervised mentally ill and dangerous offenders would cost less, financially and emotionally, than prison incarcerated mentally ill offenders who receive less mental health treatment and supervision(35).
FOOTNOTES
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The assessment of criminal responsibility: Current controversies
Jennifer L. Skeem, M.S.
Department of Psychology
University of Utah
Salt Lake City, Utah
and
Patricia A. Zapf, M.A.
Department of Psychology
Simon Fraser University
Burnaby, British Columbia
In the first edition of this Handbook, Golding and Roesch (1987) presented a review of "current controversies" in the adjudication of criminal responsibility by placing them in historical context. The original chapter focused upon the legal, philosophical and behavioral science evolution of concepts of mens rea, attempts to reform or abolish the insanity defense, the not-so-new "guilty but mentally ill" verdict, and practice guidelines for the conduct of MSO (mental state at the time of offense) evaluations. A more research-oriented review of related issues, including juror decision-making in criminal responsibility cases, attitudes toward the insanity defense, the recidivism of insanity acquittees, and the psychometric characteristics of methods of evaluating MSO, was published by Golding (1992). This chapter is written to build on both prior chapters, and should be read in conjunction with them. Thus, no attempt is made to incorporate the prior and fuller discussions of certain issues. Rather, these issues, where relevant, are summarized and then expanded upon. The major foci of this chapter are: Insanity Standards and the Construal of Criminal Responsibility (I); Developments in the Assessment of Criminal Responsibility (II); and Issues in the Disposition of Insanity Acquittees (III).
In the decade since our original review of the historical development of the insanity defense and its philosophical, legal, moral and scientific roots (Golding & Roesch, 1987), little has changed substantially in terms of the underlying jurisprudential logic of the defense, the jurisdictional variants of the defense, and criticisms of both. A variety of scholarly reviews of the development of the insanity defense that should be consulted include: Eigen (1995); Golding & Roesch, (1987); Gray, (1972); Hermann, (1983); Perlin, (1994); Platt and Diamond (1965, 1966); Smith, (1981); and Walker, (1968).
We have summarized the moral and legal logic that underlies the insanity defense:
In cognizing and regulating social interactions in terms of fundamental principles of "fairness" and "justice," we assume that all such social interactions, including the societal judgment of criminal or civil responsibility for certain classes of proscribed behavior, are based upon an ethical calculus that assigns individual blame, culpability, liability, punishability, and moral and criminal responsibility as a function of intentionality and mental capacity. The classical formulation of this moral presupposition is the legal maxim, Actus non facit reum, nisi mens sit rea, which translates freely into modern English as "An act is not legally cognizable as evil, and hence criminally punishable, unless it is committed by a person who has the capacity to cognize the act as evil(36) and then freely chooses to do it. (Golding & Roesch, 1987, p. 395)
The modern trend has been to narrow the historically broad interpretation of mens rea, which made it roughly synonymous with "culpable intentionality" (Stroud, 1914, p. 13), and to equate the narrowed interpretation with such phrases as proscribed conduct performed "intentionally," "recklessly," "knowingly," or "purposefully" (Wales, 1976). Another trend has been to give decision-makers an "in-between" verdict, namely guilty but mentally ill (which, in reality, is simply a guilty verdict with no guarantee of differences in sentencing, disposition or mental health treatment (Bumby, 1993; Golding, 1992; Golding & Roesch, 1987). Finally, some states continue to experiment with varying levels of abolition(38). Currently, the modal insanity defense criteria involve either the traditional American Law Institute formulation (with or without the "volitional" prong) , or restricted versions of the traditional M'Naghten test(39).
Controversy surrounding definitional and procedural aspects of the insanity defense has continued since the origins of the defense (see early reviews by Ballantine, 1919; Crotty, 1924; Guy, 1869; Keedy, 1917;1920). In many respects, the changes in legal standards continue to revolve around the same "circle of argument" (Golding & Roesch, 1987), with little evidence that the ebb and flow of changes and argument is well understood empirically (Perlin, 1994).
In a comprehensive study of various "insanity defense reforms," Steadman and his colleagues (Steadman et al., 1993) argued that, despite all the publicity surrounding reform, "Black letter law is altered, but actual practices are barely modified. ... alternatively, the consequences of reform can be far different that the intended outcomes" (p. 139). The unintended consequences of reforming NGRI verdict options that appeared in some of their studied jurisdictions (there was wide variability) included an increase in "guilty but mentally ill" adjudications and an increase use of incompetency to stand trial for mentally ill offenders charged with serious crimes. Unfortunately, since the research did not code relevant, specific aspects of defendants' mental disorder (beyond diagnosis) or important crime scene characteristics, even the results from the jurisdictions that showed little or no effect (of reformed NGRI options), cannot be fully interpreted, because we do not know what kinds of NGRI verdicts remained unchanged and for whom. In the juror decision-making analogue literature (discussed below), the construal of these characteristics is pivotal to decision-making under various standards and reforms. These two research traditions, continue to address somewhat different issues. This is unfortunate because our own experience with respect to forensic cases, is that the reforms do affect outcomes with respect to ultimate dispositions, recidivism and cost (see section on "Issues in the Disposition of Insanity Acquittees," below).
Research on the empirical realities of the adjudication of criminal responsibility has continued to demonstrate the same basic phenomena since earlier reviews (Golding, 1992; Pasewark, 1986). The research is primarily directed at describing the NGRI population in traditional demographic and diagnostic terms, and at "demythologizing" public misconceptions of the insanity defense (see Silver et al., 1994, for a review). Juror and judge decision-making is "rational" and rather consistently identifies a group of individuals with common characteristics(40). The defense is seldom raised (averaging, in a recent study, less than 1% of total felony indictments [Steadman et al., 1993]) and highly variable in its "success" rate(41), with that rate modally being 25% of those who raise the issue. There is a high rate of agreement among forensic experts of similar levels of training, experience and methodology, and high levels of agreement between examiner opinions and judge/juror decisions(42). NGRI verdicts are typically achieved as either a stipulation between defense and prosecution or bench trials, and rarely involve contested "battles of experts" in front of jurors (Golding, 1992; Melton et al., 1997; Silver et al., 1994) . Defendants who are "acquitted" as NGRI typically have major psychotic diagnoses and extensive mental health histories, often with prior civil commitments or prior findings of incompetency(43) (see Golding, 1992; Golding, Eaves & Kowaz, 1989; Ogloff et al., 1992; Steadman et al., 1993).
Unfortunately, this type of "socio-demographic" research does not address the more theoretically interesting question: what types of mental disorder characteristics (beyond "psychosis") and what aspects of offense incident characteristics (planning, intentionality behaviors, reasonableness of motive) influence expert, judge and/or juror decision making. Finkel (1995) and Roberts and Golding (1991) have argued and presented rather convincing data, from analogue studies, that jurors' individual construal of the case and particular defendant characteristics, along a set of dimensions(44), are major determinants of mock decision-making. It would be important for large scale research on both examiner judgments and the verdicts reached by judges and the rare trial jury to examine what elements or factors are relied upon in reaching decisions. Research on inter-examiner agreement (addressed elsewhere in this chapter), is not very useful because it focuses on global agreement. Recent research on the logic and structure of examiner decision-making in competency evaluations (Skeem, Golding, Cohn & Berge, in press) demonstrates high "global" agreement in ultimate conclusions, but very poor agreement in examiner logic, including defendants' particular abilities and incapacities. Logically, we would expect the same in NGRI evaluations. Similarly, we know of no empirical study of the "crime characteristics" that lead actual judicial decision-makers or forensic examiners to conclude that the defendant lacked the legally or morally relevant mental state. This point is particularly critical because few examiners, in our experience, pay close attention to collateral reports or crime scene data with respect to its consistency with their inferences about a defendant's mental state (see section on "Third Party Information" below and Melton et al, 1997).
While data on the reliability and validity of well-founded forensic criminal responsibility opinions (see Note 19) is encouraging, there are no modern studies(45) of actual jury or bench trials, expert testimony for and against the defendant's mental state, and case-specific factors that are weighed in accepting or rejecting an insanity claim. Logically, we can place some weight in surveys of attitudes toward insanity and insanity dispositions, and compare that to what is empirically known (Silver et al., 1994). Most of what we know is based upon jury simulation studies.(46) Although there are problems that arise with this methodology, a careful analysis of analogue studies produces a rather consistent set of findings and implications.
Jurors are expected to determine an appropriate verdict by conscientiously applying the law to a fair evaluation of the evidence (Wainwright v. Witt, 1985). As suggested above, the effect of specific language differences in legal standards for insanity has been intensely debated for over two centuries. The nature and outcome of these debates, however, have shown either weak or little practical influence on jurors as a main effect(47). Research repeatedly demonstrates that mock jurors often do not apply judicial instruction on various legal definitions of insanity in rendering verdicts (Finkel 1989, 1991; Finkel, Shaw, Bercaw & Kock, 1985; Ogloff; 1991; Ogloff, Schweighofer, Turnbull & Whittemore, 1992; Simon, 1967). For example, the Insanity Defense Reform Act (1984) was formulated after Hinckley's acquittal to narrow the language of the American Law Institute standard (ALI, 1962), thereby curbing the number of insanity verdicts (by eliminating the "volitional prong"). In an analogue study, Finkel (1989) found no verdict differences among mock jurors who were given IDRA instructions, ALI instructions or very narrow "wild beast" instructions (Arnold's Case, 1724; cited in Walker, 1978).
In fact, Finkel and others have found that it often makes no difference whether jurors are given any test or standard: mock jurors who receive no insanity definitions or who are told to use their "best lights" judgment to decide a case produce verdict patterns indistinguishable from those of mock jurors who receive various insanity test instructions(48) (Finkel, 1989; Finkel & Handel, 1988; Ogloff, 1991). The fact that jurors determine whether a defendant is sane or insane without the guidance of legal instructions suggests that they rely upon their own knowledge about insanity and other cognitive structures to make these decisions. It does not imply that they "nullify" instructions; rather that their own implicit theories of insanity guide their interpretation of the admittedly vague and non-specific linguistic terms of insanity standards.
Although the legal system implicitly assumes that people are blank slates who can apply the law in a wholly evidence-driven fashion, substantial research indicates that people have "knowledge structures" which reflect their life experiences and guide their behavior (Schneider, 1991; Fiske, 1993). These knowledge structures include constructs such as attitudes, schemas, prototypes, and stereotypes, and appear highly relevant to legal decision making (see Moran, Cutler & DeLisa, 1994; Pennington & Hastie, 1986; Smith, 1991; Stalans, 1993 ). Several sources of research, in various stages of development, suggest that individual differences in these structures are critical in understanding why jurors reach particular verdicts in insanity defense cases.
Jurors' case-relevant attitudes. The insanity defense is controversial and involves scientific as well as political-moral issues. Although public opinion polls and empirical studies often find support for the basic logic of the insanity defense, they consistently reveal powerful negative attitudes toward the defense (Cutler, Moran & Narby, 1992; Ellsworth, Bukaty, Cowan & Thompson, 1983; Hans, 1986; Hans & Slater, 1984; Homant & Kennedy, 1987; Jeffrey & Pasewark, 1983; Pasewark & Seidenzahl, 1979; Roberts & Golding, 1991). For example, Roberts, Golding and Fincham (1987) found that, although 78% of their subjects believed that severe mental illness suggested impairment in one's capacity to make rational decisions and form criminal intent, 66% believed that insanity should not be allowed as a complete criminal defense. Across studies, results reflect a primary concern that the insanity defense is an easily abused "loophole" in the law that allows many guilty criminals to escape punishment (Silver et al., 1994). Additional concerns include beliefs that insanity is easily malingered(49) and that the public is poorly protected(50) from dangerous criminals who are adjudicated insane (Golding, 1992; see also Perlin, 1994, chap. 5). Similarly, jurors' case-specific negative attitudes towards both mental health experts and individuals with severe mental illness appear relevant in their decision making in insanity defense cases (Cutler et al., 1992; Perlin, 1994; Skeem, 1997).
Many of the above concerns reflect inaccurate knowledge about the insanity defense. Such myths are not only prevalent, but may also be inflexible. Jeffrey and Pasewark (1984) presented subjects with factual statistics on the frequency and success rate of the insanity defense. Approximately half of subjects maintained their opinion that the insanity defense was overused and abused despite having seen contradictory evidence. Especially troubling is the robust finding that these prevalent, potentially inflexible, negative attitudes toward the insanity defense exert considerable influence on mock jurors' verdicts in insanity cases (Bailis et al., 1995; Cutler, Moran & Narby, 1992; Ellsworth et al., 1984; Homant & Kennedy, 1987; Roberts et al., 1987; Robinson, 1995). For example, Roberts and Golding (1991) found that mock jurors' attitudes toward the insanity defense were more strongly associated with their verdicts than were the study design variables, which included manipulations of available verdict categories (insanity vs. insanity supplemented by guilty but mentally ill), and case facts (the relationship of the defendant's delusion to the crime and the planfulness of the crime). The most determinative dimension underlying these attitudes was jurors' belief in strict liability (versus a belief that mental state is relevant to a defendant's blameworthiness). In essence, then, jurors' verdicts may depend more upon their attitudes and opinions than on case facts and court instruction.
Despite strong evidence on the biasing effect of negative attitudes toward the insanity defense on verdicts, bias may often go undetected based upon limitations in current knowledge and legal procedures. First, despite abundant research on insanity defense attitudes, no validated measure of these attitudes has yet been developed(51). Second, except in cases involving interracial violent crimes, capital punishment, or pretrial publicity, judges are accorded broad discretion in selecting the topics to be addressed during voir dire (Johnson & Haney, 1994; Sklansky, 1996). Although insanity defense cases arguably invoke equally powerful biases, the case law reflects a trend in which judges refuse to inquire about bias against the insanity defense or even allow the impanelment of jurors who express biases against the defense or against the mentally ill (Perlin, 1994). In our opinion, the voir dire process would ideally be reformed such that prospective jurors' case-relevant preconceptions and attitudes were routinely examined in insanity defense cases.
Jurors' case construals. Additional lines of research suggest that jurors' views are critical. In addition to their case-specific attitudes, jurors' individual ways of interpreting evidence are related to their verdicts. Mock jurors draw different inferences about defendants' cognitive and volitional impairments when given identical case descriptions (Bailis et al., 1995; Roberts & Golding, 1991; Roberts et al., 1987; Roberts, Sargent & Chan, 1993; Simon, 1967; Whittemore & Ogloff, 1995). These inferences, in turn, strongly predict their verdicts. For example, Roberts and Golding (1991) presented mock jurors with case vignettes in which they manipulated available verdict categories, the relationship of the defendant's paranoid delusion to the crime, and the planfulness of the crime. The attitude-related ways in which mock jurors interpreted the case evidence were the most powerful predictors of verdict choice. For example, individual differences in jurors' perceptions of the extent to which a defendant was mentally disordered, capable of rational behavior, capable of acting differently, or capable of understanding the wrongfulness of their behavior explained substantially more variance in verdicts than did the objective manipulation of case evidence.
Finkel and Handel (1989), using different methodology, also found that jurors actively construct the meaning of case information in rendering verdicts. They presented mock jurors with four vastly different case vignettes and asked them to render a verdict and explain the reasoning underlying their decisions. Using a rationally derived categorization scheme, they found that mock jurors cited multiple, rational reasons for their decisions in each case (the categorization scheme included, for example capacity-incapacity to make responsible choices, unimpaired-impaired awareness and perceptions, no motive-evil motive for criminal act). The pattern of the cited constructs or "reasons" systematically differed based upon the verdict that mock jurors reached. In essence, then, jurors construed case information in complex, discriminating ways that were consistent with their verdict choices.
Similarly, Whittemore and Ogloff (1995) found that differences in mock jurors' perceptions of a defendant's mental state at the time of his trial (MST) predicted their verdicts. Despite the authors' manipulation of the defendant's MST (symptom free, neurotic, or psychotic), mock jurors differed in their perceptions of the extent to which given defendants were mentally disordered. When mock jurors' inferred that the defendant was psychotic at the time of the trial, they were more likely to deem him insane.
Jurors' implicit theories or prototypes of insanity. In essence, then, jurors construct the meaning of case information. These "constructions" or interpretations are more strongly associated with jurors' verdicts than the case as objectively given and appear unaffected by judicial instruction. Based upon these findings, several authors have argued that jurors render insanity verdicts by carefully resorting to their personal knowledge or implicit theories of insanity (Finkel & Handel, 1989; Roberts & Golding, 1991; Roberts et al., 1987). However, the nature of these theories and the process by which they affect verdicts remains unclear. The studies that have attempted to infer the nature of mock jurors' conceptions of insanity based on jurors' judgments about insanity case vignettes have produced somewhat conflicting results in terms of the relative importance of various construal dimensions (Bailis et al., 1995; Finkel & Handel, 1989; Roberts et al., 1987; Robinson & Darley, 1995). To date, studies which directly analyze what people mean by "insane" in the context of an analysis of actual jury decisions are virtually nonexistent: "'what everybody knows' about insanity is perilously unchartered" (Perlin, 1994, p. 294).
Based on the above results, related results, and promising leads in general legal decision making studies (Smith, 1991, 1993), some of us are currently investigating jurors' conceptions of insanity by applying a prototype theory of categorization (Skeem, 1997). Specifically, we wish to determine what jurors' conceptions of insanity are, the extent to which they differ across individuals, and the extent to which they influence construal of case information and verdicts. This type of research is also being pursued (using a different, "story-oriented" methodology) by Finkel (1995; Finkel and Groscup, 1997). Though the results are preliminary, Finkel & Groscup (1997) found that undergraduate subjects describe insanity cases as involving young defendants with a history of strain, mental disorder, violence, and abuse, who perpetrate various crimes (including murder), after various precipitating events (such as the loss of loved ones) on a stranger. For successful insanity cases, the defendant's motive is related to a grandiose delusion; for unsuccessful cases, revenge is the motive. What remains to be tested is the extent to which such prototypes differ among individuals and/or influence jurors' verdicts.
The role of insanity case facts. Jurors' decisions are not determined solely by subjective factors. Although "individual differences in social-moral cognition" appear most critical in understanding jurors' verdicts, objective manipulation of case facts does have some impact on jurors' verdicts. For example, the level of a defendant's mental disorder, and the planfulness and bizarreness of the crime are associated with jurors' verdicts (Roberts et al., 1987; Roberts & Golding, 1991). As noted earlier, the characteristics of insanity acquittees suggests that juror and judicial decision making is rational and relatively consistent.
Most of the studies reviewed in this section are analogue studies completed with undergraduate subjects. Further research is needed to discern whether these results generalize to jurors or jury-eligible adults and to actual cases in which, for instance, jury deliberation and other aspects of the more normal process takes place (Simon, 1967). In a related sense, further research is needed with jurors or jury-eligible adults to determine whether undergraduates' attitudes, conceptions, and judgments adequately reflect their breadth and variability (Abbott, Hall & Linville, 1993; cf Roberts & Golding, 1991; MacCoun, 1989). Some of the analogue studies like those in which case facts are manipulated could be adapted and completed using "real" cases to illuminate critical factors in juror decision-making. For instance, rather than studying the relative frequency among insanity acquittees and non-insanity acquittees of gross variables such as "psychotic" or "nonpsychotic", one might complete a more informative, finer-grained analysis of "case-texture" variables, including the type of motives, intents, defendants, victims, defendant-victim relationships, precipitating events and offenses that discriminate between successful or unsuccessful insanity pleas (see Steury & Choinsky, 1995).
The Rogers Criminal Responsibility Assessment Scales (R-CRAS) (Rogers, Wasyliw & Cavanaugh, 1984) were designed to quantify the elements of the so-called "ALI" criteria for criminal non-responsibility. Based upon a comprehensive evaluation, the examiner rates a series of scales grouped into five areas: a) reliability of report; b) organicity; c) psychopathology; d) cognitive control; and e) behavioral control. For example, the psychopathology section involves ratings of bizarre behavior, anxiety, amnesia, delusions, hallucinations, depressed or elevated mood, verbal coherence, and affective and thought disorder. In addition, there are a series of more global ratings on final judgments of insanity and impairment. Thus, the R-CRAS is an instrument that reflects relative importance assigned by examiners to the "first-order" elements of an "insanity-decision" (e.g., the presence and relevance of psychopathology to MSO). It should be noted that these "elements" are fairly abstract psychological and legal terms (e.g., "delusions at the time of alleged crime") and do not necessarily represent the cues that are actually utilized by professional examiners in making their decisions. This is a major issue of contention between Rogers, Melton et al. (1997) and Golding (1992) in the evaluation of this instrument. Rogers believes it important to quantify the issue, although it would be unfair to assume that he does not recognize the value of more qualitative data (see Rogers & Ewing, 1992). Melton and Golding agree that quantification is essentially illusory at this stage in the development of evaluations of criminal responsibility. Both groups of authors agree, in large measure, on the domain of conceptual elements to be addressed.
Rogers has reported modest inter-rater reliabilities at the item level (average kappa 0.58), with lower values (0.49) associated with the "product question," (i.e., was the loss of control attributable to underlying psychopathological disturbance), one of the most frequent sources of disagreement in contested trials (Rogers, Wasyliw & Cavanaugh, 1984). Final judgments with the R-CRAS also show reasonable levels of agreement between examiners and triers of fact (96% with respect to sanity with lower levels of agreement on insanity [70%]) (Rogers, Cavanaugh, Seeman & Harris, 1984). These findings are in general accord with the levels of agreement between clinicians and courts found in other studies of final judgment that use no formalized interviews or rating scales (Golding, 1992). Unfortunately, all studies in this area appear to use criterion-contaminated groups in that the examination process is part of the judicial/criterial determination.
A number of proposals for semi-structured protocols for examining MSO issues have been made [see, for example, Golding and Roesch (1987), Melton et al. (1997), and Ogloff, Roberts and Roesch (1993)]. They share in common an open-ended structure, with special attention to developing multi-source data, identification of legally and psychologically relevant dimensions of the criminal responsibility evaluation, and disclosure of the logical links in an evaluator's reasoning. The need to develop such a comprehensive analysis is clear. These less-structured approaches have been shown to be empirically useful in various contexts (see Melton et al. 1997, for a review), but they have not been studied in the same fashion as the R-CRAS (discussed above). The R-CRAS and less structured MSO evaluation techniques make their most important contributions by clarifying for the trier of fact the underlying bases for professional judgment (Golding,1990; 1992), hence potentially highlighting the areas of disagreement so that expert testimony can be of more assistance to judge or juror. As argued elsewhere in this chapter, there is strong reason to believe that forensic examiners reach their generally high level of agreement in "ultimate opinions," by very different logical and empirically sustainable routes (see Skeem et al., in press, for an example in the context of competency evaluations). The critical issue remains the association between organic or psychopathological disturbance and control/moral judgment capacities; these devices are most useful when they serve the heuristic value of a) highlighting the aspects of the defendant's psychological state that are relevant, b) describing a purported relationship to control and judgment capacities, and c) organizing known data about the empirical relationships between disorder and psychological capacities in various states and situations.
It is now a commonly accepted professional standard of practice that forensic evaluators seek to examine the consistency of mental health history and other archival data, along with details of the crime scene and witnesses accounts of the defendant before, during, and after the alleged incident. This "consistency" examination is relevant to issues of malingering(52) and aids in supporting or challenging various psychological interpretations of the defendant's mental state at the time of the offense. The importance of this aspect of a forensic examination at the time of the offense has been discussed by Golding (1992), Heilbrun et al. (1994) , Melton et al. (1997), Ogloff et al. (1993) and Rogers (1997). It is beyond the scope of this chapter to discuss the relevance of so-called "profiling," and it would be difficult to do so in light of the lack of empirical data that have been made available of the reliability and validity of such techniques. Notwithstanding the lack of empiricism, the thrust behind the importance of crime scene evidence and collateral sources in supporting/challenging psychological interpretations of the defendant's mental state at the time of offense cannot be over-emphasized. Although a forensic expert at trial should not mislead the trier of fact with respect to the degree of empirical support for this type of analysis, it is desirable to disclose the underlying data and logic of one's opinions, including the consistency (or lack thereof) of behavioral evidence with various psychological interpretations. A few examples will help develop this point.
Suppose a defense expert asserts that a young defendant, who killed a police officer with a rifle shot from the driver's side of a car in a high speed chase following a "gas skip," was depressed, agitated and suicidal, and was trying to arrange a passive suicide ("death by cop"). The "novelty" of the assertion aside, the critical issue has to do with depression and its manifestations, along with the behavioral evidence. The evidence in support of the theory comes from the defendant's self-report, clinical interviews, and some self-report personality inventories. Close examination of the police reports and forensic evidence, however, reveals that the defendant fired several times, and that his "shots" fit a tight pattern that targeted the police officer; and further that he was trained in marksmanship. Further, the defendant was observed to "duck" when the police shot out his car's tires. Immediately after his arrest, and in the months following, (1) the defendant showed no behavioral indications of depression according to correctional officers' observations of his mood, interactions with others, facial expressions, sleep and appetite, or general demeanor; and (2) his letters from jail to several friends, relatives and a girl-friend revealed no indications of depression, suicidality or pre-occupation with morbid themes, and had a considerable "future" orientation. Is there a direct scientific basis for integrating these data? Clearly not, but there is a basis for asserting that these data are inconsistent with the defense's claim, based partially on psychological data and knowledge of depression, and partially on logical reasoning. It would obviously be an important task for future research to examine carefully, in representative populations, the link between behavioral manifestations of mental capacities and incapacities. It is in this sense that the development of more standardized protocols for crime scene analysis of behavioral data relevant to purported psychological states is warranted.
Suppose that a defendant charged with two murders has an expert who wishes to assert that a defendant was delusionally "inspired" to the murders by psychotic "revelations from God." The issue may be partially joined by a detailed examination of the defendant's phenomenological experience, the cultural context and its consistency with the development of delusions versus over-valued ideas, as we discuss below(53). Nevertheless, behavioral data and forensic evidence are also relevant. Thus, the fact that the written "revelation" at issue was edited by the defendant over time, and that the name of "God's servant" who was to carry out the "removal" was first left blank, then filled in by the defendant, then allegedly performed by the defendant when the named person was deemed "undesirable." Additional data concern an attempt to flee the police, use of an alias, and a public statement, following arrest, that the "revelation" did not say "to kill" but rather "to remove" the victims. In conjunction with other psychological data, what does this suggest about the delusionality of the "revelation" and its unmittlebar characteristics (see Delusion section)? Again, the available data are indirect, but they are inconsistent with what is known about delusionally inspired behavior. Moreover, they are difficult to link logically to delusional as opposed to personally inspired motivation(54).
Finally, consider an evaluation of a confession, in which the police view of the confession's validity and the defendant's rationale for complying with police coercion, is at issue. Close examination of the confession reveals that the defendant's statements about his position and the nature of his killing of the victim are inconsistent with his handedness, his claimed position vis-a-vis the victim, and the nature of the depression fractures to the victim's skull (see Melton et al., 1997, p. 238, for a similar type of confession case). Such evidence does not unequivocally point in a particular direction, but it is consistent with the nature of the defendant's mental state claims about the circumstances of the confession (that the police had given him the information, and that he confessed, based upon those details to protect his wife, whom he believed had committed the act, and whose own inconsistent statements were also in dispute).
The thread that runs through these and other examples is that forensic evaluators need to pay close attention to crime scene data, as well as to more traditional sources of "third party" information (mental health records, witness statements and the like). All such sources need to be integrated in as straightforward a manner as possible. Where limited scientific data exist to support the inference (e.g. descriptive studies of the characteristics of hallucinations or delusions), they should be referenced, and where otherwise indicated, the evaluator's logical link analysis should be declared and scrutinized.
As Melton et al. (1997) note, the role of the forensic evaluator is not to "resolve conclusively all conflicting accounts about the case" (p. 50), but rather to conduct an evaluation that can be scrutinized in terms of all available evidence, both psychological and behavioral. The same issue often arises in neuropsychological evaluations in both civil and criminal contexts (Matarazzo, 1990). However, modern forensic standards of practice are to address the issue of the consistency of behavioral crime scene evidence with psycholegal formulations, and to allow the trier of fact of make the determination of their significance, guided by whatever scientific evidence can be directly or indirectly adduced.
The nature and quality of a defendant's delusionality is central in determining the extent of impairment in mental state at the time of the offense. Several issues are involved. In contested cases(55) forensic examiners are particularly apt to encounter defendants with extreme or idiosyncratic beliefs about religion, politics or personal identity , and a question of the delusionality of those beliefs will arise. Delusionality also enters the adjudicatory process when the issues of intentionality, compulsion, or the reasonableness of the defendant's conduct may be related to a delusion. Finally, delusionality is an important aspect of risk assessment with respect to release decisions.
Although there are surprisingly few studies on the frequency and nature of delusions among NGRI defendants, indirect data, as well as experience, suggest that delusionality is a vital issue. Delusions are highly prevalent among individuals who suffer from psychosis (Winters and Neale, 1983)(56); in turn, roughly half of those defendants who raise the insanity defense and 70% of insanity acquittees have psychotic diagnoses (Andreasen & Flaum, 1994; Cirincione, Steadman & McGreevy, 1995; Ogloff, Schweighofer, Turnbull & Whittemore, 1992; Rice & Harris, 1990; Taylor et al., 1994). Moreover, delusions are specifically and substantially related to violence (Taylor et al., 1994).
In an extensive analysis of case records, Häfner and Böker (1982) found that 70% of individuals with schizophrenia who were accused of homicide had delusional beliefs about their relationship to their victim. Similarly, in an interview study, Taylor (1985) found that 40% of psychotic defendants acted directly upon delusions during their offenses. The frequency of nonpathological, but radical religious and/or political beliefs, and the extent of the relationship between these beliefs and violence has not been systematically studied (Taylor et al., 1994). However, defendants whose criminal acts are related to such fervently held beliefs are clearly plausible candidates for mental state evaluations.
Distinguishing between radical beliefs and delusions is a difficult, but critical task in assessing criminal responsibility(57). Respecting the principles of autonomy and self determination, our legal system holds responsible the extremist who chooses to act upon a radical system of beliefs, expressing her desires, values, and "personhood" through the crime (see Hermann, 1990). The basic moral logic of the insanity defense, however, excuses the mentally disordered individual who acts upon a pathological, uncontrollable belief system that distorts her sense of reality, thereby impairing her capacity for rational choice Arguably, the same logic also applies to delusions which would "justify" the actions(58).
Notwithstanding the centrality of this issue in assessing criminal responsibility, there are relatively few data oriented studies or professional practice standards available in the forensic literature to aid in assessing the delusionality of beliefs. In "grey area" cases, or cases in which defendants are neither clearly sane nor insane, the classification of beliefs as delusory is presumably a major source of disagreement among examiners. There is no "bright line" of demarcation between extreme beliefs and delusions (Garety & Hemsley, 1994; Oltmanns, 1988). Moreover, religious and political belief systems, which reference nonphysical entities and events, are not scientifically testable; consequently, there is "no full standard of truth independent of what the [defendant] says" (Taylor et al., 1994, p. 167; Saks, 1991). For these reasons, in this section we will review recent progress in defining and assessing delusions and their likely consequences. The purpose of this section is to introduce readers to the complex issues involved in assessing delusions and to aid clinicians in conducting informed assessments of defendants' beliefs in the context of insanity evaluations. Emphasis is placed upon issues relevant to distinguishing between extreme religious or political beliefs and delusions.
The DSM-IV defines a delusion as follows:
A false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person's culture or subculture (e.g., it is not an article of religious faith). When a false belief involves a value judgment, it is regarded as a delusion only when the judgment is so extreme as to defy credibility ... . (American Psychiatric Association, 1994, p. 765, emphasis added)
Although this "concise and handy" definition is adequate for most forensic and clinical purposes, its shortcomings are readily exposed when one attempts to delineate its boundaries (Sedler, 1995). As noted above, there is often no standard of proof by which to assess the falsity of beliefs in many religious, political or identity systems. Similarly, it is difficult to evaluate the incredibility or implausibility of beliefs: clinicians rarely agree upon the extent to which beliefs are bizarre (Flaum, Arndt & Andreasen, 1991; Oltmanns, 1988; Spitzer, First, Kendler & Stein, 1993; cf. Mojtabai & Nicholson, 1995). The degree of conviction with which a belief is held also does not clearly distinguish between delusional and nondelusional beliefs. Like delusional beliefs, nondelusional but highly valued beliefs are often held with great zeal and intensity even in the face of contradictory evidence. Moreover, most patients shift between periods in which they are certain about their delusions and periods in which they have partial or full insight (see Harrow, Rattenbury & Stoll, 1988; Sacks, Carpenter & Strauss, 1974).
These difficulties are "frequently compounded by ambiguity surrounding the presence or absence of cultural support for the person's belief" (Oltmanns, 1988, p. 3). It is difficult to determine the extent to which the nature of a belief, its experience, or its expression must deviate(59) from that accepted by a designated subgroup to classify as delusional. Clearly, examiners must have considerable knowledge of the social, religious, political and even scientific context of a defendant's belief to adequately assess its delusionality (see Barnhouse, 1986; Oltmanns, 1988). Failure to carefully consider patients' subcultural and religious background often results in misdiagnosis (see Lu, Lukoff & Turner, 1994).
Most current attempts to systematically analyze delusions are based upon the seminal work of Jaspers(60) (1963; see Garety & Hemsley, 1994; Mullen, 1979, 1985; Sedler, 1995). Jaspers arguably provides the most comprehensive, enduring, and clinically useful theory for distinguishing among various categories of delusional and nondelusional beliefs. A simplified summary of this theory focused on differentiating delusional from nondelusional beliefs per se will be presented here (see Walker, 1991 for detail).
Jaspers argued that the criteria of conviction, imperviousness to counter-argument and impossibility or bizarreness were insufficient(61) external criteria that did not capture the essence of delusionality(62). Rather, "overvalued beliefs," or even "delusion-like ideas(63)" could be distinguished from primary delusions, based upon Jaspers' approach, by attention to three more fundamental criteria. First, primary delusions are distinguished from secondary delusions and beliefs which are merely overvalued based upon the extent and nature of their "un-understandability.(64)" Secondly, primary delusions are "unmediated(65)" by thought, analysis, deduction or reflection, while overvalued ideas and secondary delusions reflect varying degrees of cognitive appraisal and inference. Third, primary delusions reflect a distinctive change in an individual's personality functioning(66), that is, they are a distinct change in the totality of the individual's personal meanings and ways of construing the world.
An overvalued idea is understandable, the product of cognitive interpretation, and can be viewed in terms of an individual's personality, life experiences, and socio-cultural background. Overvalued ideas are relatively easily understood "as exaggerations, diminutions, or combinations of phenomena which we ourselves experience" (Jaspers, 1963, quoted in Walker, 1991, p. 100). In contrast, a secondary delusion ("crazy idea") is only understandable in the sense that it emerges through one's process of reasoning about psychopathological experiences (e.g., based upon the quiet voices and buzzing an individual occasionally hears, she arrives at the conclusion that she is a target of government surveillance). A primary delusion is not understandable because it originates in a direct, immediate experience of new meaning unmediated by thought and unconnected to the person's fundamental personality (e.g., one sees a "man in a brown coat...he is the dead Archduke," Walker, 1991, p. 99). Thus, while overvalued ideas have "clear precedent" in an individual's existing personality and meaningful life events, secondary delusions emerge from other psychopathological experiences and primary delusions fundamentally change an individual's personality or "way of looking at the world" (Walker, 1991). Although Jaspers' classification has been subject to little empirical research and can be criticized for relying heavily upon the subjective criterion of "understandability" (Mullen, 1985), his theory provides useful guidance in conceptualizing the key distinctions among delusions and overvalued ideas.
Since Jaspers' work, there has been a recent, "emerging consensus that delusions are complex, multidimensional phenomena" (Taylor et al., 1994, p. 163). As demonstrated above, delusions cannot be fully defined by checklists of necessary and sufficient criteria (Oltmanns, 1988). Thus, researchers have begun to view delusions as beliefs which deviate "to a greater or lesser extent from normal beliefs along a number of dimensions." (Garety & Hemsley, 1994, p. 40). Based upon this dimensional conception, several instruments have been developed to aid in assessing delusions (see Garety & Hemsley, 1994, chaps. 4-5; Harrow, Rattenbury & Stoll, 1988; Kendler, Glazer & Morgenstern, 1983; Taylor et al., 1994). A particularly promising example of these instruments will be described below.
Several instruments are available to aid in assessing whether beliefs are delusional, explore and describe their content, and determine their core dimensions and likely consequences. These instruments have promising psychometric characteristics and appear to be useful in forensic and risk assessment contexts.
Determining whether beliefs are delusional. Traditional psychological tests such as the MMPI-2 or Rorschach, or newer instruments such as the Personality Assessment Inventory, are not "magic bullets," but can be useful sources of supplementary information to aid in determining the probability of delusional thinking. Delusions are highly prevalent among individuals with psychosis: in fact, "delusion has long been regarded as one of the central characteristics of psychosis or madness, and [usually] involves more than false and arbitrary ideas..." (Mullen, 1985, p. 17; Andreasen & Flaum, 1994). Thus, profile patterns and clinical signs indicative of thought disorder or other manifestations of psychosis increase the likelihood that an extreme belief is pathological(67). However, potentially delusional beliefs are complex phenomena that require direct, specific assessment focused on discerning the nature of the belief, the phenomenology and organization of experiences relevant to the belief, and the extent to which the belief and its expression are understandable based upon the defendant's personality or socio-cultural background. Thus, traditional psychological tests are relatively less important than detailed interviews of the defendant and knowledgeable others and careful reviews of relevant legal and mental health records (see below). The latter data are also necessary to address the core issue of the extent to which possibly delusional thinking is related to the defendant's mental state at the time of the offense.
Several structured interviews have been developed to increase the reliability and validity of diagnoses and/or to improve the quality and comprehensiveness of clinical interviews (see Andreasen, Flaum & Arndt, 1992; Luria & Guziec, 1981; Manchanda, Hirsch & Barnes, 1989). The Present State Examination (PSE-9, Wing, Cooper & Satorius, 1974) is grounded in the phenomenological approach and was created primarily for the latter purpose. The most recent revision, PSE-10, is compatible with DSM-IIIR, DSM-IV and ICD-10 diagnostic systems (Wing, 1996). The PSE is, in our opinion, the most comprehensive structured interview available to aid in assessing the delusionality of beliefs. The PSE is closely linked to Jasper's approach, distinguishes between partial and full delusions, and includes detailed attention to the potential influence of the defendant's religious and political subculture on her beliefs. Moreover, "at the heart" of the PSE is a comprehensive symptom glossary which aids in making relatively fine distinctions with respect to each item.
Although data are apparently not yet available for the PSE-10, the PSE-9 demonstrates rates of agreement comparable to or exceeding those of other structured interviews (see Luria & Guziec, 1981; Manchanda & Hirsch, 1986). The PSE-9 inter-rater reliability for delusions is excellent and comparable to that achieved with Andreasen's (1987) Comprehensive Assessment of Symptoms and History (CASH) and the anchored Brief Psychiatric Rating Scale (Andreasen et al., 1992; Gabbard et al., 1987; Lukoff, Lieberman & Nuechterlein, 1986; World Health Organization, 1979) .
Exploring and describing the content of possible delusions. The PSE provides definitions, sample inquiries, and rating points not only for assessing the basic delusionality of beliefs, but also for exploring what kind of potentially delusional ideas a defendant holds (e.g., grandiose, referential, persecutory, thought insertion). The CASH (Andreasen, 1987), a structured interview for assessing major mental illness, provides little guidance in defining basic delusionality, but covers a wider range of delusional content than the PSE. In addition to detailed definitions and probes for exploring specific kinds of delusions, the CASH includes an extensive rating system for various types of formal thought disorder (i.e., derailment, illogicality, pressure) and other positive and negative symptoms of schizophrenia. A comprehensive analysis of these symptoms can highlight sometimes subtle signs of psychosis. When a defendant expresses herself in a relatively disconnected fashion, this arguably increases the probability that her beliefs are delusional rather than merely eccentric.
Unfortunately, we could not find reliability data for the types of delusions where examiner (dis)agreement is of most interest for our purposes, namely, "grey area" religious and political delusions or over-valued ideas. Reliability for less nebulous types of delusions is, however, quite high when structured interviews are employed. For example, the PSE-9 has excellent rates of inter-rater reliability with respect to paranoid delusions, (interclass r=.93), grandiose delusions (r=.93), and delusions of passivity (r=.92) (Amador, Strauss, Yale & Gorman, 1991).
Determining the contours or dimensions of a delusion. As explained above, several leaders in the study of delusions have begun to conceptualize delusions as beliefs which differ from normal beliefs across various sets of dimensions, and have created assessment instruments to assess delusions as multidimensional phenomena. Pamela Taylor and her colleagues (1994) have developed a sophisticated version of such an instrument, the Maudsley Assessment of Delusions Schedule (MADS). The MADS is a structured interview designed to reliably and validly assess key dimensions and possible consequences of an individual's "principal abnormal belief" (e.g., the belief the individual deems most important). This purpose is relevant to evaluations of criminal responsibility and disposition in that it emphasizes links among delusional dimensions and violence. Taylor and her colleagues suggest that clinicians use the MADS after they have administered the delusion subsection of the PSE to determine the delusionality of beliefs and identify their content. The key dimensions assessed by the MADS were derived from prior research and the MADS item development studies. They include: (1) conviction, (2) belief maintenance factors (i.e., seeking evidence to support the belief, reaction to belief-challenging information), (3) affective impact of the belief, (4) preoccupation with the belief, (5) systematization of the belief, (6) idiosyncrasy of the belief, (7) insight, and (8) manner and degree of action on belief. Items related to the "action" dimension reflect three types of action on the basis of delusion: (a) aggression toward self or others; (b) defensive action such as withdrawal; and ( c) no action or single, unobtrusive action (Wesseley et al., 1993). The MADS has excellent inter-rater reliability (M kappa=.82), and good test-retest reliability (M kappa=.63) (Taylor et al., 1994).
Dimensions of delusions associated with violence. The MADS has been used to investigate the frequency of acting upon delusions and the characteristics of delusions that are associated with acting violently. Wesseley et al. (1993; see also Taylor et al., 1994) found that, of 83 delusional patients studied over a brief 28 day period, 60% reported having acted in some way on their delusions, but only 11% reported having acted violently toward themselves or others based on their delusions. The authors attempted to relate particular types of delusions to propensities toward general action and found that only persecutory delusions were particularly likely to be directly acted upon (violently or nonviolently). Two dimensions of delusions that are assessed by the MADS were related to action in general: belief maintenance factors and affective impact (see Buchanan et al., 1993). Specifically, acting "on a delusion was associated with being aware of and having actively sought 'evidence' that supported [or refuted] the belief together with, paradoxically, some reduction in the conviction with which the belief was held on direct challenge. Acting was also associated with a range of affective changes (e.g., increase in [sadness], fear or anxiety) which the patient attributed to the belief" (Taylor et al., 1994, p. 176).
Other data on dimensions of psychotic belief also support the importance of assessing the nature and characteristics of delusionality thoroughly. Link and Stueve (1994) found that what they term "threat/control override symptoms" (thoughts and delusions about being harmed, having one's mind controlled, thought insertion, etc.) were a significant factor in accounting for community aggression and weapons use. Steury and Choinski (1995) also uncovered some interesting relationships in a relatively elegant descriptive and correlational analysis of violent crime characteristics that distinguish mentally ill defendants from non-mentally ill defendants. Compared with non-mentally ill defendants, mentally ill defendants' crimes more often involved, for example, lack of apparent motive, delusional motive, relatively unplanned actions, more use of knives than guns, and no history of conflict or trouble with the victim combined with a greater likelihood of arguing with the victim at the onset of the offense. Notably, mentally ill defendants' victims were less often strangers. These data, taken together with Taylor's work, obviously need replication in larger samples with careful attention to the complex dimensions of delusion. Nevertheless, they point the way for sophisticated forensic research on delusionality and its relationship to criminal responsibility (see Mulvey, 1994 for a similar analysis).
Inherent in a original decision to find a defendant "not guilty by reason of insanity" is concern about the ultimate "disposition" of such acquittees. Jurors place a great deal of emphasis on this issue in their deliberations (see this chapter and Golding, 1992). Further, a comparison of data on the rates and success of insanity pleas and the nature of insanity dispositions with data on public perceptions about these issues clearly reveals that the public over-estimates the frequency and successfulness of the insanity plea and under-estimates the nature and length of institutionalization following an insanity "acquittal" ( Silver, Cirincione & Steadman, 1994). Curiously, in Shannon v. United States (1994), the Supreme Court held that NGRI defendants have no right to a jury instruction which makes clear the post-"acquittal" commitment process, since such an instruction would violate the long standing principle that a jury must base its verdict on the evidence before it. While this may be "correct" jurisprudential theory, it violates "common-sense justice" in that we have strong reasons to be believe that jurors do pay attention to this issue, and that their assumptions are incorrect (see above)(68).
In Jones v. United States (1983), the Supreme Court of the United States affirmed that because an insanity acquittee was not guilty of a criminal offense, a principled and constitutional approach to the disposition of insanity acquittees must focus on the issues of mental disorder and its relationship to future dangerousness, not on the length of incarceration associated with the acquittee's underlying criminal conduct(69). Also, in order to commit an insanity acquittee, the state must prove only by a preponderance of the evidence that the acquittee is mentally ill and dangerous. Implied in the decision, is the assumption that the court may place a higher burden on the defendant to prove, in future release hearings, that she was no longer mentally ill and not at a high risk for future dangerous behavior. The assumption that the Court is comfortable with such asymmetries in the civil vs. criminal commitment context is reinforced by their decisions in Foucha v. Louisiana (1992) and Kansas v. Hendricks (1997). In a complex decision, four justices in Foucha held Louisiana's broad NGRI commitment statute unconstitutional because it would allow continued confinement of insanity acquittee's based upon dangerousness alone. In contrast, four other justices (now in clear majority on the Court) would have allowed the commitment on the grounds that the NGRI verdict was sufficient to justify the continued commitment, especially in light of the vagaries of mental illness. In her determining vote, Justice O'Connor agreed that, as written, the broad Lousiana statute was unconstitutional, but the commitment could be constitutional "if, unlike the situation in this case, the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness" (at 88-89). It is unfortunate that this critical decision was argued in the context of Foucha, whose original NGRI was based upon a "drug induced psychosis" (which is an atypical ground for an insanity defense) and that his "lack of mental illness" at petitioned release was "antisocial personality disorder." Nevertheless, the trend of the Court is clearly in the direction of loose boundaries with respect to the criteria for mental illness (Hendricks) and the criteria for dangerousness in the post-conviction/NGRI context.
One of the unappreciated consequences of an NGRI disposition is that the adjudicating court can maintain jurisdiction and control via monitoring programs, conditional release, and revocation for a virtual life-time period if needed. As Jones v. United States (1983) made clear, the criterion for ultimate release is non-dangerousness as well as relevant concern with the role of current mental illness.
Insofar as many insanity acquittees have significant life-long psychopathological difficulties that are only controlled to a certain extent and are subject to fluctuations associated with variable dangerousness (Golding et al., 1989), systematic programs for trained professionals to monitor insanity acquittees' release makes a good deal of sense (Bloom, Williams & Bigelow, 1991). Although little attention has been paid to this problem in the majority of jurisdictions, those jurisdictions that have implemented such systems uniformly report positive results. Well known conditional release programs exist in British Columbia, California, Maryland, New York, Oregon, and several other states (Bloom et al., 1991; Golding et al., 1989; Griffin, Steadman & Heilbrun, 1991; Heilbrun & Griffin, 1993; Heilbrun et al., 1994; McGreevy et al., 1991; Psychiatric Security Review Board, 1994; Silver & Tellefsen, 1991; Tellefsen et al., 1992; Wiederanders, 1992; Wilson, Tien & Eaves,1995). The coordination, control and training of community supervisors is critical to the success of these programs (Golding, 1991), especially with reference to ongoing monitoring of a supervisee's risk status (Wack, 1993).
Wiederanders (1992) followed a group of insanity acquittees who had been conditionally released with follow-up supervision under tightly controlled circumstances (CONREP) with a group of insanity acquittees that had been released because they reached their maximum sentences (MAXOUT). The groups are obviously constituted non-randomly, but Wiederanders demonstrates that they were substantially equal on known predictors of recidivism. The two groups were found to differ dramatically both in their frequency of failure of community tenure ( 5.8% v. 27.3%), and in their rate of failure (faster for the unsupervised group). Wiederanders attributes such differences to the ability to monitor deterioration and to intervene earlier and in a preventative fashion. Results from all of the community supervision programs referenced previously are consistent with this conclusion. The empirical proposition, though not yet fully tested, makes clinical, legal and social policy sense. If this population is known to be more difficult to treat (due to ineffectiveness of medication, medication refusal, fluctuating clinical/dangerousness course, etc.), then a balanced conditional release program, which errs on the side of false positives (revoking community tenure and re-instituting a higher level of supervision), is a rational system. It also appears to be an empirically justifiable system.
An unstudied aspect of the dispositional issue has to do with the ultimate costs and effectiveness of placing prototypic insanity acquittees in forensic treatment contexts versus placement in traditional correctional facilities. Although some data clearly support the monitored release of NGRI acquittees, the larger trend, in those states with either guilty but mentally ill or highly restricted (or non-existent) insanity defenses, is to place such defendants in correctional environments for the majority of their sentence or institutionalization. Wiederanders (1992; Wiederanders & Choate, 1994) and Golding et al. (1989) have shown that articulated follow-up of insanity acquittees in the community is feasible and worthy of study. What we do not have is informative data on the differences between similar individuals "treated" in correctional versus forensic mental health contexts. We know of no empirical studies of this issue, but clearly they are now quite timely. With respect to mental health economics, the question is whether society eventually pays "more" or "less" for treating mentally disordered offenders in prison or in forensic mental health systems. Clearly, the cost per diem while initially incarcerated will favor prison over mental health system dispositions. However, the analysis also needs to include days institutionalized, days in the community at lower cost, and the likelihood and financial, emotional, and moral costs of recidivism. Again, we know of no direct data, but, on logical grounds, we would propose that treated and supervised mentally ill and dangerous offenders would cost less, financially and emotionally, than prison incarcerated mentally ill offenders who receive less mental health treatment and supervision(70).
FOOTNOTES
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1. For a comprehensive and scholarly reviews of the history of the mens rea doctrine, see Sayre (1932), Stroud (1914) and Morse (1992). The problem is how to consider the conjunction of the proscribed behavior (actus reus)and an appropriate degree and type of intentionality and mental capacity (mens rea) in ascribing guilt or culpability(2)
2. Just as ordinary social judgments of whether or not an act was dominant, aggressive, kind, or friendly, for example, cannot be accurately made without some presumption or knowledge of the actor's intentions and capacities, so too in the criminal law the same principle holds, and one finds that blameworthiness or criminal responsibility cannot be "justly ascribed" without the conjunction of an actus reus and mens rea.
3. It is a defense ... that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged. Mental illness is not otherwise a defense." (Utah Annotated Code, §76-2-305, 1997). Other states that follow the abolitionist approach are Montana and Idaho. Curiously, the essence of the American Law Institute standard for insanity appears as a mitigating condition at sentencing in all three abolitionist jurisdictions-- "Evidence of mental condition shall be received, if offered, at the time of sentencing, ... the court shall consider such factors as ... the capacity of the defendant to appreciate the wrongfulness of this conduct or to conform his conduct to the requirements of law at the time of the offense charged" [Idaho Code, Section 19-2523(1); see similar language in Section 46-14-312(a) of the Montana Code and Section 76-3-207(3)(d) of the Utah Code]. This approach has consistently survived constitutional challenge (State v. Korell, 1984; State v. Herrera & Sweezey, 1995). Unfortunately, all Courts hearing this abolitionist issue have effectively side-stepped the "ultimate justice" issue by observing that legislatures may, within their power, adopt such jurisprudential strategies, however unwise it may be.
4. These issues are reviewed in full in Golding (1992), Melton et al. (1997), and Perlin (1994). The abolitionist position still holds sway in Utah, Idaho and Montana, where a restricted "mens rea" only defense is allowed. The traditional ALI "substantial incapacity to appreciate or inability to conform" criteria is now less common, and the reformed ALI/M'Naghten rule (the traditional test, minus the "volitional prong" [discussed at length in Golding and Roesch, 1987]), common in Federal and state statutes, are the modal view of NGRI criteria.
5. We address later studies of decision-making with respect to their implications for what factors are weighed in decision-making and the influence of jury instructions and insanity defense standards.
6. The "success" rates vary wildly in Silver's review from 7% to 87%, averaging 26%. Unfortunately, as described above, no attempt was made to code clinical characteristics of the defendants beyond simple diagnosis, and there is a high likelihood of extreme jurisdictional differences in the types of clinical "pictures" presented. For earlier studies and summaries of "success rates, see Janofsky et al. (1989) and Pasewark (1986).
7. See references and comments at Note 19.
8. A detailed examination of a large NGRI cohort by Golding, Eaves and Kowaz (1989) found that 78.7% had been previously hospitalized, with a mean of 4.11 hospitalizations; 43.4% of these prior admissions were for forensic reasons. Over half of the subjects with prior admissions were discharged within one year of their index offense and 44.6% committed their index offense within six months of their last discharge.
9. Included in both these research traditions are dimensions such as (a) ability to think and reason rationally and clearly, (b) capacity to perceive and be aware without distortion, (c) capacity to choose courses of action, (d) rational motivation for actions, (e) ability to control thoughts, feelings and behaviors and responsibility for altering one's mental state by intoxication, non-compliance with medication, and other factors..
10. See Simon (1967) for a review of first generation work with more representative juror samples.
11. For an excellent review of the strengths and weaknesses of jury simulation studies, see Diamond (1997).
12. Roberts and Golding (1991) have consistently found effects for GBMI alternatives, as have others. However, the effect, we believe, is largely mediated by juror construals, as they also argue.
13. As Diamond (1997) observes, many of the effects and their strength depend upon the way in which the verdicts are formulated, the alternatives, existence of contextual effects, and so forth.
14. A proposition for which there is little empirical support. While a review of the evidence on malingering is beyond the scope of this chapter, the issue is comprehensively addressed in R. Rogers (Ed). (1997). A variety of increasingly sophisticated techniques are available. See also Gacono et al. (1995) and Gothard et al. (1995) for specific applications in insanity and incompetency populations. In practice, most issues of malingering are detected by inconsistencies with mental health records, witness statements, observations by ward or correctional personnel, and crime scene evidence, in addition to psychological test scores and other such data. See the section on "Third Party Information."
15. As analyzed in the section of Disposition of Insanity Acquittees, the public may be poorly served by dispositions which treat NGRI acquittees as criminal convicts rather than dangerously mentally ill individuals.
16. A number of attitudinal items are available, but have not been extensively studied nor cross validated (Golding, 1992). Skeem (1997) is trying to improve on the psychometric qualities of these prior scales.
17. This is especially true in the examination of amnesia ( Rogers, 1997; Schachter, 1996; 1986a, 1986b; Taylor & Kopelman, 1984). There is a useful descriptive literature on the characteristics of amnesias under various circumstances, which is not definitive, but which provides useful cues for examining the "consistency" of a defendant's claims.
18. In an actual case, the defendant described his revelatory experience in subculturally normative terms, i.e. he prayed and asked for guidance from God about a particular problem, awoke to find his mind "inspired" by God's revelation, and wrote out his revelation with the "ideas in his mind" controlling the content. He did not experience this as a hallucinatory phenomenon, did not experience any indications of mania, and experienced himself as choosing the words to use as he inspected his mind. The themes and emotional content of the revelation were consistent with his personal history and individual belief. He cautiously approached others in his close circle of like-minded friends with the details of the "revelation."
19. The adult victim and intended victims had challenged his attempts to set up a sub-group based upon his prophetic leadership; an infant victim was the only child of the adult victim, who would "spread her seed."
20. Research on the reliability of forensic judgments of insanity (summarized in Melton et al. [1997], Golding (1992), Hoge & Grisso (1992) and Rogers & Ewing (1992) reveals high rates of agreement amongst well trained examiners using similar conceptual schemes. Careful reading of the studies reviewed also points indirectly to those types of cases likely to be contested: co-morbidity with personality disorder, highly idiosyncratic and paranoid religious, political or identity systems, intoxication or failure to take medications, and extremely bizarre conduct.
21. Particularly relevant to forensic assessments, they argue that delusions of reference, persecution and control are particularly prevalent.
22. As may be seen in the competence literature, the courts and examiners regularly distinguish between radical beliefs and delusions, treating as "rational" and valid decisions and actions which express unconventional, extreme beliefs rather than delusions (Golding, 1993, Saks, 1991).
23. In Georgia, a defendant who cannot establish an insanity defense on the grounds of mental incapacity to distinguish "right from wrong," can nevertheless sustain an insanity defense on the grounds that the delusion "leads him to believe that his action is right, i.e. 'Justified'"and that, under those circumstances, his actions would have been legally justifiable (Lawrence v. State 1995, underlined materials added for clarification).
24. Consider "delusions" versus idiosyncratic ideas in revelatory religions. What distinguishes a delusion from an idiosyncratic revelation? Vote of the church authorities? The number of persons who believe the revelation? What are the normative phenomenological experiences of "normal" recipients of revelation? These issues are troublesome and have not received empirical attention.
25. For an interesting historical analysis and critique of Jaspers, see Berrios (1991).
26. Interestingly, many modern and otherwise informative accounts of the problem of clinically assessing delusionality, mistakenly refer to the external criteria as the essence of Jasper's system (M. Spitzer, 1990).
27. "To say simply that a delusion is a mistaken idea which is firmly held by the patient and cannot be corrected gives only a superficial and incorrect answer to the problem" (Jaspers, 1963, p. 93).
28. "Wahnhafte Ideen," literally "crazy-like ideas" as opposed to "Unsinn," insane ideas.
29. Primary delusions are "unverständlich," that is "un-understandable." Unlike normal ideas, overvalued beliefs and "crazy-like" ideas, they do not "emerge understandably from other psychic events and can(not) be traced back psychologically to certain affects, drives, desires and fears" (Jaspers, 1963, Professional Psychology: Research and Practice. 106-107).
30. Real delusional experience is "unmittlebar," i.e. unmediated by thought processes. "Primary delusional experience is the direct, unmediated, intrusive knowledge of meaning ... not considered interpretations, but meaning directly experienced" (Jaspers, 1963, Professional Psychology: Research and Practice. 99-100).
31. "Umwändlung der Persönlichkeit."
32. This is an important direction for future research. Regrettably, most of the clinical literature on delusional disorder (DSM 297.1) does not include comprehensive assessment of thought disorder from a psychometric or language analysis perspective. Thus, when criteria for delusionality are vague and there is no obvious clinical thought disorder or other schizophrenic or affective psychotic indicators, delusional disorder is often the subject of controversy in forensic applications.
33. In fairness, the Shannon majority would allow such instructions to counter-act overt testimony by a witness or a prosecutor that the "defendant would go free," when this is not the jurisdictional rule. This reinforces our earlier comments about the importance of voir dire in NGRI juror selection.
34. Jones had stolen a coat from a department store. The Court presumes that any criminal act is presumptive of dangerousness, however counter-intuitive that may be. Despite the legal standard's focus on mental disorder and its relationship to future dangerousness, the available empirical evidence strongly suggests a different view. Length of initial periods of hospitalization for NGRI acquittees has been found, in general, to be primarily determined by the nature of the individual's criminal offense ( see Golding [1992] for a review). In addition, while there is some variability in findings, NGRI acquittees are generally not institutionalized for periods of time that are significantly shorter than either unsuccessful NGRI pleaders or non-NGRI convictees (Silver, 1995). If anything, the trend is towards longer periods of incarceration.
35. Hafemesiter & Petrila's (1994) excellent review of treatment of mentally disordered offenders suggests this direction, but there do not appear to be any empirical studies directly on point.
36. For a comprehensive and scholarly reviews of the history of the mens rea doctrine, see Sayre (1932), Stroud (1914) and Morse (1992). The problem is how to consider the conjunction of the proscribed behavior (actus reus)and an appropriate degree and type of intentionality and mental capacity (mens rea) in ascribing guilt or culpability(37)
37. Just as ordinary social judgments of whether or not an act was dominant, aggressive, kind, or friendly, for example, cannot be accurately made without some presumption or knowledge of the actor's intentions and capacities, so too in the criminal law the same principle holds, and one finds that blameworthiness or criminal responsibility cannot be "justly ascribed" without the conjunction of an actus reus and mens rea.
38. It is a defense ... that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged. Mental illness is not otherwise a defense." (Utah Annotated Code, §76-2-305, 1997). Other states that follow the abolitionist approach are Montana and Idaho. Curiously, the essence of the American Law Institute standard for insanity appears as a mitigating condition at sentencing in all three abolitionist jurisdictions-- "Evidence of mental condition shall be received, if offered, at the time of sentencing, ... the court shall consider such factors as ... the capacity of the defendant to appreciate the wrongfulness of this conduct or to conform his conduct to the requirements of law at the time of the offense charged" [Idaho Code, Section 19-2523(1); see similar language in Section 46-14-312(a) of the Montana Code and Section 76-3-207(3)(d) of the Utah Code]. This approach has consistently survived constitutional challenge (State v. Korell, 1984; State v. Herrera & Sweezey, 1995). Unfortunately, all Courts hearing this abolitionist issue have effectively side-stepped the "ultimate justice" issue by observing that legislatures may, within their power, adopt such jurisprudential strategies, however unwise it may be.
39. These issues are reviewed in full in Golding (1992), Melton et al. (1997), and Perlin (1994). The abolitionist position still holds sway in Utah, Idaho and Montana, where a restricted "mens rea" only defense is allowed. The traditional ALI "substantial incapacity to appreciate or inability to conform" criteria is now less common, and the reformed ALI/M'Naghten rule (the traditional test, minus the "volitional prong" [discussed at length in Golding and Roesch, 1987]), common in Federal and state statutes, are the modal view of NGRI criteria.
40. We address later studies of decision-making with respect to their implications for what factors are weighed in decision-making and the influence of jury instructions and insanity defense standards.
41. The "success" rates vary wildly in Silver's review from 7% to 87%, averaging 26%. Unfortunately, as described above, no attempt was made to code clinical characteristics of the defendants beyond simple diagnosis, and there is a high likelihood of extreme jurisdictional differences in the types of clinical "pictures" presented. For earlier studies and summaries of "success rates, see Janofsky et al. (1989) and Pasewark (1986).
42. See references and comments at Note 19.
43. A detailed examination of a large NGRI cohort by Golding, Eaves and Kowaz (1989) found that 78.7% had been previously hospitalized, with a mean of 4.11 hospitalizations; 43.4% of these prior admissions were for forensic reasons. Over half of the subjects with prior admissions were discharged within one year of their index offense and 44.6% committed their index offense within six months of their last discharge.
44. Included in both these research traditions are dimensions such as (a) ability to think and reason rationally and clearly, (b) capacity to perceive and be aware without distortion, (c) capacity to choose courses of action, (d) rational motivation for actions, (e) ability to control thoughts, feelings and behaviors and responsibility for altering one's mental state by intoxication, non-compliance with medication, and other factors..
45. See Simon (1967) for a review of first generation work with more representative juror samples.
46. For an excellent review of the strengths and weaknesses of jury simulation studies, see Diamond (1997).
47. Roberts and Golding (1991) have consistently found effects for GBMI alternatives, as have others. However, the effect, we believe, is largely mediated by juror construals, as they also argue.
48. As Diamond (1997) observes, many of the effects and their strength depend upon the way in which the verdicts are formulated, the alternatives, existence of contextual effects, and so forth.
49. A proposition for which there is little empirical support. While a review of the evidence on malingering is beyond the scope of this chapter, the issue is comprehensively addressed in R. Rogers (Ed). (1997). A variety of increasingly sophisticated techniques are available. See also Gacono et al. (1995) and Gothard et al. (1995) for specific applications in insanity and incompetency populations. In practice, most issues of malingering are detected by inconsistencies with mental health records, witness statements, observations by ward or correctional personnel, and crime scene evidence, in addition to psychological test scores and other such data. See the section on "Third Party Information."
50. As analyzed in the section of Disposition of Insanity Acquittees, the public may be poorly served by dispositions which treat NGRI acquittees as criminal convicts rather than dangerously mentally ill individuals.
51. A number of attitudinal items are available, but have not been extensively studied nor cross validated (Golding, 1992). Skeem (1997) is trying to improve on the psychometric qualities of these prior scales.
52. This is especially true in the examination of amnesia ( Rogers, 1997; Schachter, 1996; 1986a, 1986b; Taylor & Kopelman, 1984). There is a useful descriptive literature on the characteristics of amnesias under various circumstances, which is not definitive, but which provides useful cues for examining the "consistency" of a defendant's claims.
53. In an actual case, the defendant described his revelatory experience in subculturally normative terms, i.e. he prayed and asked for guidance from God about a particular problem, awoke to find his mind "inspired" by God's revelation, and wrote out his revelation with the "ideas in his mind" controlling the content. He did not experience this as a hallucinatory phenomenon, did not experience any indications of mania, and experienced himself as choosing the words to use as he inspected his mind. The themes and emotional content of the revelation were consistent with his personal history and individual belief. He cautiously approached others in his close circle of like-minded friends with the details of the "revelation."
54. The adult victim and intended victims had challenged his attempts to set up a sub-group based upon his prophetic leadership; an infant victim was the only child of the adult victim, who would "spread her seed."
55. Research on the reliability of forensic judgments of insanity (summarized in Melton et al. [1997], Golding (1992), Hoge & Grisso (1992) and Rogers & Ewing (1992) reveals high rates of agreement amongst well trained examiners using similar conceptual schemes. Careful reading of the studies reviewed also points indirectly to those types of cases likely to be contested: co-morbidity with personality disorder, highly idiosyncratic and paranoid religious, political or identity systems, intoxication or failure to take medications, and extremely bizarre conduct.
56. Particularly relevant to forensic assessments, they argue that delusions of reference, persecution and control are particularly prevalent.
57. As may be seen in the competence literature, the courts and examiners regularly distinguish between radical beliefs and delusions, treating as "rational" and valid decisions and actions which express unconventional, extreme beliefs rather than delusions (Golding, 1993, Saks, 1991).
58. In Georgia, a defendant who cannot establish an insanity defense on the grounds of mental incapacity to distinguish "right from wrong," can nevertheless sustain an insanity defense on the grounds that the delusion "leads him to believe that his action is right, i.e. 'Justified'"and that, under those circumstances, his actions would have been legally justifiable (Lawrence v. State 1995, underlined materials added for clarification).
59. Consider "delusions" versus idiosyncratic ideas in revelatory religions. What distinguishes a delusion from an idiosyncratic revelation? Vote of the church authorities? The number of persons who believe the revelation? What are the normative phenomenological experiences of "normal" recipients of revelation? These issues are troublesome and have not received empirical attention.
60. For an interesting historical analysis and critique of Jaspers, see Berrios (1991).
61. Interestingly, many modern and otherwise informative accounts of the problem of clinically assessing delusionality, mistakenly refer to the external criteria as the essence of Jasper's system (M. Spitzer, 1990).
62. "To say simply that a delusion is a mistaken idea which is firmly held by the patient and cannot be corrected gives only a superficial and incorrect answer to the problem" (Jaspers, 1963, p. 93).
63. "Wahnhafte Ideen," literally "crazy-like ideas" as opposed to "Unsinn," insane ideas.
64. Primary delusions are "unverständlich," that is "un-understandable." Unlike normal ideas, overvalued beliefs and "crazy-like" ideas, they do not "emerge understandably from other psychic events and can(not) be traced back psychologically to certain affects, drives, desires and fears" (Jaspers, 1963, Professional Psychology: Research and Practice. 106-107).
65. Real delusional experience is "unmittlebar," i.e. unmediated by thought processes. "Primary delusional experience is the direct, unmediated, intrusive knowledge of meaning ... not considered interpretations, but meaning directly experienced" (Jaspers, 1963, Professional Psychology: Research and Practice. 99-100).
66. "Umwändlung der Persönlichkeit."
67. This is an important direction for future research. Regrettably, most of the clinical literature on delusional disorder (DSM 297.1) does not include comprehensive assessment of thought disorder from a psychometric or language analysis perspective. Thus, when criteria for delusionality are vague and there is no obvious clinical thought disorder or other schizophrenic or affective psychotic indicators, delusional disorder is often the subject of controversy in forensic applications.
68. In fairness, the Shannon majority would allow such instructions to counter-act overt testimony by a witness or a prosecutor that the "defendant would go free," when this is not the jurisdictional rule. This reinforces our earlier comments about the importance of voir dire in NGRI juror selection.
69. Jones had stolen a coat from a department store. The Court presumes that any criminal act is presumptive of dangerousness, however counter-intuitive that may be. Despite the legal standard's focus on mental disorder and its relationship to future dangerousness, the available empirical evidence strongly suggests a different view. Length of initial periods of hospitalization for NGRI acquittees has been found, in general, to be primarily determined by the nature of the individual's criminal offense ( see Golding [1992] for a review). In addition, while there is some variability in findings, NGRI acquittees are generally not institutionalized for periods of time that are significantly shorter than either unsuccessful NGRI pleaders or non-NGRI convictees (Silver, 1995). If anything, the trend is towards longer periods of incarceration.
70. Hafemesiter & Petrila's (1994) excellent review of treatment of mentally disordered offenders suggests this direction, but there do not appear to be any empirical studies directly on point.