At the End of its Term, The Supreme Court Denies Mentally Ill Defendants' Right to a Fair Trial

By SHERRY F. COLB

Wednesday, Jul. 12, 2006

Two weeks ago, the U.S. Supreme Court, in Clark v. Arizona, upheld Arizona's insanity defense and affirmed a trial judge's refusal to consider expert testimony about the defendant's mental illness to rebut prosecution evidence of intent. The decision moved in the direction of depriving mentally ill people of an equal right to defend themselves against criminal charges.

In the case before the Court, Eric Michael Clark had been convicted of killing Jeffrey Moritz, a police officer. At his trial, Clark did not dispute that he had shot Moritz to death but claimed that he did not know - as the Arizona statute required - that Moritz was a police officer. He also claimed insanity, which Arizona defines as the inability to understand that one's actions are wrong.

In the service of these two defenses, Clark offered psychiatric expert testimony and the observations of lay witnesses. The trial judge in the case played the roles of both judge and jury, because Clark had waived his right to a jury trial. The judge decided that he would consider the psychiatric testimony only on the question of insanity, but not on the second question of whether Clark had the knowledge or intent to kill a police officer required for him to be guilty of first-degree murder in Arizona.

The Modern Insanity Defense

In Clark, the Supreme Court considered for the first time in decades the constitutionality of the sorts of narrowed insanity defense laws that were generally passed in response to John Hinckley's 1982 acquittal in the shooting of President Reagan, an acquittal that many condemned as unwarranted.

The federal government and many states had previously codified insanity defenses with both cognitive (thinking-related) and volitional (control-related) components. Under these statutes, a mentally ill defendant could be acquitted if his illness was severe enough to prevent him from being able either to appreciate the nature or wrongfulness of his actions or to control those actions.

After Hinckley's acquittal, large numbers of states and the federal government reformed their respective insanity defense laws to eliminate the volitional component and excuse only those people unable to understand the nature and wrongfulness of their actions.

Apparently in response to a different insanity verdict, Arizona in 1993 ultimately narrowed its own defense to include only those defendants who could prove that their illness prevented them from knowing that their actions were wrong.

In Clark, the Supreme Court rejected the defendant's claim that the Arizona insanity defense was too narrow to satisfy the constitutional requirements of Due Process. This result should not have surprised anyone, because the Court has historically shown reluctance to interfere with legislatures' freedom both to define crimes and to craft their own defenses to those crimes.

A second part of the ruling, however, is more surprising and raises some serious constitutional difficulties.

The Mens Rea Alternative

As long as there has been a movement to abolish the modern insanity defense, people have touted the so-called "mens rea alternative" to that defense. Under this alternative, mental illness might not provide a predicate for a specific defense to the commission of a crime. A defendant could, however, still introduce evidence of his mental illness to rebut the prosecutor's proof of "mens rea" - the culpable state of mind required for a defendant to be guilty of a crime.

To provide an example, imagine that John Doe smears dog feces on his neighbor's BMW. As it turns out, in Doe's state, smearing a foul substance on another person's property constitutes the crime of "grand vandalism" if the defendant either intended or knew that he would be causing discomfort to the owner of that property.

In theory, the government must prove intent or knowledge in making its affirmative case against a defendant. As a practical matter, however, the action would "speak for itself" - supporting the inference that the person who carried it out knew and almost certainly intended that his acts would cause discomfort to his victims. A jury would accordingly be justified in convicting John Doe of grand vandalism without any evidence on the specific question of intent, beyond the bare facts themselves. It is logical to infer that a person intends or at least knows the natural consequences of his voluntary actions.

If John Doe suffers from a severe mental illness, however, he may not be capable of truly understanding, much less intending, the emotional consequences of his vandalism. He might not qualify for the modern insanity defense, because he knows that it is wrong to place dog feces on other people's property. He may still, however, lack the capacity to appreciate that people whose property is treated in this fashion will experience distress.

In John Doe's case, the prosecution's job of proving that Doe intended or knew that his actions would cause discomfort should therefore be more challenging than it would be in the garden-variety "grand vandalism" prosecution. The mens rea alternative holds that rather than resorting to an insanity defense that rests on the inability to understand that one's conduct is wrong, a defendant may rely on mental illness for exoneration only when he can demonstrate that his illness prevented him from having the state of mind necessary to be guilty of the crime with which he was charged.

Supporters of the insanity defense have resisted the mens rea alternative, believing that it provides an unduly limited role for legitimate evidence of mental impairment. But even opponents have generally assumed - as have those who promoted the "mens rea alternative" - that regardless of what happened to insanity as a defense, the mens rea alternative would remain an available option, as long as a culpable state of mind constituted an element of a crime.

The Arizona Judgment: Provide No Mens Rea Alternative

The trial judge in Eric Clark's case - and now the U.S. Supreme Court, by affirming his judgment and Clark's conviction - have now called into question that previous assumption about the mens rea alternative.

Recall the Arizona statute's very specific mens rea element: It required Clark to have known that the person he killed was a police officer. Clark wanted to argue that his mental illness, paranoid schizophrenia, was so severe that it prevented him from knowing that his victim was a policeman. The trial court, however, prevented Clark from making this argument.

The judge held that, under Arizona law, the only use the defendant could make of expert testimony regarding his mental illness was to try to prove that he was unable to understand that his acts were wrong. If the judge did not - and, in fact, he did not - find the evidence sufficiently persuasive to prove insanity, however, then he would not and could not consider the expert testimony about mental illness on the question of whether Clark intended to kill a police officer - even though this was a question on which the government bore the burden of persuasion beyond a reasonable doubt.

More importantly, the Supreme Court - wrongly, I believe - approved of the trial judge's decision.

The Consequences of the Supreme Court's Ruling

The Court's ruling has important implications for the efforts of mentally ill defendants to receive fair treatment in the criminal courts. Where a statute specifies that a person must intend a specific outcome, the Clark decision, in effect, permits the judge to ask the jury (or himself) the following question: Given the facts, would a person with no mental illness have intended the outcome that occurred? If the answer is yes, then - as long as the mental illness is not severe enough to qualify the defendant for the insanity defense - the judge can prevent the defendant from asking the jury (or the judge) to examine evidence of the defendant's mental illness insofar as it rebuts an otherwise logical inference of intent.

A 1979 Supreme Court decision, Sandstrom v. Montana, takes a very different approach to a similar set of facts. There, a man suffering from mental illness was charged with the crime of deliberate homicide. Like Clark, the defendant in Sandstrom conceded that he had killed the victim in the case. His defense was that his actions were not "deliberate," within the meaning of the law, because his mental impairment deprived him of the capacity to have the mens rea necessary to the crime. The judge there instructed the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts."

On appeal, the Supreme Court held that this instruction violated the Due Process Clause of the Fourteenth Amendment. The Court reasoned that the jury could have understood the instruction to demand one of two things, either of which would have been unconstitutional:

First, the jury might have felt compelled to conclude that the defendant's actions (which ordinarily would cause a victim's death) were "deliberate," for purposes of the statute, no matter what the evidence of mental impairment actually proved.

Second, the jury might have felt compelled to find the defendant's actions deliberate, unless the defendant affirmatively proved that they were not deliberate - thereby impermissibly shifting the burden of proof on this element of the crime to the defendant.

Either way, said the Court, the instructions would violate the right of a defendant to force the prosecution to prove every statutory element of an offense beyond a reasonable doubt.

The Court's decision in Clark challenges the continuing vitality of this principle. Under Clark, if a person is not insane - a condition that is so extreme as generally to preclude the coherence necessary to carry out the very criminal conduct for which it theoretically provides an excuse - then a state may allow him to be convicted despite the availability of evidence proving that because of his mental illness, he could not or did not have the mens rea required for guilt.

Indeed, the Court's approval in Clark of the judge's refusal to consider expert psychiatric testimony at all on the question of mens rea indicates that a state may positively compel conviction from a jury (or judge) even in the face of persuasive evidence proving the lack of the requisite mens rea.

The Decision's Deep Flaw: Denying Equality to the Mentally Ill

This outcome is troubling for a number of reasons. First, it calls into question the basic Due Process principle that the government may not punish a person for a crime unless it affirmatively demonstrates that the person is guilty, by proving each and every element of that crime beyond any reasonable doubt.

Second, and perhaps more importantly, this decision allows the law and the criminal justice system to close their respective eyes to the mental illness that afflicts a defendant and that renders dubious many ordinarily sound assumptions about human behavior.

Clark thus singles out the mentally ill for treatment that is worse than what the rest of the population receives, and it does so in an area in which the litigants have the most to lose - their liberty or their very lives.

As Justice Kennedy says in a dissent joined by Justices Stevens and Ginsburg, "[t]here is no rational basis . . . for criminally punishing a person who commits a killing without knowledge or intent only if that person has a mental illness."

Up until now, people who suffered from mental illness but committed no crime were subject only to "civil" confinement for dangerousness. Now, because of Clark, such individuals may effectively be subject to "criminal" confinement as well.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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