John Hinckley, the man who in l981 attempted to kill President Ronald Regan and has been serving an indefinite commitment in a psychiatric institution after having been found not guilty by reason of insanity, will be free to go home as early as this week.
His imminent release is prompting two questions: Is it fair to set free a man who almost killed the president and seriously wounded another? And, how can we be sure he’s no longer dangerous?
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Although the conservative media has criticized his parole as a great injustice and called for a new trial now that he is sane, they misunderstand how the law works.
First, the moment of mental competency that counts is the moment of the crime. The belief that people should only be held responsible for actions they intended is a long-held tenet of our legal system. Mens rea, literally “guilty mind,” must be proven beyond a reasonable doubt before a person can be convicted. Intent, an issue in every case, thus becomes a primary issue in cases involving the mentally ill.
Hinckley may have intended to pull the trigger and shoot President Reagan, but did he do so fully understanding the nature and consequences of his act?
Proving intent is complex and the definition of insanity differs from state to state. For defense counsel, proffering such a defense is so difficult, we’d almost rather invoke any other defense before choosing this. Why? Because of the amount of prejudice that surrounds it. I’ve found most jurors bend over backwards not to accept it, afraid that the person will be immediately released back to the community if they find him not responsible.
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The truth is, if a person is found not guilty by reason of insanity, he won’t be seeing freedom for a long time. First, the case gets kicked into the parallel universe of the state or federal psychiatric system (think “One Flew Over the Cuckoo’s Nest,” except worse) and once in psychiatric custody, the defendant could be kept there for years before anyone gives real consideration to the possibility that he is no longer dangerous.
Take a case I recently completed. A young man stabbed his father to death believing him to be an alien sent to kill him and his mother. After reviewing his long psychiatric history and learning that the defendant had stopped taking his medication for weeks just before the crime, the prosecutor agreed that the crime was caused due to psychiatric illness and not intentional criminal conduct. She permitted my client to enter a plea of “not responsible by reason of mental defect” instead of forcing the case to trial.
Everyone in my client’s family rooted for this decision. They all loved my client and having just lost the head of their family did not want to lose my client as well. Laying this decision at the feet of a jury would have been risky. They are not told during trial that if they find the defendant not guilty he would not be released but rather institutionalized indefinitely.
Yet it’s rare for a prosecutor to agree to such a defense before trial. In fact it was my first case striking such an agreement and apparently a first for the prosecutor as well. No one wants to be blamed for making this decision unless they are absolutely sure it is the right one.
I’m told by experts that even though my client’s family is hoping for him to be released from psychiatric confinement as soon as possible, he’s likely to remain institutionalized for at least ten years. Most of the facilities I’ve visited for people like my client are in some ways worse than prison. First, they’re full of other people with serious mental illnesses. Next, they are mostly understaffed, impersonal, and ill-equipped. The medical treatment is often one-size fits all — one brand of drug, one type of dosage — and there’s little individualized therapy.
My client is on Ward’s Island, a desolate strip of land in the East River difficult to get to for friends and family and secure as any maximum security prison.
There are statutes that dictate at what intervals my client must be reviewed for “dangerousness,” sometimes with up to two years between reviews. Nobody wants to let anyone out before they’re ready. If something bad were to happen following that person’s release, it would come back to haunt every person involved in the decision, especially the judge.
That’s why John Hinckley’s release should not alarm the public. He’s been in jail since his mid- 20’s. He’s now 61. He’s been released with baby steps since 2003 — overnights with his mom, community service projects, updates and testing and then more testing, all along the way.
Medications for mental illness have come a long way since Hinckley was first imprisoned. I’m told by psychiatrists that people who forget or choose not to take their medication can have patches affixed to their skin to guarantee they won’t forget or have the option to forego treatment.
People released are kept on a very short leash. Hinckley will be carrying a cell phone that will track his every movement. He’ll be required to volunteer or work three days a week, and his treatment providers will give frequent updates to officials supervising his case for the rest of his life. If Hinckley goes off the grid or fails to comply with any of the conditions of his release, he’ll be hospitalized or arrested immediately.
People change as does the hold of their psychiatric illnesses. Just because someone attempted to kill a president 35 years ago laboring under psychotic delusions involving Jodi Foster and “Taxi Driver” doesn’t mean he’ll commit a further violent act in his life.
If we are going to subscribe to the concept of mens reas then we have to apply it to everyone whether they killed their father or attempted to kill a president.
The system errs on the side of caution and leans toward keeping people institutionalized.
The only way a judge would have agreed to Hinckley’s release is if he and many others vetting Hinckley’s health and mental stability agreed that it was safe to do so.
Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at [email protected] or tonimessinalaw.com.