Our Crazy Laws on the Insanity Defense

The failure of Eddie Ray Routh's insanity defense calls into question the meaning of the term.

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When a Texas jury rejected an insanity defense and convicted Eddie Ray Routh in the murder of "American Sniper" Chris Kyle and Chad Littlefield, it raised a question: If this guy isn't crazy, who is?

Routh had a voluminous history of mental illness. After being discharged from the Marines in 2010, doctors hospitalized him because he thought a giant tapeworm was eating him. He had several more stints in psychiatric facilities and regularly took medications for psychosis.

A few weeks before the shootings, doctors concluded he was a danger to himself and others. After his final release from a Veterans Administration hospital in January 2013—over the objections of his mother—Routh got worse. He said his co-workers were planning to eat him and "the heater in the workroom was a large human rotisserie," as The Dallas Morning News reported.

Traveling to a gun range with Kyle and Littlefield, he behaved so strangely that Kyle texted Littlefield, who was sitting next to him: "This dude is straight-up nuts." Routh, who was in the back seat, said he grew angry during the drive because they tried to get him to eat something and "nobody would talk to me."

"It smelled like sweet cologne," a jail guard heard him say. "I was smelling love and hate." He also said, "I'm sure they've forgiven me." When he arrived at his sister's house in Kyle's truck after the murders, she testified, he "was talking about pigs sucking his soul."

But the jurors needed less than three hours to decide that for purposes of criminal law, Routh was as sane as Tom Hanks. Maybe they were persuaded by the steely logic of the prosecutor who said the defendant's subsequent visit to a Taco Bell confirmed his mental fitness.

"What does it take to go and order fast food?" asked Assistant District Attorney Jane Starnes. "So you've got to go through the right lane; you've got to place your order; you've got to interact with the clerk; you've got to give them the money, get your change, get your food and go. It's not something that somebody who's just out-of-their-mind delusional does."

Really? My suspicion is that even delusional people need food and recognize Taco Bell as a place they can get it. I would bet plenty of fast-food employees have encountered customers who are a few fries short of a Happy Meal.

Nor did prosecutors offer any compelling theories why Routh would commit what they called the "cold, calculated capital murder" of two new acquaintances who were going out of their way to help him. The only reasons he had to kill Kyle and Littlefield were loony ones.

But it didn't matter. Under Texas law, his attorneys had to prove that their client, "as a result of severe mental disease or defect, did not know that his conduct was wrong." That hurdle is almost insurmountable.

Mental Health America of Texas, an education and advocacy group, has said the requirement does not "allow a jury to consider the true effect of mental illness on an individual who suffers from psychosis, delusions or irrational beliefs" and is "unable to appreciate the moral wrongness of their action or conform their behavior to the law." Texas Tech law professor Brian Shannon has written that the Texas standard "is so narrow that it is virtually meaningless."

That's not a bug; it's a feature. The insanity defense has never sat well with many Americans, who have no use for the notion that anything can excuse serious criminal violence.

The idea that some people are not responsible for their crimes because their minds are defective offends our normal moral standards. It's easier to dismiss it than to acknowledge the complexity of the world. Some states have abolished the insanity defense altogether, and others hardly need to.

No one wants psychotic killers set free to follow their dangerous impulses. Under a more sensible set of laws, though, someone like Routh would not be sent to a Texas prison to rot for the rest of his life. He'd be confined to a mental institution where he could be thoroughly treated—and kept off the streets unless and until he is no longer a hazard to anyone.

Instead, we act as though such defendants are as capable as the rest of us of behaving rationally and responsibly. In this case, that is straight-up nuts.

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  1. “Routh had a voluminous history of mental illness. After being discharged from the Marines in 2010, doctors hospitalized him because he thought a giant tapeworm was eating him. He had several more stints in psychiatric facilities and regularly took medications for psychosis.
    A few weeks before the shootings, doctors concluded he was a danger to himself and others. After his final release from a Veterans Administration hospital in January 2013?over the objections of his mother?Routh got worse. He said his co-workers were planning to eat him and “the heater in the workroom was a large human rotisserie,””

    I’ll tell you what is fu*king nuts?everyone seems to see that he is metally ill but he still has access to firearms.

    1. I’ll tell you what is fu*king nuts?everyone seems to see that he is metally ill but he still has access to firearms.

      Without removing all firearms from the populace explain how you remove his access to firearms. After removing all firearms he still had access to a car, knife, bat, crowbar, hammer, and another couple thousand things you can kill someone with. I’ll tell you what is fucking nuts…..thinking the crazy are only able to kill others because they found a gun.

      1. “I’ll tell you what is fucking nuts…..thinking the crazy are only able to kill others because they found a gun.”

        Who said that?

  2. What’s with the trend of being gobsmacked at established aspects of the criminal law? Reason authors all start law school last week?

    1. When a Texas jury rejected an insanity defense and convicted Eddie Ray Routh in the murder of “American Sniper” Chris Kyle and Chad Littlefield, it raised a question: If this guy isn’t crazy, who is?

      The subject is timely. Not that it matters.

      1. So this guy killed the American Sniper guy? I didn’t know that. What fucking cave have I been living in?

        1. If this guy isn’t crazy, who is?

          Obviously EDG reppin’ LBC.

          *** dials 911 ***

  3. I understand the concerns about holding the insane and delusional criminally responsible for their actions. You cannot, however, have it both ways. You cannot on the one hand make it virtually impossible to involuntarily confine someone suffering from insanity and on the other hand say they are not criminally responsible for their actions. One is intimately linked to the other.

    The public has demanded stricter controls on the insanity defense as a direct response to the increased difficulty of involuntary commitment. If you are going to say that the state cannot act preemptively and commit an insane person before they commit a crime, I don’t see how you can then complain when the public demands that person be held responsible for their actions. Indeed, the whole point of making it hard to involuntarily commit someone is that suffering from mental illness does not automatically make you unable to act rationally such that the state can step in and act for you. Well, if the state can’t step in before you commit the crime, I don’t see how you then get to avoid criminal responsibility when you commit it.

    All things considered, I am okay with harder involuntary commitment and a corresponding higher bar for the insanity defense. The default position should always be that people are responsible for their actions.

    1. “A few weeks before the shootings, doctors concluded he was a danger to himself and others. After his final release from a Veterans Administration hospital in January 2013?over the objections of his mother?Routh got worse. He said his co-workers were planning to eat him and “the heater in the workroom was a large human rotisserie,” as The Dallas Morning News reported.”

      Doctors said he was “a danger to himself and others”; that is all it takes for involuntary confinement.

      He was involuntarily committed, but then they let him go.

      I don’t think the question is why he was committed. I think the question is why they let him go.

      I don’t suppose the Kyle family are the type to go around suing the Veterans Administration for releasing this guy, and I don’t think it’s very easy to sue the federal government. But I think that’s a big part of the problem, here.

      If a private hospital released someone who was still a danger to himself or others, and after he was released, he killed himself or someone else, the doctors who made that determination would be facing a huge lawsuit, and the private facility that released him would get the hell sued out of them, too.

      In fact, if the insane person in question killed a child, a mother, or a public hero like Chris Kyle, there would be tremendous pressure on the local prosecutor to bring criminal negligent homicide charges against the psychiatrist that released him.

      This guy was properly committed.

      He was improperly released.

      1. I can tell you why they let him go; even if you can get someone committed, it is very difficult to keep them. Once they stop being a danger, you have to let them go. I seriously doubt he was improperly released. More likely, the guy told his doctors what they wanted to hear and they could no longer classify him as a danger.

        The issue of “how hard is it to get released” is just a variation of the larger issue of what it takes to be involuntarily confined. Just because this guy did turn out to be a danger does not mean he was improperly released under the law.

        1. He didn’t stop being a danger.

          According to his mother, he seems to have been just as dangerous when he was released as he was when he went in.

          The most likely reason they let him go was budget constraints or incompetence on the part of the VA hospital.

          1. He didn’t stop being a danger.

            Says his mother. You don’t know what he told his doctors. He probably acted fine with them while telling his mother God knows what out of their presence.

            All you are telling me is they got it wrong. Well, sometimes that happens. That doesn’t necessarily mean they were negligent. Lets flip the case and say they kept him. Then we could have a Reason article about the wrongful imprisonment of a man in a VA hospital who seems perfectly normal but is being kept anyway on the word of his mother.

      2. If a private hospital released someone who was still a danger to himself or others, and after he was released, he killed himself or someone else, the doctors who made that determination would be facing a huge lawsuit, and the private facility that released him would get the hell sued out of them, too.

        In fact, if the insane person in question killed a child, a mother, or a public hero like Chris Kyle, there would be tremendous pressure on the local prosecutor to bring criminal negligent homicide charges against the psychiatrist that released him.

        Ken, that is fantasy. The private hospital would be held to the ordinary standard of care. Further, private hospitals can’t confine people any more than government ones can. The issue in any such law suit would be did the hospital meet the standard of care. And the standard of care is people who are not an immediate danger to themselves or others cannot be held. The fact that the guy became a danger would not be relevant. The only question would be did the hospital reasonably conclude he wasn’t a danger at the time of his release. And it is nearly impossible to imagine a hospital not winning such a case. It would literally have to be a case of someone saying in so many words, “I plan to leave here and murder Ken Shultz”. Anything short of that and the hospital likely would win.

        1. “Further, private hospitals can’t confine people any more than government ones can.”

          I didn’t say they could.

          I said they can be held accountable in both civil court and criminal court in a way that bureaucrats in the federal government can’t.

          “The only question would be did the hospital reasonably conclude he wasn’t a danger at the time of his release. And it is nearly impossible to imagine a hospital not winning such a case.”

          Doctors lose malpractice cases like this all the time. I don’t care if its someone with a heart condition dying during heart surgery. The information in the medical record would be all that’s needed to sue.

          A jury is going to look at the notes that were taken during the 72-hour hold, to see what behavior justified commitment in the first place, and then the jury is going to look for notes in the patient’s record to confirm that the behavior in question disappeared.

          Preponderance of the evidence.

          I don’t have any legal training, but if this were a private hospital, the victim is a war hero like Chris Kyle, and the jury is in Texas? I might be able to win that case myself.

          Against a mental health facility and a psychiatrist that released him?!

          I think you might have to try pretty hard to lose a case like that.

          1. Doctors lose malpractice cases like this all the time. I don’t care if its someone with a heart condition dying during heart surgery. The information in the medical record would be all that’s needed to sue.

            They lose medical cases involving objective things like heart surgery. This is totally a judgment call on the doctor’s part. It is virtually impossible to prove they made the wrong professional call short of something as obvious as “I want to get out so I can kill”.

            A jury is going to look at the notes that were taken during the 72-hour hold, to see what behavior justified commitment in the first place, and then the jury is going to look for notes in the patient’s record to confirm that the behavior in question disappeared.

            No. A jury is going to listen to an expert’s opinion on all of that. And no expert is going to say that the doctor acted negligently in one of these cases, because there is no textbook definition of “dangerous” the way there is of “cancer” or other medical conditions.

            1. “This is totally a judgment call on the doctor’s part. It is virtually impossible to prove they made the wrong professional call short of something as obvious as “I want to get out so I can kill”.

              Civil trials are a preponderance of the evidence–you don’t have to prove it beyond a reasonable doubt.

              And there’s a “Discharge Summary” for every patient stay.

              The reason for discharge in the “Discharge Summary” better match the reasons given for committing the patient in the first place, and the notes taken by hospital personnel about the patient (sometimes every hour of the patient’s stay) better suggest the conclusion of the Discharge Summary, too.

              …and if you looked at this killer’s Discharge Summary, I bet you’re going to find something out of kilter somewhere.

              Pretend you’re a psychiatrist, and go ahead and fill out the “rationale for discharge” section on this document:

              http://tinyurl.com/oza2lhq

              Then sign it, date it, apply it to the patient’s permanent, record–and know that no one is ever going to hold you responsible for what you wrote there?

              1. I know the standard Ken. And these cases are not clear. That is the whole point. You would have to prove more than just “he got it wrong”. You have to prove that he failed to follow the standard of care such that no competent doctor would have done the same. Differences of professional opinion do not constitute negligence. Saying “I would not have released him” is not the same as saying “releasing him was negligent”. The two issues are different. The first is a difference of opinion. The second is a definitive statement that no doctor could have concluded in these circumstances that releasing him was proper and thus doing so was negligent. That is a much harder thing to prove.

          2. Against a mental health facility and a psychiatrist that released him?!

            I think you might have to try pretty hard to lose a case like that.

            No I wouldn’t Ken. I am sorry but you don’t understand the law and the medicine here. You are just making up what you think it should be. It doesn’t work that way. Psychiatrists rarely lose malpractice cases. The only time they do is for things where there is an objective standard of care like misproscription of drugs. They never lose a case of professional judgement on things like “dangerous”.

            1. “I am sorry but you don’t understand the law and the medicine here. You are just making up what you think it should be.

              Actually, I all but ran a medical records department in a privately owned, lock down, psychiatric facility for years on the edge of South Central Los Angeles. We were one of the places where the cops used to bring their 5150s.

              One of my primary responsibilities was analyzing documents to make sure they conformed with all regulatory bodies–and to protect both the hospital and the psychiatrists from the legal ramifications of deficient medical records.

              If a record was missing a document, or a document was missing something legally required, or something about it was just plain wrong, the jury wasn’t going to take our word for it.

              I documented all the commitment proceedings, responded to all legal requests and subpoenas, and sometimes I’d have to testify as to hospital documentation procedures.

              I’m not making up anything.

              1. Then you have all people should no how subjective these decisions are Ken. Unless the doctor just doesn’t justify his release, it is very unlikely the doctor or the hospital is going to be held responsible.

                Understand again negligence is not difference of professional opinion. To be negligent the doctor has to have failed to meet the generally recognized standard of care. Often that is a very clear and objective standard. The standard of care is “if a person has this problem, they should get this treatment within this many hours and the doctor failed to give such in time”. Calling someone “dangerous” is not one of those instances. It is a judgement call by the doctor. To say that call is negligent, you would have to prove that no competent doctor would have made that call given the facts. And unless the doctor just didn’t give a justification or ignored something really obvious, you are not going to prove that. Maybe they did here, but I doubt it.

    2. This line of reason is not coherent and is rife with fallacy.

      The public has not demanded stricter controls as a response to the difficulty of involuntary commitment. The reason is because they think people are getting off easy with NGRI – or pleading “insanity” with too much frequency. Aggression toward the insanity defense – and the opposition to involuntary treatment are both born out of profound lack of comprehension of psychosis. The vast majority of the public, prosecutors, judges, academics, legislators, even many in the medical fields do not understand psychosis. In fact, the insanity defense is rarely used (when it should be) because defense attys have been bullied into not raising it. Mob rule that has fashioned unjust laws that are detached from the medical science of schizophrenia and other states of psychosis. Juries are convicting and punishing people for acts they could not control or for which they could not appreciate the nature of due to severely disordered states of waking consciousness (i.e. psychosis) or severe thought disorder.

      Moreover, defective operants such as “Insanity”, M’Naughtens Rule, competency and incompetency, and a host of other deranged elements that are derived from alienation from the medical science of diseases and disorders that give rise to what the law refers to as “Insanity”. Medical science is marching forward and public understanding of schizophrenia and psychosis in general is marching backward at a rapid pace.

  4. “kept off the streets unless and until he is no longer a hazard to anyone”

    Here’s part of the problem right there – when the white-coats proclaim a guy cured, he’s back on the streets. We just have to trust their judgment that the guy won’t start hearing the tapeworms tell him to kill someone else.

    The broader the scope of the insanity defense, too, the more power the government has. If someone’s not responsible for his actions, he might be subject to civil commitment proceedings, bypassing the criminal justice system.

    Asking if someone knows right from wrong is an excellent test of insanity, realizing that insanity if a legal not a medical concept. If someone genuinely believes that someone wants to steal his bodily fluids, he still, if he knows right from wrong, has the ability to realize that pre-emptively killing his putative enemy is wrong. So if he kills the victim anyway, then from the legal standpoint, that should be considered sanity.

    1. That is my point above. I don’t see how you can have a high bar for involuntary commitment and also have a low bar for the insanity defense. Not only is it logically inconsistent, it is playing heads I win tails you lose with the public. Under such a system, the public is told “suffering from mental illness doesn’t not render people so dangerous they cannot help but be a danger to the public” and at the same time told the opposite when the person actually harms someone. The public will never stand for such a system nor should they.

      1. There isn’t a high bar of commitment.

        Generally, you can hold people for three days under observation without making a determination as to whether they’re a danger to themselves or others.

        If you still want to hold them after that point, a representative of the court–a representative of a judge with special training in mental health issues–comes in and asks for evidence that the person in question is a danger to himself or others.

        It’s basically a psychiatrist’s determination, based on the nursing notes and observations of various hospital personnel. The patient is given an opportunity to address the representative of the court, as well.

        The representative of the court makes a recommendation to the judge, and the judge pretty much always follows the recommendation of his or her representative.

        There are areas you would think would be ripe for abuse. Hospitals have a financial incentive to commit people with excellent insurance, and they have a disincentive to commit people with no insurance or Medicaid.

        I don’t understand why there would be a problem with that at a VA hospital.

        My point is that there is no need to reinvent the wheel for the entire mental health system simply becasue some unaccountable bureaucrat made an incompetent decision.

        As long as bureaucrats remain unaccountable in the federal government, we will continue to suffer from their incompetent decisions–and denying crazy people their constitutional rights isn’t going to change that.

        1. My point is that there is no need to reinvent the wheel for the entire mental health system simply becasue some unaccountable bureaucrat made an incompetent decision.

          Because that may not be what happened. You blame the bureaucrat and assume they must be wrong. And these cases are rarely if ever that simple. If you would stop having a Palovian response to the word bureaucrat, you would realize it is not that simple. All the doctors have to go on is what they observe and their professional expertise. Moreover, we have lowered the bar for commitment, so the default position is to release someone absent a compelling reason to keep them. Doctors are more likely to be sued or get in trouble for guessing wrong (and yes that is all it is) and keeping someone than they do for letting them go. That is a direct result of society deciding to lower the standard for involuntary commitment.

          1. “Because that may not be what happened. You blame the bureaucrat and assume they must be wrong. And these cases are rarely if ever that simple.”

            Well whatever the problem was? It wasn’t that the guy was too difficult to commit.

            He was committed.

            The problem was that the VA didn’t keep him locked up. …and that’s as likely about budget constraints and incompetence as anything.

            I’ll say something else, too. We don’t get rid of the Second Amendment just because somebody uses a gun to kill an innocent person, and I don’t see why we should ignore the other ones just because a crazy person got loose and killed someone either.

            There could certainly be improvements, but in its basic structure, the way we commit people in this country does a pretty good job of respecting their constitutional rights–while keeping dangerous and unaccountable lunatics off the street.

            Moving to a system where the government can confine people indefinitely who are neither a danger to themselves or others is a fundamentally inferior system from a libertarian perspective.

            1. Well whatever the problem was? It wasn’t that the guy was too difficult to commit.

              Yes it is. You have to conclude they are a continuing danger. That is not so easy. Again, if the guy is swearing to you he isn’t going to hurt anyone and indeed even people who claim they will usually don’t, how much evidence does it take to conclude he is lying and really is a danger?

              There could certainly be improvements, but in its basic structure, the way we commit people in this country does a pretty good job of respecting their constitutional rights–while keeping dangerous and unaccountable lunatics off the street.

              No it doesn’t. It respects people’s rights but it lets dangerous lunatics out all of the time. There are very few people who are committed for the long term who haven’t already committed some horrible act. Most people who are dangerously mentally ill remain free until they do something awful.

              It used to be that we did a good job of keeping the dangerous off of the streets. We don’t anymore. The flip side is we respect people’s rights, releasing the dangerous is the necessary price of doing that.

              The bottom line is that no one can really predict who is actually dangerous and who is just crazy. So if you respect people rights, the dangerous are generally going to go free.

              1. So if you respect people rights, the dangerous are generally going to go free.

                This.

                Insanity Defense – Absolving the guilty
                Involuntary Commitment – Convicting the innocent

                1. That is my entire point Nerfherder. If you are going to say that people should be let out absent a really compelling reason to keep them, then you also need to be prepared to hold more of those people responsible for the bad acts they commit.

                  I am fine with doing that. It is however a trade off. I don’t think it is fair to tell the public “we are not going to commit people and when they victimize you not hold them responsible”.

                2. Scruffy Nerfherder: Concur.

                3. Insanity Defense – Absolving the guilty

                  Crime: willfully choosing to violate someone’s rights.

                  Insanity Defense: the inability to have made a willful choice.

              2. “No it doesn’t. It respects people’s rights but it lets dangerous lunatics out all of the time. There are very few people who are committed for the long term who haven’t already committed some horrible act. Most people who are dangerously mentally ill remain free until they do something awful.”

                There are a couple of serious problems, here.

                One of them is the suggestion that dangerous lunatics get out all the time.

                Do you have some documentation for this lunatic crime wave, or are we supposed to take your word for it?

                “Most people who are dangerously mentally ill remain free until they do something awful.”

                I don’t know that’s true either, but assuming it is–you think people should be locked up for things they haven’t done yet?

                Holy shit!

                A lunatic kills Chris Kyle, and suddenly we’re gonna throw out a world of babies to get rid of one drop of bathwater?

                There are lots of crazy people out there who aren’t a threat. We’re not going to lock them up just because you’re so risk adverse that you’d throw out a huge chunk of the Constitution just to protect Chris Kyle from the occasional lunatic.

                This is worse–far worse–than the suggestion that we should scrap the Second Amendment because of school shootings.

                1. Do you have some documentation for this lunatic crime wave, or are we supposed to take your word for it?

                  Yes. The number of mentally ill people in prison has exploded. The Bureau of prisons estimates 64% of the jail population are mentally ill.

                  http://www.prisonpolicy.org/re…..al_health/

                  Sure. Some of those are drug offenders but a good number are not. The number of mentally ill people in our prisons is proof that dangerous people are going free.

                  I don’t know that’s true either, but assuming it is–you think people should be locked up for things they haven’t done yet?

                  Holy shit!

                  Ken are you stupid or something? That is the entire debate here. Should we commit people who are “dangerous”? You can be dangerous before you commit a crime. We used to not respect people’s rights and lock them up in asylum’s before they committed crimes. Now we don’t do that. And as a result, we have a ton of mentally ill people committing crimes and ending up in our jails.

                  1. “You can be dangerous before you commit a crime. We used to not respect people’s rights and lock them up in asylum’s before they committed crimes. Now we don’t do that. And as a result, we have a ton of mentally ill people committing crimes and ending up in our jails.”

                    The overwhelming majority of people who have mental problems are not a danger to anybody.

                    Even the delusional people out there are mostly harmless.

                    Even the paranoid schizophrenics out there are mostly just a danger to themselves.

                    There are also a disproportionate number of black people in prison. There are also a disproportionate number of poor people in prison. You’re not going to start throwing them in prison–before they commit a crime–for being black or poor, too, are you?

                    Do you think we should throw all gang members in prison–even before they commit a crime?

                    What did you see American Sniper just yesterday or something? Take a day off. Drive out to Arlington. See the Tomb of the Unknown Soldier. Get it out of your system.

                    You’re becoming unhinged.

                    1. Ken,

                      You’re becoming unhinged.

                      No. Ken, you are dense a plutonium and are totally unable to grasp what I am saying. I don’t think we should go back to the old system. I am just saying a necessary price of not committing people is dangerous people committing crimes who would not have in the past since they would have been committed before they did.

                      I really don’t understand what any of that has to do with American Sniper or Arlington Cemetery. What the hell is wrong with you? Seriously, it is one thing to troll. It is quite another to completely misunderstand what is going on like this.

                    2. “I am just saying a necessary price of not committing people is dangerous people committing crimes who would not have in the past since they would have been committed before they did.”

                      Yeah, there’s an argument to be made that freedom always comes with a certain amount of risk.

                      It’s like that with the Second Amendment. It’s like that with everything.

                      But the argument I’m seeing from you is that becasue this constitutional practice leads to increased risk, we should get rid of it.

                      If I’m misreading that, I’m all apologies.

                      But I was reading you suggesting that people should be involuntarily committed for being a risk–like Progressive argue that no one should be allowed to own a gun because of the risk.

                    3. But the argument I’m seeing from you is that becasue this constitutional practice leads to increased risk, we should get rid of it.

                      No Ken, I am pointing out the first as a fact of life. I am not arguing we should get rid of that. If you go back and read my original post, my point was that if you want to respect people’s rights and not commit them, you also have to then hold them responsible for their actions. You can’t tell the public that you are releasing these people but you won’t hold them responsible for the harm they do. The public won’t accept that. So a stricter insanity standard is a necessary price for having a higher standard for commitment.

                    4. But the argument I’m seeing from you is that becasue this constitutional practice leads to increased risk, we should get rid of it.

                      Actually, I see John say the exact opposite a bunch of times in this thread. He’s saying it should come with a higher standard for the insanity defense. Honestly, if you want to acknowledge the subjects’ moral agency (and hence rights), it’s hard to ignore the notion of their responsibility for their actions.

                    5. Like I said, crime is willfully choosing to violate someone’s rights.

                      The insane should be treated differently if the choice they made to violate someone’s rights wasn’t made willfully.

                      We treat children differently, too, because they’re insufficiently equipped to make willful choices.

                      We should only be held responsible for the things we had a choice to do. We treat people who are shooting in self-defense differently, too–because they didn’t really have a choice.

                      In this way, the insane aren’t really being treated much differently than any of the other outliers. Except that in the case of the insane, instead of being given a get out of jail free card, they’re typically imprisoned in a psychiatric hospital–sometimes for a long time.

                      John Hinckley’s been in a psychiatric hospital for, what, 35 years? And that’s after being found not guilty by reason of insanity.

                    6. Actually, aside from the criminalization of psychotic disorders, lack of supported housing (whether that be a group home or a locked unit) is the most serious problem facing the mentally ill. Remember, our society, based on ignorance of these diseases, decided to send people home to live with their families who are ill-equipped in every possible way to care for people this gravely ill. Legislators, driven by the ignorance and stinginess that has a stranglehold on the American people refuse to fund supported housing because they believe it is too costly. The preferred model is supportive rather that supported housing (I don’t have enough characters to explain the difference. Until this country snaps out of this intractable ignorance, nothing is going to change. The mentally ill have no allies (even in the medical profession – due to ignorance). The media is the only hope that the mentally ill have to cure the insanity in the laws and in the way society is treating victims of schizophrenia and other severe disease states.

                  2. Yes. The number of mentally ill people in prison has exploded. The Bureau of prisons estimates 64% of the jail population are mentally ill.

                    To be fair, the number of “mentally ill” people in America has exploded. In part because the DSM is, arguably, full of invented and redefined mental illnesses. The bar is being constantly lowered for diagnosing mental illness.

                    1. And criminal behavior is becoming increasingly pathologized.

                      Regardless, gang members are disproportionately represented in our prisons, too, but I don’t think we should start jailing them regardless of whether they’ve committed a crime.

              3. Most people who are dangerously mentally ill remain free until they do something awful.

                I don’t actually see the problem with that. It is exactly the same as everyone else remaining free until they do something awful.

                Just because someone, mentally ill or otherwise, might harm themselves or someone else is no legitimate reason to deprive them of their liberty. Until they actually do something they have not violated the NAP. However, preemptively locking them up does violate the NAP; it is aggression against their person and their liberty.

                1. I don’t actually see the problem with that. It is exactly the same as everyone else remaining free until they do something awful.

                  I don’t either. It is however the way it is and a price that must be paid if you want to respect people’s rights.

                  Somehow Ken Shultz has managed to completely derail this thread by on the one hand accusing me of being unhinged and wanting to see American Sniper and lock every one up and on the other hand claiming the evil VA bureaucrats are not locking up enough people.

                  Ken has managed to make this thread completely incomprehensible. Just ignore Ken and what I am saying will be perfectly clear.

            2. I think you and John are talking about two different things.

              When you say “committed”, you’re talking about a 24 or 72 hour hold. Which yes, you’re right, is pretty easy to put someone into.

              When John says “committed”, he means (I think) long term involuntary holds, i.e.: Bedlam, Arkham, etc. Which is much, much, much more difficult to put a person into, and rightly so, I think.

              It’s basically the difference between an arrest and a prison sentence. The police can arrest almost anyone for pretty much no reason at all, but if they don’t charge you with something, they have to let you go. Semipermanent involuntary commitment is more like a prison sentence.

              1. perlhaqr

                That is exactly it. Getting someone committed for a short period is not that hard. Keeping them long term is very hard. Moreover, it is virtually impossible for a doctor to say that someone who has no violent history is a continuing danger. And that is what it takes to hold someone. Even if you think I am dangerous today, if I sober up and tell you I am no longer a danger, you have to release me absent compelling proof I am lying, which isn’t going to exist if I have no history of violence.

                This is why people are rarely if ever committed long term before they do something awful.

              2. “When you say “committed”, you’re talking about a 24 or 72 hour hold. Which yes, you’re right, is pretty easy to put someone into.”

                A 72-hour hold isn’t commitment.

                A 72-hour hold is like being able to hold an accused suspect for 24-hours for questioning before you charge him with a crime.

                Yeah, they get 72 hours to observe the patient, and if after all that evidence is collected observing the patient (and perhaps documented every hour on the hour), they decide the patient is a danger to himself or others, then they go for commitment–with a representative of the court.

                Once committed, the courts will come back periodically (varies by state) and if you want to keep them there after however long (say three or six months), then you have to defend that decision again–from the patient’s medical record.

                The ability to keep this guy locked up was the problem. He had been committed. There is no problem committing someone who has been committed!

                I don’t believe the VA is subject to the same restrictions. It’s probably easier for them to keep him locked up. I could be wrong about that, but I don’t believe the VA is subject to a local municipal judge inquiring about previous commitments. If they want to keep someone committed, I don’t know who they have to justify themselves to. Maybe it’s a federal judge?

                1. Anyway, the problem isn’t commitment. It’s release. Why did they release this guy? Obviously there wasn’t a good reason, but what rationale did they use? When they said he was no longer a danger to himself or others, was it because he was no longer suffering from the symptoms he was admitted with?

                  Given his mother’s testimony, I find that hard to believe.

                2. Maybe it’s a federal judge?

                  Maybe it’s a military thing?

                  Regardless, go reform the VA and leave the Constitution alone.

                3. I don’t believe the VA is subject to the same restrictions. It’s probably easier for them to keep him locked up. I could be wrong about that,

                  You are wrong about that. There is no special VA standard of commitment. Think about what you are saying. Yeah, the VA can lock veterans up easier than states can lock up ordinary lunatics. Yeah Ken, that would be a real popular standard.

                  Once committed, the courts will come back periodically (varies by state) and if you want to keep them there after however long (say three or six months), then you have to defend that decision again–from the patient’s medical record.

                  Which is virtually impossible to do if they guy doesn’t admit to being violent and has no violent history.

                  1. “There is no special VA standard of commitment. Think about what you are saying. Yeah, the VA can lock veterans up easier than states can lock up ordinary lunatics. Yeah Ken, that would be a real popular standard.”

                    It isn’t about what’s popular.

                    It’s about federal agencies not being under local municipal jurisdiction.

                    …especially when it comes to military. Military justice is much harsher than in the civilian world–is my understanding. And if they’re using the military justice system (or no judges at all) to involuntarily commit people, then it wouldn’t surprise me.

                    1. Ken,

                      the VA handles people who are no longer in the military. That is why they are called the VETERANS’ ADMINISTRATION. There is no special standard for people who once were in the military but are not now.

                    2. John is correct. The VA doesn’t have a different standard on it than anyone else.

                      I used to work as a debt collector and one of the debtors I collected from was a psychotic in continual need of medication. Every month he’d get his disability check from the VA, but instead of buying his prescriptions he’d go out and blow all of his money on alcohol, drugs, and prostitutes. He’d eventually have a psychotic break, do something to get himself committed (to a VA hospital), they’d dose him up with meds, then release him once he was lucid.

                      There was absolutely no dispute that the guy was nuts when not medicated, violently so. He threatened to kill me on more than one occasion (although when medicated he was a very pleasant person and all of our interactions were congenial). He threatened to kill the medical staff at the VA hospital when he was in the psych ward. Even then they couldn’t hold him because when he was lucid he told them he’d take his meds and wasn’t a threat…and there was nothing the VA could do.

                      John’s right…if we’re going to have a system that will respect people’s rights in terms of commitment, we can’t reduce their legal liability for committing crimes. It’s a tradeoff. Personally, since most people with mental illness aren’t nuts (as you note), I think we’ve got it right…even if you are correct that some of these guys don’t know what they’re doing.

                    3. Correction…since most people with mental illness aren’t *dangerous*, I think we’ve got it right (wish Reason had an edit button).

                      The choices are 1) more pre-emptive incarceration/a more lenient insanity defense, 2) more pre-emptive incarceration/a less lenient insanity defense, 3) less pre-emptive incarceration/a more lenient insanity defense, 4) less pre-emptive incarceration, a less lenient insanity defense.

                      All of those will involve someone having their rights abridged…it’s just a question of whether you want it to be the mentally ill person or the victim of crimes committed by mentally ill people. And if it’s the mentally ill person, it’s a question of what stage in the process you want to abridge their rights…before they’ve committed a crime or after.

                      Personally, I think we should go with option 4, less pre-emptive incarceration, but a less lenient insanity defense…it punishes fewer mentally ill people for crimes they haven’t committed but still punishes crimes. It’s not the ideal solution, but an ideal solution doesn’t exist.

                    4. “Personally, I think we should go with option 4, less pre-emptive incarceration, but a less lenient insanity defense”

                      The only standard for an insanity defense that really matters is whatever the jury will buy.

                      They couldn’t sell the jury on an insanity defense for the guy that killed Chris Kyle.

                      I feel sorry for his cellie.

                    5. They don’t buy the insanity defense in most cases.

                      I phrased that poorly…I mean I think that we should choose the fourth option, because that’s what’s already in place. We don’t pre-emptively incarcerate people who’ve committed no crime, but we hold those who do responsible.

                      If we didn’t pre-emptively incarcerate and let them off the hook for insanity more easily, it would be a disaster, because a mental health system that can’t effectively diagnose the difference between a dangerous and not dangerous mental patient probably isn’t going to do much better if you flood it with people who’ve committed murder.

                      Some problems just don’t have a good solution.

                    6. “John’s right…if we’re going to have a system that will respect people’s rights in terms of commitment, we can’t reduce their legal liability for committing crimes. It’s a tradeoff.”

                      Except justice isn’t a tradeoff, and no one is saying that violent criminals can’t or shouldn’t be locked up if they’re dangerous.

                      Again, the problem isn’t that the man that killed Chris Kyle wasn’t committed to a mental hospital–the problem is that he was released after being committed.

                      There are important distinctions between being confined to a mental hospital and being thrown in jail, but committing someone to a mental hospital is actually much, much easier than throwing someone in jail.

                      For some reason, some of you seem to think that the only alternative to a criminal conviction for the mentally ill is letting them go free. That isn’t so.

                      Crazy people who have committed crimes, were prosecuted, and found not guilty by reason of insanity are typically confined to a mental hospital. That’s without having been convicted of a crime.

                      You don’t even need to be found guilty of a crime to be confined to a mental hospital.

                    7. Sounds like the VA has a big problem with this. Sounds like your “friend” was a threat to others. Sounds like they should have kept him confined. Sounds like the local prosecutor wasn’t doing his job by refusing to prosecute a crazy person that goes around making violent threats to debt collectors.

                      Ignoring the fundamental principle of justice that real crimes aren’t arbitrarily whatever gets the government the most bang for its buck–isn’t the solution to any of those problems.

                      Tony says justice is whatever the government says it is. He’s wrong!

                      There’s this thing called mens rea, and it is fundamental to a free and just society. If the VA, the local prosecutor, and any other government entity are failing to do their jobs properly, that is no reason to chuck mens rea out the window.

                      I would go so far as to say that mens rea is an aspect of natural law–a law that has naturally arisen out of centuries of jurisprudence–and to actively work to undermine such principles will likely have severe consequences over time.

                      How can you be punished for having a guilty mind if you don’t even have control of your mind.

                    8. Except justice isn’t a tradeoff

                      Sorry, but justice is absolutely a tradeoff. That’s entirely what our legal system is…a series of tradeoffs and compromises. We abdicate certain rights for security, we defer retribution for independent arbitration, we come to settlements rather than await verdicts.

                      Unless you’re sticking the SJW definition of “justice”, which is some delusional fairytale about how all verdicts and laws are entirely acceptable to all and prevent bad things from ever happening. I’ve read your comments for quite awhile and you don’t strike me as that utopian.

                    9. “Sorry, but justice is absolutely a tradeoff. That’s entirely what our legal system is…a series of tradeoffs and compromises.”

                      That may be politics, but that ain’t justice.

                      Justice is when you abolish slavery even if it means civil war and destroying the Southern economy.

                      Justice doesn’t pay any heed to tradeoffs.

                      Protecting an individual’s rights against the interests of society is extremely inconvenient for society.

                      But then our individual rights don’t exist for society’s convenience.

                    10. The question is about the standard the VA itself uses.

                      They’re not constrained by state law.

                      In the civilian sphere, people are committed by a judge, usually in accordance with the recommendation of a representative of the court who has formal training in mental health issues.

                      How are people committed in the VA system?

                      They’re not constrained by state law.

                      I have no idea what legal authority they use to commit people, but I doubt they go to a municipal judge.

                    11. With the guy I mentioned, he’d go nuts, threaten or maybe beat up a hooker, the cops would arrest him and send him to the VA (because they had nowhere for him), the VA would medicate him until he was lucid again. Any crimes he committed were low-level enough that the cops usually didn’t want to press charges…wasn’t worth their time or resources. So they made that arrangement with the VA apparently, with the guy’s family’s consent.

                      With a lot of these guys, it’s just a revolving door, because (as John noted) there’s really very little that medical professionals can do long-term. The VA has no authority to detain veterans in involuntary care long-term without a court ruling…they’re not law enforcement. If the cops don’t want to press charges, there’s nothing the VA can do except treat him and release him once he’s lucid enough to not be a danger to himself or others. Even if, in a month, everyone knows he’s going right back to being a psychotic when he decides he’d rather have drugs, booze, and hookers than his meds.

                    12. And the reason the guy went to the VA was that he was a veteran and the VA will usually cover the cost of treatment for vets…especially if he’s disabled or medically retired (which he was). The cops likely sent him there because it was their best option…even though there’s very little the VA could do except dose him until he’s lucid.

                      It wasn’t a form of incarceration…the guy just got treated because he was a veteran and the VA would cover the tab. I wouldn’t be surprised if it was the same deal with Routh.

                    13. They’re not constrained by state law.

                      They are constrained by the Constitution.

                    14. Yup…due process. You can’t just incarcerate someone without going through the legal system, unless that person is a Muslim and your name is Obama or Bush. 🙂

                      Great points today, John. You changed my opinion on quite a few things involving the criminal justice system and mental illness…which (as my friends will tell you) isn’t easy to do. 🙂

                    15. “They are constrained by the Constitution.”

                      Or how it’s being interpreted.

                      Again, you don’t get a jury trial when they decide to commit you to a mental hospital–even under state law. You get a representative of the court to come out and make a ruling. Partially, that may be because you’re not being sentenced for a crime.

                      The courts may have determined that you’re not being held against your will–your will may not be much of an issue if you’re a danger to yourself or others. Notice, I’m not saying that’s the way it should be, …

                      Now, the patient can turn around and sue the hospital for false imprisonment if they didn’t dot their “i”s and cross their “t”s, and you can get a jury to hear that case–but that’s after you’ve gotten out of the box.

                      I don’t know what the federal statutes are on commitment to a VA hospital. I would think they have to assuage the Constitutional concerns somehow, but I don’t know how they do that federally. However it is they make those determinations, they failed miserably in the case of Chris Kyle’s killer.

                      But incompetence at VA isn’t a reason to change anything anywhere else but the VA.

                    16. Sorry, but John nailed it when he pointed out that what you’re discussing is the way you’d like it to be…not the way the system actually functions under the laws we have, or why it functions that way.

                      You’re also not proposing anything tangible in regards to reform that will cause these outcomes to happen.

                    17. Again, I’m talking about the way it really is.

                      There is no jury trial that determines whether you’re committed.

                      That’s the way it really is.

                      If someone you know calls up and tells a hospital that you’re a danger to yourself or others, they send the guys with the nets a PET team or the cops, they drag you away, lock you up, and observe you for 72 hours, and then a court representative comes to hear what the hospital staff and the psychiatrist have to say. The court representative makes a recommendation, and if a judge follows a recommendation of commitment, you’re committed.

                      You can sue later for false imprisonment, but that’s about it.

                      That’s the way it really is.

                      It is much easier to commit someone than it is to convict someone of a crime.

                      How do they do it at the federal level? How do they do it at the VA?

                      I don’t know. I’m assuming they have to justify committing someone to a judge, but I don’t know. Being committed isn’t like being convicted of a crime, but you can be committed when you successfully defend yourself under an not guilty by reason of insanity defense.

                      I’ve heard of people being committed for much longer than they would have been imprisoned if they’d plead guilty.

                    18. For the record:

                      “During the period of confinement, a confined individual is evaluated by a mental health professional to determine if a psychiatric admission is warranted. Confinement and evaluation usually occurs in a county mental health hospital or in a designated Emergency Department. If the individual is then admitted to a psychiatric unit, only a psychiatrist may rescind the 5150 and allow the person to either remain voluntarily or be discharged…

                      (Continued)

                    19. On or previous to the expiration of the 72 hours, the psychiatrist must assess the person to see if they still meet criteria for hospitalization. If so, the person may be offered a voluntary admission. If it is refused, then another hold for up to 14 days, the 5250 (WIC-5250), must be written to continue the involuntary confinement of the person. A Certification Review Hearing (W&I 5256) must occur within four days before a judge or hearing officer to determine whether probable cause exists to support the 5250. Alternatively, the person can demand a writ of habeas corpus to be filed for their release after they are certified for a 5250, and once filed, by law, the person must appear in front of a judge in two (2) days, which is two days sooner than the Certification Review Hearing.”

                      http://tinyurl.com/mtpt7kz

                      That’s the process of how someone is committed in California.

                      Do they go through all that at the Federal level?

                      Which judge do they use?

                      Do they use any judge at all or is it done administratively?

                      I don’t know.

                      The crucial point I’m trying to make here is that the VA seems to have failed on the discharge side. The question isn’t about them not being able to commit the guy and get through that process in the first place.

                      The question is: Who let the dog out?

    2. Asking if someone knows right from wrong is an excellent test of insanity, realizing that insanity if a legal not a medical concept. If someone genuinely believes that someone wants to steal his bodily fluids, he still, if he knows right from wrong, has the ability to realize that pre-emptively killing his putative enemy is wrong.

      There are two problems with this line of thought.

      First, “right” and “wrong” (and knowing the difference) are subjective concepts. For some radical, Sharia fundamentalists, killing a daughter for dishonoring the family is not wrong. However, they know “right from wrong” and are, otherwise, sane. Their definitions just differ. That doesn’t make it proper or just, but it illustrates a problem with a simple test of knowing right from wrong.

      Second, even when the definitions are aligned, the insane may — taking from your example — also genuinely believe that te person trying to steal his bodily fluids is not human. He would pass your sanity test, ’cause he knew killing was wrong. However, he genuinely believed it was not wrong b/c the victim (to his perception) was not a person.

  5. Further, from what I have read, the Kyle killer has no case for even the lowest standard of the insanity defense. He initially claimed to have PTSD only to have it revealed he never saw combat. The guy cold bloodily murdered two people and had enough sense to run from the cops after committing the crime.

    1. had enough sense to run from the cops after committing the crime.

      “*However*, he believed they were firebreathing dragons who were planning to tickle him unmercifully.”

  6. There is a huge difference between being crazy and being insane to the point of having no criminal liability.

    I have had many crazy girlfriends, but they were all very aware and responsible for what they did!

    1. responsible

      *Pretty sure* it was *your* fault. 😉

  7. The bar is high for the insanity defense. It has moved in quite some time.

    There’s a difference between having bugfuck nuts ideas (human rotisseries, thinking your kids are possessed by demons, etc.) and literally not knowing what you are doing (roughly, the insanity defense standard).

    1. If a defendant could prove that he was delusional such that he honestly believed his children were possessed by demons and were going to kill him, he would prevail in an insanity defense. The problem is that very few if any defendants are going to get a jury to believe that.

      The insanity defense is slightly more subtle than not knowing what you are doing. Not knowing what you are doing could be a mistake of fact, for example shooting your son thinking he is a burglar. To win an insanity defense you have to establish that you were so delusional that you didn’t understand what you were doing was wrong. You really thought the kid was the devil and feared for your life kind of thing. The other good example would be someone sleep walking and stabbing their wife thinking they were acting in the dream and no knowing they were acting in reality.

      1. If a defendant could prove that he was delusional such that he honestly believed his children were possessed by demons and were going to kill him, he would prevail in an insanity defense.

        You’re right. I had misremembered the case:

        http://www.dallasnews.com/news…..s-2446.ece

  8. it raised a question: If this guy isn’t crazy, writes Steve Chapman, who is?

    Jacobim Mugatu?

    Randle McMurphy?

    King George III?

    1. Adam Lanza. Suppose the cops had captured him and he knew the kids were real but thought whacking them was going to put his score in the big video game in the sky to record levels. He is clearly fucking nuts. But if he knew the kids were real and knew killing them was going to get him in trouble, how is he not responsible even though he is delusional?

      1. Lanza wasn’t captured. The police heard never saw him before he killed himself…they just heard what they believe was the final gunshot where he did himself in.

        Most of the “violent video game” rationale was just idiots trying to pin blame on things other than Lanza. What they found during the investigation was that Lanza’s favorite video game was actually Dance Dance Revolution that he played at the movie theatre. Nobody really knows what caused him to do what he did or what he was thinking at the time.

        1. I meant it more as a hypothetical not as a comment on Lanza. I hadn’t heard that though. I, however, am not surprised that what the media reported about the case was a lie. It is just like the little bastards at Columbine turning out not to have ever been bullied but in fact were bullies themselves.

          God I hate the media.

          1. Agreed. They rushed to fill in the blanks on Lanza because it fit a narrative and the news cycle, not because it fit what actually happened at the scene. The coverage by the press was utterly irresponsible.

  9. But the jurors needed less than three hours to decide that for purposes of criminal law, Routh was as sane as Tom Hanks.

    That ain’t sayin’ much.

    1. And that isn’t what that means. It means he knew what he was doing. You can be insane and still be a murderer. The two are not mutually exclusive. Chapman seems to not understand that and think that “insane” is the same as “not criminally responsible”.

      1. Re: John,

        And that isn’t what that means.

        Well, Hanks is kind of a crazy bastard, so…

        Chapman seems to not understand that and think that “insane” is the same as “not criminally responsible”.

        Indeed, a person can be clinically insane and yet still know that killing is wrong. Most persons with mental problems are not violent. Schizophrenics and paranoid-schizophrenic persons are not normally violent people. There is a difference between thinking that killing is an insane act (which it is) and thinking that a killer is insane. Some people seem to conflate the two.

        1. Why is Hanks crazy? What have I missed? He always seems pretty normal. He has been married to Rita Brown for almost 30 years.

          1. Wow…he’s been married to Rita Brown for 30 years? How does Rita Wilson feel about that? 🙂

            Bigamist…he’s definitely a crazy bastard then. Because who would want to deal with two wives for that long? 🙂

            1. Rita Wilson. Rita Brown. The hot Jewish girl from Volunteers, whatever her name is.

              1. Haha…I know, I’m just busting your balls. 🙂

  10. It strikes me as being a rather dumb move to take a guy who supposedly has PTSD to a gun range.

    1. Its actually pretty much in line with how you treat PTSD: desensitize the patient by exposure to the triggers for his PTSD.

  11. Of course he was insane but the idea that he would be “thoroughly treated” in an institution belies the years of valuable work of Thomas Szasz exposing psychiatry and their “treatments”- the medications Bouth was on most likely triggered or exacerbated his instability which led to the murders in the first place- please consult your colleagues Sheldon Richman and Brian Doherty who have both spoken to and about Szasz in the past

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  14. If he knew the act was wrong, he is not criminally insane. ANY attempt to conceal the act shows knowledge of right and wrong. Contrary to your statement, it is not difficult to prove criminal insanity. It’s just rare in the real world.

  15. The problem here is that in a court of law, insanity is not a psychiatric diagnosis, it’s a legal determination. All a court wants to determine is whether the defendant is capable of understanding whether or not what he did was wrong, regardless of whether or not he’s batshit insane in a clinical sense. A psychiatric diagnosis is not germane to the court’s finding.

  16. After reading the article is it odd if I hear Chief Wiggum’s voice saying, “No jury in the world’s gonna convict a baby. Maybe Texas.”

  17. “You can’t fool me, there ain’t no Sanity Clause”

  18. Dahmer killed and ate people. If that’s not batshit crazy I don’t know what is, but he was held responsible.

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