Is It Time to End the Use of the Insanity Defense?

The insanity defense is the single most controversial legal doctrine relating to the mentally ill.

Lawyers have forgotten the intent of the Not Guilty by Reason of Insanity (NGRI) defense: There is a need to distinguish between those defendants charged with a crime who are responsible for their acts and those who are not. The insanity defense exists to make that distinction for people with a mental illness/disability. The intent of the insanity defense is to exculpate both those who are unable to understand that their act is wrong, as well as those who are unable, due to mental illness/disability, to control their actions.

On March 22, 2021 Ahmad Al Aliwi Alissa killed 10 people, including a Boulder police officer at a King Soopers grocery store in Boulder, Colorado. As information is now being garnished from sources, a sinister picture emerges.

His brother, with whom the accused lives, said he was bullied in high school and teased because he was a Muslim. Classmates distanced themselves from him because of his hot temper. His brother added that he had recently displayed increasing paranoia. He covered his computer camera with duct tape so no one could see him. He believed that someone was chasing him from behind. He bought the AR 556 pistol several days before the shooting. He was wearing a tactical vest when he entered the establishment and also carried an additional handgun, a 9 mm pistol. Additional unspecified weapons have been found at his home. As information begins to emerge illuminating his mental state, I believe the defendant‘s attorney might be setting the stage for an NGRI plea which is generally reserved for those cases where the attorney has little other choice.

Robert Aaron Long is now facing murder charges in the shootings of eight people, six of them Asian women, in three Atlanta-area spas on March 16, 2021.

He certainly was a troubled individual.

His parents were strict religious Southern Baptists. Crabapple First Baptist Church said that, “We watched Aaron grow up and accepted him into church membership when he made his own profession of faith in Jesus Christ.”

Long devoted much of his energies during high school to his faith.

He had sought treatment for his pornography habit and penchant for buying sexual services at massage facilities. He even spent time in an evangelical treatment clinic for sex addiction struggling with his behaviors that were clearly at odds with his religious beliefs.

Long told investigators he saw spas as temptations he wanted to eliminate. Prior to being caught, he reported he was heading to Florida to continue his spree. His capture saved lives.

As an aside, his church issued a statement, saying the “unthinkable and egregious murders directly contradict his own confession of faith in Jesus and the gospel” and catapulted him from his membership.

One question yet unanswered is whether a reported sex addiction qualifies as a mental illness/mental defect and whether it can compromise a person’s mens rea (knowledge of wrongdoing). Might this lead the way to a possibility of a NGRI plea? The stakes for choosing a defense are incredibly high in Georgia since a guilty finding can result in the death penalty.

Both Georgia and Colorado use the McNaughton Rule as the definition of insanity: “A person shall not be found guilty of a crime if, at the time of the act, omission, or negligence constituting the crime, the person did not have the mental capacity to distinguish between right and wrong in relation to such act, omission or negligence.”

Will Long’s attorneys try an insanity defense? I would suggest they have no other legal option.

On July 20, 2012, a mass shooting occurred inside a Century 16 movie theater in Aurora, Colorado during a midnight screening of the film The Dark Knight Rises. Dressed in tactical clothing, James E. Holmes set off tear gas grenades and shot into the audience with multiple firearms. Twelve people were killed and 58 injured.

The gunman surrendered to police and was later convicted and sentenced to more than 3,000 years in prison. Holmes had scoped out various theaters and rated them based on the number of possible exits. Prosecutors said he blasted techno music in his headphones during the shooting. He had also booby-trapped his apartment in preparation to harm any person attempting to enter.

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Had he been found not guilty by reason of insanity (as he pleaded), Holmes could have been committed indefinitely to a state mental institution. A frightening prospect would also have existed. If he were later deemed "sane," he could have theoretically been released at a later date.

It is no secret that Holmes had struggled with mental health issues throughout his life, but mental illness is not the same as criminal insanity.

After such tragedies, the question often asked concerns motive. What could drive someone to inflict such harm to others? Motive can be nebulous and is often not the primary predictor of assessing whether a defendant can distinguish right from wrong.

In Georgia as well as Colorado, retained experts for each side will introduce their views in the courtroom. Experts will meet with the defendant repeatedly, collect mounds of collateral information, review pages of documents in preparation for defending their opinion as to the mental state of the accused at the time of the alleged offense. Experts may disagree in their findings and are subject to fervent direct and cross-examination on the witness stand. A judge and/or jury then considers their testimony and reaches a finding regarding insanity. This is euphemistically referred to as the “Battle of the Experts.”

The use of this defense was never intended as a legal maneuver.

The statutory definitions in both states exclude “moral obliquity, mental depravity, or passion growing out of anger, revenge, hatred, or other motives and kindred evil conditions.”

Alissa’s intent on the afternoon of the murders remains largely unclear. His brother is suggesting bullying by classmates and that recent paranoia might have played a part in his decision to commit the recent massacre. Evidence on predicting violence thus far has indicated that mental illness does not foresee violence. Many individuals are bullied in school and they do not choose the path of murder.

Long asserts that by killing the proprietors of these establishments he is effectively removing the external temptations that he believes drive him. In actuality, he is using the defense mechanism of projection, which takes his own unacceptable feelings and ascribes them to other people. He then incorrectly assumes that by eliminating the stimuli, his deviant desires will stop.

As to Holmes, I don’t believe society will ever have a comprehensive understanding of what led him to commit these horrendous murders.

Dr. Reid, the states forensic psychiatrist, who had spent hours with Holmes stated in his book, Dark Night in Aurora: Inside James Holmes and the Colorado Mass Shootings, “that what led Holmes to open fire in a crowded Colorado movie theater was a one-of-a-kind vortex of his mental illness, his personality, and his circumstances.”

In closing, I want to reiterate that the intent of the insanity defense is to exculpate defendants who are unable to understand that their act is wrong by reason of mental illness.

As a demonstration of the misuse of this plea by attorneys, it is my opinion that neither Alissa nor Long's nor Holmes’ mental state rise to the standard required by law to meet the necessary criterion to be found NGRI. The lawyers have no other options since the evidence overwhelmingly suggest the guilt of all parties described above.