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Yeah, from Gainesville, Florida Hello, I'm Mike Cannon. And this is conversation. As I assume. Everyone knows. A young man named John Hinckley Jr was tried for the March 30th 1981 attempted assassination of President Reagan, and subsequently, a District of Columbia jury found him not guilty of shooting the president by reason of insanity.

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The resounding public question from the jury's decision was, How could Hinckley be found not guilty When television viewers were able to watch the shooting and see him apprehended afterwards, Hinckley's attorneys had presented an insanity defense, claiming his mental capacity to make a reasonable decision was not that of a normal, sane person.

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What exactly is the insanity defense, and what are the criticisms that can be made of it? We shall discuss the issue when I return in a moment with my guest. Five Live presents conversation from the University of Florida, a discussion of social, political, scientific and religious issues of the day.

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Your host is Dr Michael V. Gannon, professor of history and Ethics, an assistant dean of the College of Liberal Arts and Sciences at the University of Florida. My guest on this conversation is Professor William J. Winslade, philosopher, attorney and research psychoanalyst at the University of California, Los Angeles.

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Bill. Welcome to conversation. Thanks. Why is there so much controversy in the wake of the Hinckley trial? What is it about the insanity defense that has caused attorneys, philosophers and many others in our society to question the validity of that kind of defense? One of the reasons Mike, is that there are two conflicting moral traditions when it comes to the assessment of behavior when someone kills or rapes or attempts to kill or rape or rob another person.

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One of those traditions says that somebody who does bad acts should be held responsible for their conduct, and their state of mind is irrelevant. The other tradition says that people who do bad acts can only be held responsible if their state of mind was that of a sane person.

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The controversy about the insanity defense brings these two moral traditions into direct conflict about our notions of responsibility, of blame, of punishment and of the role of the state. The controversy has been resolved, but the resolution has been an uneasy one for over the last century in the United States, and cases like the Hinckley trial bring up again the fundamental assumptions about human behavior and moral responsibility that our intention in these two traditions you have a forthcoming book entitled The Insanity Plea.

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In that study, do you go back to the earliest examples of such pleas to the McNaughton rule of the last century? For example, only in passing do I look at the history of the insanity plea. This book is a study of six cases about different aspects of the insanity plea as it's presented in the courtrooms today.

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I look at the breakdown in the legal system when the insanity pleas introduced the role of psychiatric experts. Yeah, the determination of insanity, the role of attorneys in criminal trials when the insanity plea is used. And in the book. I try to show that even if one is theoretically sympathetic to the notion of the insanity plea as a defense to criminal responsibility, the system breaks down at so many points that the insanity plea is something we could do without and would be better off if we didn't have it at all.

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Am I correct bill that in federal law, and it was under federal law that John Hinckley was tried. The real burden falls upon the prosecution, the prosecution. The prosecution must demonstrate that the defendant was saying, That's right. Like in in federal law and in 25 states, the burden of proving sanity falls on the prosecution.

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This burden yes, is very difficult to me, not only because proving sanity is such a vague and elusive concept, but also because they have to prove sanity at the time of the crime. And it's very difficult, no matter how conscientious and skills your researchers and investigators and interviewers are to reconstruct at the time of the crime.

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A person's state of mind, especially if the defendant, as in the Hinkley case, has an interest in showing that at the time of the crime, he really wasn't saying. And what typically happens in an insanity trial, especially one as notorious as the Hinkley case, is that you have, uh, what some people call a battle of the experts testifying for the defense.

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That Hinckley was quite crazy, remains crazy, was crazy before the crime, and the prosecution witnesses who say, Well, he's got problems, but he wasn't crazy, he was saying, and the battle of the experts typically turns into an enormous circus in which financial costs and public confusion, jury boredom and lawyers antics takes over.

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And we lose sight of the fundamental question of how difficult it is to know even when crime hasn't been committed, what a person's state of mind was months or even years before a particular act occurred. The psychoanalysts or psychiatrists, argued and quarrel with each other as regards the evidence for 10 full days.

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I understand what is the long range result of the profession standing after such a performance? Well, in my book, I take the position that mental health professionals, psychiatrists and psychologists in particular come off looking very badly in the insanity plea cases. For a number of reasons, one of them is the methods of mental health professionals for diagnosis and treatment are really irrelevant to the problem that's posed in the criminal trial.

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What was the defendant state of mind at the time he committed the act? They don't really have techniques for discovering that by interviewing or giving psychological tests, the best way to find out what a person's state of mind was at the time of the crime is to find out to look at his behavior, to ask those people who saw him to ask the person who did the act in question.

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But typically in a criminal trial, the defendant never takes the stand. Sometimes they do. Sometimes they don't because of our Fifth Amendment privilege against self incrimination, they're not required to. But mental health professionals who interview a defendant months later really are not in a good position to get access to that information.

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Even if they are, their techniques are not scientific in the way in which a pathologist who is determining blood types or a physicist who is evaluating a particular experiment might be said to be giving scientific testimony. Psychologists and psychiatrists practice and art rather than exercise scientific method in participating in trials.

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And I suppose the lingering effect in the minds of the jurors and others who attended the trial was that this art was very abstract art, non representative art. There was nothing very precise that anybody could get a handle on and and and would, uh, what would have been the effective John Hinckley had taken the stand?

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Would he have been helped her damaged? Well, I think that, uh Hinckley, in speaking for himself as he has done subsequently in his letter in Newsweek, has demonstrated his mental incapacity at the present time. What he was actually thinking at the time of the crime is very difficult to determine, although he has said different things to the psychiatrist that interviewed him at different times.

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But the problem is further complicated by the technique of examination conducted by lawyers in a criminal trial, so that even psychiatrists who have reasonably intelligent things to say can be made to look foolish by clever attorneys. And psychiatrists are playing a game not only not in their own field, but not even by the same rules that they normally work with.

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MM, certainly. It's difficult to fix complete blame for any action of a human being because we don't know what his state of mind is at a given moment. Uh, that human being may have a psychosis, may have a neurosis, and I'm told we all have neurosis of one kind or another may have been daydreaming or have been irresponsible for some other reason.

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How can we say with the precision, even in a case that you've called notorious the Hinkley case that this exactly was the defendant state of mind at the time of the commission. Well, I take the position in my book that even if in theory, we could know a person's state of mind at the time of a crime that in practice, given the limitations of psychiatric testimony and the restrictions because of legal method of cross examination that we really can't no, we can't be sure as a practical matter and that because of that, I would rather not spend the time trying to make that determination.

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I advocate that if somebody commits a serious offense such as homicide, rape or robbery, that we ought not to be concerned about trying to reconstruct their state of mind at the time of the crime. If the person did the act in question, did it intentionally, knowingly or recklessly, then I think we should hold them legally responsible.

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And that's not that we should necessarily blame them or, um not blame them that we that's a separate question, but that they should be held legally accountable, legally responsible for their conduct. A second question then must be asked Once we've made a determination that for killing another person.

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The law is going to impose a penalty of imprisonment for a certain period of time or for other serious offenses. But then, on top of that, we need to know in order to protect society from future incidents of violence. What is this person's condition now? How dangerous is he?

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Can we tell what sort of treatment, if any, would be appropriate for this person? And that's where the mitigating factors can be introduced, perhaps the lack of full mental responsibility for for his or her actions at that time, and from an analysis of the condition of the defendant or the convicted felon.

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At this particular moment, the judge can assign a kind of punishment that is commensurate with the level of moral responsibility of the well. I would I would be very careful to say that since I have denied that we can know what the person's state of mind was at the time of the crime, with any kind of reliability, that the mitigating factors that would be considered in the sentencing for the Criminal Act be taken from non expert testimony, but rather from witnesses, friends, family people who were around at the time who could testify to stresses or pressures or strange behavior or special circumstances, and that that decision be made by the judge in the course of the trial or in the pre sentence investigation.

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Pre sentence, Yes, but that is done now, isn't it, Bill? That's done now. But one of the things that I would advocate strongly is that all of that, including the determination of whether the person did the act and the mitigation and sentencing be done without the testimony of psychiatrists without the testimony of psychiatrists, if not psychiatrists, then who should testify in such cases?

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You mentioned people who are acquaintances or friends, people proximate related to the person at the time. People who were there in the vicinity saw the person's behavior. They're the best witnesses as to what sorts of realistic, mitigating circumstances there would be. I have no objection to the prosecution or the defense using psychiatrists as consultants to plan how to get the information that they need.

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But it is my belief that the jury and the judge is are not impressed by and not aided by psychiatric testimony. When it's filtered through the adversary process, it really comes out in the words of the attorneys as they draw conclusions from what they hear the professional, some words of the attorneys and the jargon of the mental health profession.

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And I think the mental health professionals have an important role to play. When a person claims not anything about their state of mind at the time of the crime, but says, Right now I am suffering. I am sick. I need help. Then the psychiatrist can use their clinical skills.

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The psychologist can use their diagnostic instruments, and they can make a judgment whether John Hinckley right now needs treatment, what sort of treatment he might receive, what the prospects are for, uh, removing some of the problems that he has through medication or group therapy or other forms of treatment that might be available.

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And if you had recast the Hinckley trial, you would have limited the witnesses to those who had actually seen the shooting Friends, acquaintances and I wonder about family members. Family members certainly have something to contribute. Um, people who had it would even be appropriate. Although dangerous, to have the psychiatrist that he had seen prior to the shooting, if somebody was in treatment It makes sense to have a professional who had been in a treatment relationship with a person to testify if the person wanted them to testify, because there is a confidentiality seal or pledge there.

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But the patient who puts his mental state at issue but by saying I was crazy then waves the privilege of confidentiality in that situation. But the psychiatrists and psychologists that interview a defendant usually after and sometimes long after a crime is committed, do not have a therapeutic relationship with the defendant, and the defendant is already posed to try to reveal consciously or even unconsciously, factors in their personality that might make them not responsible once they've decided to make the plea in the first place.

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If not, psychiatrists are there any other professional groups who would be apt witnesses for either side? I wonder about philosophers. Well, I am myself rather skeptical about our cultures, excessive reliance on experts. We tend to turn to experts when we're uncomfortable ourselves with dealing with problems directly.

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The insanity plea is a particularly troubling problem because no one wants to say bluntly or baldly, that somebody who is really obviously crazy should be blamed or beheld guilty for their crimes. And yet we do have to say that the law and our society cannot tolerate that kind of behavior, and the experts then become a kind of substitute decision maker and sometimes a scapegoat for our uneasiness.

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In some context, of course, experts can contribute very important information to our deliberations about matters of fact. But too often experts are used by the attorneys to try to substitute their views for the responsibilities of the jury's in totally unrelated context, like antitrust litigation. Economists testify with as much diversity as psychiatrists do in the insanity plea, depending on whether they're plaintiff for defense attorneys.

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And they come in with their theories and their charts and their graphs. And the jurors are flooded with information that even professional colleagues, the economists might have trouble understanding. Uh, we've called the Hinckley trial notorious, and indeed it is, uh, if only for the fact that it caused such a great public outcry at the jury's decision and the reason for the jury's decision.

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But how frequently in American society do we have such defenses and such jury decisions? Do we have any statistics on that? Well, proponents and opponents alike of the insanity plea are quick to point out that it's a plea that's entered in maybe only 2% of the criminal cases.

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The problem is that there are not. There's not a consensus on the statistics, but 2% of 100,000 cases a year, a lot. Also in the last 10 years, the insanity plea has been used a great deal by people who are quite questionable candidates for making the insanity plea there.

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In New York state, a blue ribbon commission, after investigating the use of the insanity plea in the last 10 or 15 years, made a recommendation that the insanity plea be abolished, that it was used primarily by upper class wealthy individuals who could afford to make the financial investment.

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And it was used in cases where the merits of the plea were dubious. More and more people were getting off on insanity defenses in New York at the time that the study was done. Some states, like Florida, has a very restrictive insanity defense. It's used only in a small number of cases, and the test for establishing insanity is very narrow.

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But even so, it's not clear that the use of the plea couldn't be eliminated, and the case is handled in another way that would be equally effective. Are you familiar with the law in Florida and how it differs if it differs at all from the prevailing federal law?

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My understanding of the Florida law, based on my discussions with some folks yesterday, is that Florida has what is called the McNaughton rule. This is a rule which dates from 18 43 in England when a man who was very delusional attempted to assassinate Sir Robert Peel, the prime Minister, and in his attempt killed the prime Minister Secretary because he believed he had a paranoid, delusional belief about the prime minister trying to kill him.

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Daniel McNaughton was found not guilty by reason of insanity because he was believed to have had a mental disease or defect that made it impossible for him to know the difference between right and wrong. This is the so called cognitive test, and that's the test that exists in Florida.

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A cognitive test, knowing the difference between right and wrong. All right. Is there any way really to do prove that the defendant knows the difference between right and wrong or knew it at the time of the commission of a crime. Well, my view is that, first of all, to prove what the person's state of mind was at the time of the crime period is very difficult.

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Secondly, to prove that the person has a mental disease or defect that then caused the person to not know the difference between right or wrong compounds impossibility upon impossibility. And therefore, I think it's only our fantasies about whether or not a person meets even that test.

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Well, you see, my question is provoked by my knowledge that there are many people who are normal and sane but who nonetheless seem to be Amoral in their behavior act as though they do not know the difference between right and wrong. Well, I think that that the test that we have as to whether people know the difference between right and wrong is a common sense test, that it's not something that really requires medical testimony.

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It requires facts. We need to know what people say, what people do and what they think, and that's how we know whether people know the difference between right and wrong. Also based on my experience in working at UCLA in the Neuropsychiatric Institute Psychiatric Hospital and the Veterans Psychiatric Hospital in Los Angeles.

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It's clear to me that many people who have clearly diagnosable mental disorders nevertheless definitely know the difference between right and wrong, may also be able to control their conduct. And indeed, most of them do now under the federal law. Hinckley was declared not guilty by reason of insanity.

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What about the suggestion put forward by many after that trial that we should have another category guilty but insane or guilty and insane? In my book, I take the position that that verdict makes much more logical sense than the insanity plea. Because if someone has done the act in question and they have met the requirements of the law for intention, knowledge or recklessness that qualifies it as some degree of murder, for example or attempted murder, then the person should be found legally guilty.

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If they then want to say that they were, they are insane. Not that they were insane, but they are insane. Then I think that that requires present diagnosis and evaluation, and I wonder if there isn't a subtle difference between guilty on the one hand and blameworthy on the other person may be guilty in the sense that the jury makes a finding of facts that this person actually committed the crime but could decide at the same time.

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However, this person probably is not blameworthy because he is insane. Yes, and I'm I'm comfortable with that distinction. Many people in the law feel that once legal guilt has been imposed upon someone as though it were a tattoo that can't be removed, that that also carries with it blame worthiness.

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I'm much more comfortable with the idea of legal guilt as being something where we say our society cannot tolerate this type of behavior. We forbid people to act in this way, and when they do, we are going to say, You can't do that. You are going to be held accountable held to answer for your conduct blameworthy and this requires something more.

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Do you expect to see a change in the federal law as a result of the the criticisms? My fear is that what will happen in the federal law as well as many of the states, is that we will tinker fiddle around with the law changed the test.

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Spend a lot of time quibbling about details, even though psychologically and morally I am favorably inclined toward recognizing the insanity plea. As a practical matter, I think it would be better to abolish the insanity plea, eliminate psychiatric testimony in the guilt phase of a trial and take seriously our responsibility to both offer treatment to those who need it and to protect society in the process.

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That would call for abolishing the insanity plea, but to admit guilty but mentally ill as a legitimate plea that could be entered but not guilty but mentally ill at the time of the crime. Guilty but now mentally ill I understand now. John Hinckley presently is incarcerated in ST Elizabeth's Hospital in Washington, D.

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C. Do you expect that he will ever walk the streets again? It's too soon to tell John Hinckley, because of his notoriety, is less likely to be released right away. But I have to point out that at the same time that Hinckley was found guilty not guilty by reason of insanity and sent to ST Elizabeth, a man who had killed and raped people in Washington was released from ST Elizabeths on the grounds that he was no longer dangerous.

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The problem is that the criterion for keeping Hinckley insane Elizabeth is whether he is presently dangerous. And given the effectiveness of psychotropic drugs and other forms of therapy available, it's quite possible that he will not be dangerous. It's quite possible that he's not dangerous now, but because of the political and psychological pressures, nobody wants to be the responsible party for releasing them.

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But it must be pointed out that he is eligible for release within 50 days of his. Uh huh. But his attorneys made the decision not to press for that release. I understand, but those are his attorneys. At the moment, he can get new attorneys, and new attorneys can continue to press depending on his response to the treatment that's provided for him.

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Bill, Thank you very much for being with me. Dr. William J. Winslade of the University of California, Los Angeles. Philosopher, attorney, research, psychoanalyst and author of a forthcoming book, The Insanity Plea. Thanks for being with me on conversation. Thanks. Yeah, yeah,