The Rarity of the Insanity Defense

When Titus Colbert was removed from court during his arraignment on November 13, it came after numerous outbursts in court. Colbert, who was charged with three counts of attempted murder after breaking into his ex-girlfriend's condo and shooting at law enforcement, claimed to be a member of the Illuminati by singing in front of the judge and reciting the organization's founding date repeatedly during the reading of his Miranda Rights.

In response to his removal from court, his Public Defender asked the court if proceedings in the case could be suspended until after a psychiatric evaluation to determine if he is mentally competent enough to stand trial.

While especially violent and high profile defendants, such as Andrea Yates or James Holmes, lead many to view this move as a frequently used abuse of the system and means of finding a defense where there is none, a 1991 study done by the National Institute of Mental Health found that the insanity plea is only raised in about 1 percent of all criminal cases and of those, only about one in four was successful.

However, considering that the Bureau of Justice Statistics found that 61 percent of state prison inmates had either a recent history or current symptoms of mental illness, despite popular belief, the relationship between mental health and crime suggest that more inmates could use the benefit of treatment rather than being put behind bars.

It's no secret that determining the relationship between mental health and crime is difficult. So difficult, that four states have abolished the insanity defense even though it exists as an affirmative defense under Federal Law. Since my legal experience stops at civil procedure, I reached out to local San Diego criminal defense attorney George Gedulin for an inside take on this case and how the insanity defense works.

What steps must a defendant go through before being sentenced?

"Before a criminal defendant can proceed to trial and present a defense based on insanity, the court must first decide if the defendant is mentally competent to stand trial. The evaluation is performed at the cost of the state with an experienced psychiatric expert, but the threshold to find a person competent to stand trial is very low. It is the rare case where an individual is found mentally incompetent to stand trial. However if they are, then legal proceedings are paused and the individual is evaluated for placement in a mental hospital until their mental state is normalized and they can be ready to stand trial. If a jury finds the defendant guilty and a plea of NGI (not guilty by reason of insanity) has been entered, the trial then moves into the insanity trial which determines the defendant's sentencing."

The severity of sentencing - or lack thereof - seems to be the largest public concern with the insanity defense, so how does it work? Can you ever leave to re-integrate with society?

"A defendant who is found guilty by insanity can potentially be sentenced to serve the full length of their sentence at a state mental hospital. However, the law does allow that a person may also be committed to a mental care facility in their local area instead. Anyone who is found not guilty by insanity can still be committed to a state mental health facility for the full length of their sentence but, the individual is always entitled to a hearing which determines their potential danger to the safety of others and if they can be placed in outpatient treatment which would allow for re-integration into society. The determination of where a defendant is placed is always based on the opinion of the treating physician and mental health program director."

If a large percentage of inmates have clear mental health issues, why then is the insanity defense so seldom used?

"The rarity of the NGI plea being entered is likely related to the complexity and cost associated with such a case. An NGI plea, in California, increases the cost and length of a criminal trial. The experts obtained by the defense attorney as well as those appointed by the court must spend time with the defendant, evaluate past medical records, and give testimony potentially twice. Because of this, the attorney may not even have the time or ability to even get past medical records and analyze if a defendant is a good candidate for an NGI plea.

Furthermore, the type of defendant most likely to be arrested or found guilty of a violent offense is also unable to pay for private defense counsel or have access to mental health professionals before their arrest, so they are put into a vast trough of cases given to local public defenders without adequate access to mental health evaluations. The legal right to representation in a criminal case, made famous in Gideon v. Wainright, guarantees only that an attorney will be appointed to represent a person through the criminal process. There is no guarantee that a person with a mental disorder, which was manifesting at the time of the crime, will ever have a jury hear evidence about their mental condition."

For more details on this case, head to the San Diego Superior Court's website. Colbert is currently scheduled to take a psychiatric evaluation on December 15, with a hearing to determine if he is mentally competent to stand trial on January 6.