When state law insists on waiting until danger is “clear and present” before requiring medication, a lot of crimes happen. That’s what “clear and present danger” means, right? In some imaginary world, we can freeze the frame at the point just before harm and teleport police or doctors in to help. But in the real world, harm happens in the blink of an eye. It may be as trivial as trespassing or as weighty as homicide, but once the law has been broken, it’s no longer just a matter of psychiatric treatment. And once an unstable person enters jail, things may go downhill fast.

The Insanity Defense: will it mean anything?

For misdemeanors, legal “insanity” might be relevant. Many counties, including Allegheny, have a Mental Health Court where they try to steer such cases.

But if it’s a serious crime, if someone was injured or killed, the case will stay in regular criminal court, even if everyone knows that it was caused by severe psychosis. And then, just when you think the Insanity Defense would be most relevant, it isn’t. Lawyers tell you not to try, and certainly not to risk a jury trial. But why?

Let’s look at Pennsylvania’s two options: Not Guilty by Reason of Insanity, and Guilty But Mentally Ill.

JURY SUMMONS: YOU

You’ve heard evidence in my son’s case, the story told in “About My Family.” Now you’re presented with two options: NGRI will send him to hospital treatment until he’s no longer a risk, while GBMI will send him to a conventional prison term. The law expects you to decide which of these categories he fits:

Not Guilty by Reason of Insanity

Use this category when “[A]t the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.”

Guilty But Mentally Ill

“Mentally Ill” here means, “One who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”

It’s difficult, isn’t it?

In fact I have to admit it’s a trick question, because they say the same thing. But I didn’t make up the trick, the Pennsylvania Legislature did. Those are the actual legal definitions, quoted directly from the law. They are essentially identical.

How did this happen?

1982: Everyone was shocked when President Reagan’s shooter, John Hinckley, was deemed “Not Guilty by Reason of Insanity.” He was sent to a hospital. Many people were outraged, viewing it as an escape from punishment. People worried that Hinckley might have pretended to be ill, and they certainly feared that others charged with felonies might do the same. States rushed to create ways to make it harder to avoid prison. Many states created a category called “Guilty But Mentally Ill,” which would place someone like Hinckley in prison even if he had a genuine mental disease, and that’s what Pennsylvania tried to do. But….

Only Pennsylvania managed to create its GBMI statute by using words that were intended to describe “Not Guilty by Reason of Insanity”!

The American Law Institute wrote a model criminal law in 1962. It wasn’t the law of any state or country, but it was available for use if a state was looking for ideas. Its “Insanity Defense” wording was adopted by Pennsylvania to describe GBMI status.

Pennsylvania already had an Insanity Defense. It’s the wording you saw above, for NGRI. The state simply added GBMI with a second description of legal innocence, but this one indicates guilt.

Since 1982, there have been very few NGRI rulings. Juries can’t tell the difference, so defense counsel strongly recommends not going to trial. The risk of a life sentence is too great. That means a plea bargain, and my son Levi pled guilty to Third Degree Murder. He was sentenced to 20 years.

I fought that outcome, without success. I still believe it’s deeply unjust. It took me four years even to learn why it had to be this way; it seemed that the lawyers didn’t really know, and there weren’t any articles written to explain it. Finally, near the end of my son’s case, I read the explanation. It was in an Amicus brief filed with an appeal — in other words, the author of the paper was agreeing with the convicted man who wanted his case to be reconsidered. The author was a public defender who pointed out that no jury can tell the difference between Pennsylvania’s two legal options. I don’t think judges can tell the difference, either.

Since nobody is sure how to use the legal definitions, nearly everyone pleads Guilty with a plea bargain stipulating GBMI, which at least guarantees that they’ll be placed in a prison unit with support for treatment.

To me, as the mother of an inmate, it feels like double jeopardy. First, Levi was not allowed to have involuntary treatment because he wasn’t dangerous enough. Then, he was too dangerous and so the “insanity” defense didn’t count. Worse, the judge said that his sentencing had to be long (10-20 years) when a much shorter sentence might have served, simply because the county had no way to make him stay on medication. So not only did lack of AOT allow him to slide into danger, lack of AOT also sent him to prison for a longer time.

I don’t think the state will change the way they handle the Insanity Defense. That means we can only change the early steps…before a crime is committed, before harm happens, before tragedy. Look at disability, not danger. Choose treatment before tragedy.