Not Guilty by Reason of Insanity – Part One

Not Guilty by Reason of Insanity A Victory Today but A Long-Term Loss Tomorrow

As a criminal defense attorney in Vancouver (Clark County) Washington one of my primary responsibilities when defending an individual is to evaluate the alleged evidence and determine if there are any defenses that may apply to a case, beyond of course general denial.  Insanity rarely comes into play but occasionally does present itself as a viable option.   However, the circumstances of your individual case may result in being “unsuccessful” from a long-term perspective. In this multi-part article, I will describe the law on insanity in Washington, and what the law requires if someone is found Not Guilty by Reason of Insanity (NGRI).

Under Washington law, “[i]nsanity is a defense which the defendant must establish by a preponderance of the evidence.” See RCW 10.77.030(2). Further, under RCW 9A.12.010 :

To establish the defense of insanity, it must be shown that:

(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:

(a) The defendant was unable to perceive the nature and quality of the act with which he or she is charged; or

(b) The defendant was unable to tell right from wrong with reference to the particular act charged.

(2) The defense of insanity must be established by a preponderance of the evidence.

To be able to bring this defense, you must have a qualified psychologist or psychiatrist who can opine on the defendant’s mental state at the time of the alleged criminal act. Now if your expert can testify based on his or her review of the evidence that at the time of the commission of the offense, as a result of mental disease or defect, the mind of the person was affected to such an extent that either he or she was unable to perceive the nature and quality of the act with which he or she is charged; or he or she was unable to tell right from wrong with reference to the particular act charged then you may have a successful defense.

Now for a defendant facing a significant sentence (10-20 years), a viable insanity defense may be the difference between spending the rest of his or her adult life in prison and being acquitted of a very serious crime and “potentially” being free. I say “potentially” because if someone is actually found or stipulated by the State and Defense as Not Guilty by Reason of Insanity (and sometimes both sides do so stipulate) then the next question is whether or not they will be outright released, conditionally released or committed to a psychiatric facility for treatment.  Said another way, even if you win the criminal trial you may face significant detention in a State facility for a lengthy period of time that could stretch into the rest of your life, in the worst case scenario.

Specifically, under 10.77.110. Acquittal of crime: 

• “(1) If a defendant is acquitted of a crime by reason of insanity, and it is found that he or she is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall direct the defendant’s release.”  What this means simply is that if the person may be let go and is free to resume his or her life if he or she meets the aforementioned criteria. 
•  “[However] [i]f it is found that such defendant is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions, the court shall order his or her hospitalization, or any appropriate alternative treatment less restrictive than detention in a state mental hospital, pursuant to the terms of this chapter. “  What this means is that the Court must order that the person be “treated” in a state mental hospital.  What people don’t realize is that someone could be “hospitalized” far longer than they ever would have been if they had waived this defense.
• “(2) If the defendant has been found not guilty by reason of insanity and a substantial danger or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, so as to require treatment then the secretary shall immediately cause the defendant to be evaluated to ascertain if the defendant is developmentally disabled. When appropriate, and subject to available funds, the defendant may be committed to a program specifically reserved for the treatment and training of developmentally disabled persons. A person so committed shall receive habilitation services according to an individualized service plan specifically developed to treat the behavior which was the subject of the criminal proceedings. The treatment program shall be administered by developmental disabilities professionals and others trained specifically in the needs of developmentally disabled persons. The treatment program shall provide physical security to a degree consistent with the finding that the defendant is dangerous and may incorporate varying conditions of security and alternative sites when the dangerousness of any particular defendant makes this necessary. The department may limit admissions to this specialized program in order to ensure that expenditures for services do not exceed amounts appropriated by the legislature and allocated by the department for such services. The department may establish admission priorities in the event that the number of eligible persons exceeds the limits set by the department.”
• “(3) If it is found that such defendant is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security, but that he or she is in need of control by the court or other persons or institutions, the court shall direct the defendant’s conditional release.  What this means is that the defendant is released subject to the court’s requirements, such as treatment and other appropriate conditions”

In Part II, I will discuss how the Psychiatric Hospitals deal with evaluating and treating and working with those found NGRI.