Post-Hinckley Insanity Reform in Oregon
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Post-Hinckley Insanity Reform in
Oregon
Scott M. Reichlin, MD; Joseph D. Bloom, MD; and Mary H. Williams MS
The 1983 Oregon legislature responded to public pressure to narrow the appli-
cation of the insanity defense by eliminating personality disordered individuals from
consideration for an insanity verdict. This article examined the effects of the
statutory change, and found no significant change in the frequency of insanity
acquittals of personality disordered subjects between the three pre-reform years
(n = 21) and the three post-reform years (n = 14). We also reviewed how the
Psychiatric Security Review Board handled these patients once committed to their
jurisdiction. We constructed a matched comparison group of psychotic acquittees
and found that in the pre-reform years the personality disordered subjects spent
less time in the system and less time in the hospital than the psychotic patients.
However, in the post-reform years their time in the system and time in the hospital
was the same as the psychotic controls. There were fewer decisions to discharge
personality disordered patients from the system after the reform, although this
difference may be due to factors other than the statutory reform itself. The conclu-
sion is that narrowing the insanity defense is a worthy goal which may be difficult
to achieve.
Insanity laws and systems for manag- After the Hinckley decision the Insan-
ing insanity acquittees. frequently sub- ity Defense Work Group of the Ameri-
ject to debate and revision, are particu- can Psychiatric Association (APA) pub-
larly vulnerable to highly publicized and lished a statement on the insanity de-
controversial trials.'-"his was recently fense which offered several potential
demonstrated in the acquittal by reason reforms for c~nsideration.~ The APA
of insanity of John Hinckley, Jr., after statement discussed the problem of ap-
his attack upon President Reagan. Ar- plying the insanity test to individuals
guments were made in the press, in state with personality disorders and suggested
legislatures, and in Congress to reform narrowing the insanity defense to those
insanity laws so that fewer persons with "severely abnormal mental condi-
would be acquitted. There was interest tions," roughly synonymous with psy-
in making this defense less accessible chotic mental illness. The APA also rec-
and in applying it more selectively. ommended elimination of the volitional
arm of the American Law Institute (ALI)
From the Department of Psychiatry, The Oregon standard test for insanity because it was
Health Sciences University, Portland. and Oregon State
Hospital, Salem, Oregon. Address correspondence to felt to be beyond the capacity of psychi-
Scott M. Reichlin, M.D., Oregon State Hospital. 2600 atrists to apply this standard meaning-
Center Street N.E., Salem, Oregon 973 10. This work is
partially supported by NIMH grant # 5 ROI MH4222 I . fully. The volitional arm is that portion
Originally presented at the 19th Annual Meeting of the of the test by which a person may be
American Academy of Psychiatry and the Law, San
Francisco, California. October 1988. found insane if. due to mental diseaseReichlin et a/.
or defect, he lacks substantial capacity, were seen in all aspects of the system,
"to conform his conduct to the require- including changes in the definition of
ments of the law."' the test of insanity, whether the burden
Further debate concerning the voli- of proof falls to the state or the defend-
tional arm of the ALI test has been ant, the standard of proof (the degree of
advanced. Rachlin et presented an certainty required), trial procedures, re-
argument against its use. focusing upon lease and/or posttrial committment pro-
personality disorders and pathological cedures, and the nature of the insanity
gambling as controversial examples. verdict (as in creation of a guilty but
They believed that the elimination of mentally ill category).
the volitional arm would correct much Few data exist to assess the function-
of the abuse of the insanity system. ing of the insanity systems in most states.
Rogers3voiced an opposing argument in In 1978 Oregon created the Psychiatric
a position taken by the American Psy- Security Review Board (PSRB). a body
chological Association, arguing that the similar to a parole board with jurisdic-
validity and reliability of the volitional tion over insanity acquittees. Oregon re-
component were not properly studied,
searchers have made use of the centrali-
making elimination premature. His pre-
zation of data by studying various as-
liminary studies using a standard tool
pects of the PSRB and characteristics of
for assessing volitional capacity showed
insanity acquittees.*-I' Most of this data
approximately equal reliability between
is related to the participants and the
cognition and volition. Rogers' criteria
system after the trial. Less attention has
for assessment of volition fell into five
been focused in Oregon and elsewhere
areas: ability to make choices, capacity
on legal and psychiatric events which
for delay, disregard for apprehension,
forseeability and avoidability, and the take place before trial. An exception is
relationship to a mental disorder. the 1981 study of the Missouri system
Consider the complex network of po- by Petrila et a/.," who found problems
litical. social. legal. and scientific forces in the pretrial exchange of information
operating on the various insanity sys- between the legal and psychiatric do-
tems in the 50 states and the federal mains. Court orders requesting mental
system. Sorting and organizing some of health input varied greatly in their spec-
this information, Callahan et aL7 cata- ificity and relevance to individual cases.
logued statutory changes before and Courts usually relied on "form" orders.
after the Hinckley trial. More states re- The mental health response was gener-
formed their laws in the years after ally to ignore the court orders and to
Hinckley than before. Although more base the report upon perceived statutory
than one factor was postulated, it ap- requirements. When specific psychiatric
peared likely that the public outcry to input outside these statutory require-
the Hinckley verdict was instrumental ments was required, it frequently was
in motivating these changes. Reforms not provided.
406 Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990Post-Hinckley Insanity Reform in Oregon
The Oregon Experience abandoned the term "not guilty by rea-
As occurred in many state legislatures son of insanity" for "not responsible . . .
after the Hinckley verdict. the 1983 Or- as a result of mental disease or defect,"
egon Legislature considered several bills the term was changed again, to "guilty
designed to make the law responsive to except for This new word-
public and professional opinion that ing was felt to describe more accurately
problems existed in the way offenders the legal thinking and philosophy which
were handled in the insanity system.13 gives rise to the insanity defense. that
Legislative debate highlighted these spe- "except for" the additional mental status
cific concerns: ( I ) an insanity trial was testimony about appreciation of crimi-
perceived as no more than a "battle of nality or ability to conform conduct, the
the experts," (2) the number of insanity individual would be found guilty. Fur-
acquittees in Oregon was too large and thermore, to label the individual as "not
continuing to grow, (3) criminals were responsible" was considered counter-
"beating the rap" by avoiding punish- therapeutic in a clinical setting where
ment for crimes, (4) the wording "sub- taking responsibility for one's life is
stantial capacity" in the ALI test consti- often a paramount objective. The result
tuted a legal rather than a medical or continues to be a traditional insanity
scientific determination, (5) the voli- acquittal; it is clearly distinguished from
tional arm of the test lacked professional the "guilty but mentally ill" verdict de-
agreement in its application to potential veloped in other states.
acquittees, and (6) the insanity system Second. the exclusionary section of
was very costly. In addition. forensic the insanity test was expanded as follows
psychiatrists from the Oregon State Hos- (new wording emphasized): ". . . the
pital testified to the legislature about the terms 'mental disease or defect' do not
difficulties treating personality disor- include an abnormality manifested only
dered individuals assigned to the PSRB by repeated criminal or otherwise anti-
system. social conduct, nor do f / ~ j inc111de
,
Three separate reform bills were intro- j . i f111ing .solel.v a pcwon-
a l ~ n o m a l i f consf
duced, all of which would have changed ulity disorder. "I4 This law became effec-
the test for insanity so substantially as tive on January 1. 1984.
to make acquittals all but nonexistent. This article examines the effect of this
Implicitly and parenthetically under second legislative change by measuring
scrutiny was the degree of confidence in whether personality disordered of-
the PSRB itself. Most features of the ALI fenders were eliminated from entering
test. including the "substantial capacity" the insanity system. Also. since person-
language. were left intact. In fact. from ality disordered insanity acquittees were
a long list of original concerns the legis- specifically described to the Legislature
lature amended the insanity statute in as presenting significant treatment prob-
only two areas. lems, we describe how these individuals.
First, having previously (in 1 978) once committed to the PSRB. have fared
Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990 407Reichlin et a/.
in the system prior to and after the 1983 Results
legislative change. Among the total number of persons
assigned to the PSRB for whom there
Methods was a diagnosis, the personality disor-
All insanity acquittees placed under dered subjects comprised 10 percent (2 1
the jurisdiction of the PSRB from 1978 of 187) in the three pre-reform years and
to 1986 have been entered into a re- 8 percent (14 of 165) in the three post-
search data base maintained by the De- reform years. a difference which is not
partment of Psychiatry at the Oregon statistically significant ( x 2= .36, df = 1.
Health Sciences University and updated p = .55). No significant changes were
annually. From this larger data base a found in the other parameters studied
sample was taken which consists of per- (Table 1): numbers of men and women.
sons: age, and crime severity based on a pre-
1. committed to the jurisdiction of the viously constructed scale that catego-
PSRB in calendar years 198 1 to 1986 rizes crime severity from 10 (for murder)
(three "pre-reform" years and three to 830 (for false fire alarm).16
Figures 1 and 2 present the results on
"post-reform" years),
how the subjects and their matched con-
2. committed to Oregon State Hospi-
trols were managed under PSRB juris-
tal (OSH) for at least part of their juris-
diction. Time in the hospital may be
dictional time. and
shortened by granting conditional re-
3. diagnosed by OSH physicians as
lease to community placement, or by
suffering from a personality disorder as
the primary diagnosis. Table 1
This resulted in a sample of 35 patients, Data on Personality Disordered Patients
comprised of 2 1 pre-reform patients and 1981-1 983 1984-1 986
(Pre-reform) (Post-reform)
14 post-reform patients. To form a com-
Number 21 14
parison group, the personality disor- Men 20 11 .
dered subjects were matched with a Women 1 3
Mean age 26 31
group of subjects with diagnoses of psy- Mean Severity Score 313 340
choses. The comparison group was
matched on the basis of sex, age, severity
psychotic
of the criminal act that resulted in an
insanity acquittal, and date of entry into
PSRB jurisdiction. The study and con-
trol groups were then compared with
5.6 disorders
regard to total time spent under PSRB
supervision, time spent in hospital, time
spent on monitored conditional release,
and discharge parameters in the three Pre-reform Post-reform
years pre- and post-reform. Figure 1. Mean time in hospital.
408 Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990Post-Hinckley Insanity Reform in Oregon
psychotic data on how often the PSRB used its
I - . controls
discretionary power. In the three pre-
reform years. there were a significantly
Arsenal i
disorders
ty greater number of discretionary dis-
charges for personality disordered pa-
tients when compared with the psychotic
control group. In the post-reform years
the pattern of outcomes for personality
Pre-ref o m Post-reform disordered subjects and psychotic con-
Figure 2. Mean time under PSRB.
trols was more similar due in part to the
small numbers, but also to a sharply
exercising discretion to discharge the in- reduced use of discretionary discharge
dividual. Time under jurisdiction may for personality disordered patients.
be shortened only by discretionary dis- Discussion
charge. (The Board employs "discre-
The legislative reform discussed here
tion" by finding the individual no longer
appears not to have succeeded in its
mentally ill or no longer dangerous,
attempt to narrow the insanity defense
either of which compels a discharge from
by excluding individuals with only per-
jurisdiction.) In the pre-reform years the
sonality disorder diagnoses. In fact, their
study subjects spent less time in the hos-
pital and less time under the Board's relative numbers for entry into the
jurisdiction than the control group. In PSRB system were not even reduced to
the post-reform years this difference dis- a statistically significant degree. This
appeared. Using analysis of variance for conclusion is subject to several limita-
the data on time in the hospital (df = 1 , tions. First, we are unable to assess the
F = 2.69, p = .11) and time under effectiveness of the legislative change by
jurisdiction (df = 1 , F = 1.55, p = 0.22), measuring the true negative rate. the
the differences are short of statistical proportion of ultimate convictions
significance, but indicate a trend in the among persons raising the insanity de-
operation of the PSRB that is consistent fense. Currently we have no practical,
with other findings discussed below. efficient way to extract data on these
When an insanity verdict is made, the individuals from the judicial system.
criminal court judge determines the Second, the diagnoses used in this
maximum possible length of PSRB ju- study may not have been the same as
risdiction, based on the maximum sen- those considered by the trial court. Our
tence allowed for the crimes charged. data look at the clinical diagnosis made
When this "insanity sentence" elapses, a after the insanity acquittal. In research
mandatory discharge from PSRB juris- on the insanity defense system, there are
diction occurs. Death is another result two potential points of diagnosis, the
that terminates jurisdiction outside of pretrial diagnosis and the posttrial (state
discretionary authority. Table 2 gives hospital) diagnosis. We do not yet know
Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990 409Reichlin et a/.
Table 2
Management of Insanity Acquittees by PSRB
Pre-Reform Years (1981 -1 983)
Retained Discretionary Discharges Elapsed or Died
n O/O n YO n OO
/
Personality disorders 8 38 12 57 1 5
Psychotic controls 12 57 4 19 5 24
N = 42; x2 = 7.47; df = 2; p = .02.
Post-Reform Years (1984-1 986)
Retained Discretionary Discharges Elapsed or Died
n 70 n O/O n O/O
Personality disorders 8 57 4 29 2 14
Psychotic controls 11 79 1 7 2 14
the level of congruence of these diag- to compare pretrial and posttrial diag-
noses. noses in the prereform and postreform
Why has there been no apparent effect period and more adequately speak to the
from the legislative reform? Explana- effectiveness of the 1983 legislative
tions may be based on either an assump- change.
tion that the diagnoses made before and The second part of our present study
after the trial are congruent, or that they focuses on how personality disordered
are not. The pretrial and state hospital patients were handled by the PSRB
diagnoses may both be personality dis- when compared with a matched group
order (theoretically precluding an insan- of psychotic insanity acquittees. In the
ity verdict). but the courts may be apply- pre-reform period they were discharged
ing broad individual standards to de- significantly more than the psychotic
fendants they perceive as insane. The control patients, whereas in the post-
judges may be relying less upon expert reform period this difference disappears
testimony and diagnosis, handing down and personality disordered subjects
verdicts based upon their own subjective spent more time under the Board and
and objective perceptions. Alternatively, more time in the hospital. We believe
the court may be given expert testimony that the two events are unrelated to the
that an Axis I mental illness is present statutory change per se but reflect factors
in an individual who is subsequently that led to this statutory change. In a
diagnosed at the state hospital as suffer- recent studyI7 of trends in the entire
ing solely from a personality disorder. PSRB population, it was demonstrated
To study this further, we have begun an that substantial increases in the hospital
investigation of the pretrial mental census have been due in large measure
health input in these controversial cases. to a lowered rate of discretionary dis-
Our follow-up investigation will allow us charges (of patients released from juris-
410 Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990Post-Hinckley Insanity Reform in Oregon
diction as either no longer mentally ill supervision continues on an outpatient
or no longer dangerous). We postulate basis, and generally the following are
that this phenomenon may be due to required of the patient: a state of remis-
one or more of several factors, such as sion from mental symptoms, an appre-
individual changes in the personnel ciation for the mental illness, active par-
comprising the PSRB, a generally con- ticipation in the management of the
servative trend in the country that leads mental illness, cooperation with social
to greater restrictiveness in releasing structure and standards, compliance
mentally ill offenders, the specific social with therapies (particularly medica-
climate engendered by the Hinckley ver- tions), and ability to live in a group
dict, reduced community placement re- home or adult foster care home. This set
sources available to the insanity acquit- of guidelines for release is more readily
tee, and/or newly surfaced fears of civil applicable to patients with psychotic ill-
liability with regard to opening the doors nesses than to those with personality
for this category of persons. disorders.18 Unable to conform to the
Regardless of the reason, this study guidelines for conditional release, these
demonstrates that personality disor- individuals spend more potentially un-
dered insanity acquittees who in the pre- productive time confined in the hospital.
reform period were, in a sense, weeded The retention of these patients in the
out of the system, were in the post- hospital therefore begins to resemble
reform period kept significantly longer preventive detention. decried recently
in the system. This is exactly the oppo- by Applebaum.19 They also comprise the
site outcome that the state hospital psy- group of individuals recommended for
chiatrists charged with the care of these transfer to corrections by the APA In-
patients desired when they proposed the sanity Defense Work G r ~ u pa. position
~
legislative reforms. which has proven exceedingly difficult
In our opinion personality disordered to implement.
patients were rightly considered a suita- Legislative changes are often in reac-
ble target for legislative reform. Clini- tion to a specific case or situation. Al-
cians treating forensic inpatients often though they may apply well to the orig-
speak anecdotally about their inappro- inal case. there can be consequences by
priateness of admission, the difficulty which the law either does more than
treating them, and the danger they often expected. or less. From the data avail-
pose to the treatment environment of able the attempt to keep the personality
other patients. disordered individuals out of the insan-
The personality disordered acquittee ity system by eliminating them at the
also clogs the system. Often considered front end of the process does not yet
too dangerous for unconditional dis- appear to have had the desired goal in
charge, they have characteristics that do Oregon. Discharging them once they
not favor conditional release. During the have been assigned to PSRB jurisdiction,
term of a conditional release in Oregon. by finding that they are no longer men-
Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990 411Reichlin et a/.
tally ill, is a method that was common Oregon's Psychiatric Security Review Board.
Behav Sci Law 3:69-84, 1985
in Oregon in the pre-reform period but 10. Bloom JD, Williams MH, Rogers JL, Barbur
is no longer widely applied. Appropriate P: Evaluation and Treatment of Insanity Ac-
quittees in the Community. Bull Am Acad
and fair narrowing of the insanity de- Psychiatry Law 14:23 1-44, 1986
fense is a worthy goal not easily realized. 1 1. Rogers JL, Bloom JD: Characteristics of per-
sons committed to Oregon's Psychiatric Se-
curity Review Board. Bull Am Acad Psychia-
try Law 10: 155-64. 1982
References 12. Petrila J, Selle J,,Rouse PC. Evans C. Moore
1. Bloom JD, Rogers JL: The legal basis of D: The pretrial examination process in Mis-
forensic psychiatry: statutorily mandated souri: a descriptive study. Bull Am Acad
psychiatric diagnoses. A m J Psychiatry Psychiatry Law 9:60-85, 198 1
144:847-53, 1987 13. Reynolds SE: Battle of the experts revisited:
2. Steadman HJ, Momssey JP: The insanity 1983 Oregon legislation on the insanity de-
fense. Willamette L Rev 20:303- 17, 1984
defense: problems and prospects for studying
the impact of legal reforms. Ann Am Acad 14. O r Rev Stat pj 16 1.295 (2) ( 1987)
15. Rogers JL, Bloom JD, Manson SM: Oregon's
Pol SOCSci 484: 1 15-26. I986 Psychiatric Security Review Board: a com-
3. Rogers R: APA's position on the insanity prehensive system for managing insanity ac-
defense. Am Psychologist 42:840-8, 1987 quittees. Ann Am Acad Pol Soc Sci 484:86-
4. Insanity Defense Work Group: American 99, 1986
Psychiatric Association statement on the in- 16. Bloom JD, Rogers JR, Manson S: After Or-
sanity defense. Am J Psychiatry 140:68 1-8, egon's insanity defense: a comparison of con-
1983 ditional release and hospitalization. Int J Law
5. Model Penal Code, 4.0 1 S; ( 1 ) ( 1962) Psychiatry 5:39 1-402, 1982
6. Rachlin S, Halpern AL, Portnow SL: The 17. Williams MH, Bloom JD, McFarland B, Bi-
volitional rule, personality disorders and the gelow D, Carlson J: A nine-year review of
insanity defense. Psychiatric Ann 14: 139-47. insanity acquittees managed in a state foren-
1984 sic hospital: factors influencing census over-
7. Callahan L, Mayer C, Steadman HJ: Insanity load. Unpublished manuscript, 1988
defense reform in the United States-post- 18. Bloom JD, Bradford JM, Kofoed L: An over-
Hinckley. Ment Phys Disabil Law Reporter view of psychiatric treatment approaches to
1 1 :54-9, 1987 three offender groups. Hosp Community
8. Rogers JL, Bloom JD, Manson S: Oregon's Psychiatry 39: 15 1-8, 1988
innovative system for supervising offenders 19. Applebaum PS: The new preventive deten-
found not guilty by reason of insanity. Hosp tion: psychiatry's problematic responsibility
Community Psych 33: 1022-3, 1982 for the control of violence. Am J Psychiatry
9. Rogers JL, Bloom JD: The insanity sentence: 145:779-85, 1988
Bull Am Acad Psychiatry Law, Vol. 18, No. 4, 1990You can also read
