Fog Times Fog

By the measure of most lives, the violent acts of Patty Hearst, Squeaky Fromme and Sara Jane Moore appear deranged. But were the three women legally insane? Are they sane now? Such questions are already central to the criminal proceedings against each of them, for, following long tradition, the invocation of a psychiatric defense is almost mandatory. "When you find a guy with a smoking gun standing over a dead body, you immediately call the psychiatrist," says Selwyn Rose, himself a psychiatrist and law professor at Loyola University of Los Angeles. That tradition is now undergoing considerable criticism. Most experts consider the particular area of law confused--not to say crazy. University of Chicago Law Professor Franklin Zimring observes: "If your psychiatric labels aren't clear and the legal standards that you use to feed them into decisions are foggy, fog times fog equals fog squared."

Mentally Able. The problem is simple enough. "Jurors just want to know whether the defendant could have helped himself," says Harvard Law Professor James Vorenberg. "But psychiatrists aren't very good at answering that." Dr. Karl Menninger agrees: " 'Insane' is an expression we psychiatrists don't use until we get to court. Insanity is a question of public opinion."

Still, when psychiatric judgment is required, experts try to supply what the court needs to know. Generally they form their opinions by simply talking with the defendant. "What you would see," explains Dr. James Richmond, who has examined Squeaky Fromme, "is a doctor having a conversation with a patient." If the concern is whether the defendant is mentally able to stand trial and defend himself, the psychiatrist concentrates on such matters as the defendant's comprehension of the charges, his ability to follow what his attorney says, and his reaction to authority figures (some defendants go blank when faced with a judge). It is harder--and takes longer--to form an opinion about a defendant's sanity at the time of the crime. For that, psychiatrists will focus on what the defendant remembers about the crime, what his emotions were at the time, how he felt before and afterward.

The trouble for most psychiatrists comes when they have to translate what they have learned into testimony that meets legal requirements. The M'Naghten rule, first announced in 1843 and still part of California's standard, asks whether the defendant knew "the nature and quality of his act" and was able to distinguish right from wrong. In 1954 the Durham rule, formulated by the D.C. Circuit Court of Appeals, greatly broadened the psychiatric defense by declaring that a person is not criminally responsible "if his unlawful act was the product of mental disease or mental defect." In a refinement of both rules, the Model Penal Code of 1962--now essentially the rule in 20 states and most federal courts--bases the test on a defendant's lack of "substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."

Though these standards may seem liberal, jurors tend to be tough about applying them. Consequently, "the defense of insanity is relatively difficult to present effectively," states Boston Criminal Lawyer Gerald Alch. Moreover, most defendants found not guilty by reason of insanity are committed to hospitals for the criminally insane, where incarceration may be longer and under worse conditions than in a regular prison. Many such defendants end as what Psychiatrist Thomas Szasz calls "double victims" of "psychiatric justice"--stamped both crazy and criminal. Such realities explain why, contrary to popular impressions, an insanity defense is rarely chosen except in homicides, where the criminal punishment is often at least as harsh as the consequences of being found insane. Even then, only about 2% of such pleas are accepted by juries.

Despite the problems, lawyers for Patty Hearst have to consider an insanity defense, and four court-appointed experts have been examining the 21-year-old to determine if she can stand trial. Sara Jane Moore was also undergoing a competency examination last week, though she said at the time of her arrest: "I'm no Squeaky Fromme." Despite that implied accusation, Squeaky herself has by now passed her own competency test and won the right to be her own attorney (with a public defender as co-counsel). She is apparently not planning to present an insanity defense. That may be an entirely rational decision, even though experts say that it is often hardest to get the truly insane to enter an insanity plea.

Whatever the outcome of the three cases, they are not likely to still the maelstrom that swirls around the problem of sorting the mad from the simply bad. David L. Bazelon, the judge who designed the Durham rule, now wonders whether psychiatric testimony can ever be sufficiently helpful in a trial--"no matter what our rules of evidence are." Harvard Law Professor Alan Dershowitz argues that while current definitions of legal insanity are inadequate, "every attempt at change has backfired." The upshot of the criticism has been increasing support for doing away with the insanity defense altogether. Instead, a trial would focus on whether the defendant did what he is accused of doing, and whether he intended to do it. If convicted, the defendant could then introduce psychiatric evidence at a hearing to determine whether the judge should impose a prison sentence or mental treatment. No such law has been passed in any state, but a federal version has been proposed. Unfortunately, it is part of a general overhaul of the federal criminal code, and complications with other parts of the proposal make it likely that the bill will die.

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