By Manny Frishberg, JTNews Correspondent
“He’s crazy!”
“Meshugena!”
“You must be out of your mind!”
People make statements like this all the time without really meaning them — or thinking about what they mean. So it is understandable that when someone hears a report of a senseless or particularly heinous crime to think that whoever did such a thing must be truly insane. Many people had that response when a gunman forced his way into the offices of the Jewish Federation of Greater Seattle over two years ago and shot six people, one of them fatally.
Naveed Haq, the admitted shooter, had been under psychiatric care for some time and, at the time he committed his crime, was reportedly “off his meds.” That does not necessarily mean, however, that he was legally insane, at least according to Washington law — a point the jury could not agree on at his first trial. So what does the law say about insanity as a defense in a criminal trial? Who pleads not guilty by reason of insanity (NGRI in lawyer’s shorthand) and what becomes of those who do? And what does Jewish law have to teach on the subject?
Those questions are particularly relevant to members of the Seattle Jewish community as the state prepares to retry Haq on murder and attempted murder charges next year. And they were on the minds of a room full of attorneys (and a few judges) attending the Jewish Federation of Greater Seattle’s Cardozo Society’s Continuing Legal Education program “The Insanity Defense: Ethical Implications and Community Impact” on Dec. 8.
To try to answer, the group assembled a panel of learned men familiar with insanity and the law: Attorneys Phillip H. Ginsberg, Avi Lipman and Irwin H. Schwartz, Rabbi Yechezkel Kornfeld, and University of Washington professor Dr. Fred Wise.
The claim of not being held guilty of a crime because the perpetrator is unable to tell right from wrong, or was so delusional that the crime seemed like the right thing to do, dates back to 19th-century Britain where a man named M’Naghten, who had attempted to assassinate the prime minister, was found to have been “unable to appreciate the nature and quality of the wrongfulness of his acts.” Because that formulation is so restricted, the possibility that a perpetrator could appreciate his actions but was still unable to control them was added later.
“Somebody believes the aliens are coming to get them — they’ve got their aluminum hat on, they’ve got the music turned up really loud trying to drown out the voices,” said Fred Wise, a professor of psychiatry from the UW, as an example. “This guy is convinced the police are disguised aliens and he shoots them. He is not really appreciating what he’s doing — it’s colored or distorted by his delusional thought process.”
Washington is one of about 15 states that use a form of the M’Naghten Rule, as it is known, one of the more restrictive definitions of legal insanity. It is also the version of the rule used in federal court cases in the aftermath of John Hinckley, Jr.‘s attempted assassination of then-President Ronald Reagan, and his successful use of an insanity plea.
A less restricted defense claim, called “diminished capacity” holds that a person’s mental problems leave him or her unable to form the “intent” to commit a crime.
Wise, who also heads the Dept. of Involuntary Treatment Evaluation Services at Harborview Hospital, went over some of the statistics related to its use.
Cases in which the insanity defense comes up get a lot more media attention because it is unusual and dramatic, which gives the public an impression that it widely used. But, according to statistics provided throughout the evening session, fewer than 1 percent of criminal cases involve an insanity plea and it only succeeds in 26 percent of cases where it is raised. In addition, 90 percent of defendants found NGRI had a previously diagnosed mental illness. Wise, who has consulted in over 1,500 criminal cases during the past 25 years, said that in almost all cases the prosecution agreed with the defense on the insanity plea.
But, he added, being found not guilty by reason of insanity is anything but a “get out of jail free” card. The defendant is committed to a state mental hospital for an indeterminate period of time, and most who eventually are released remain under some form of court-ordered supervision for the rest of their lives.
Rabbi Kornfeld of Chabad-Lubavitch of Greater Seattle spoke about the concept of insanity and guilt in Jewish law and tradition. The subject of insane persons, he said, is never mentioned in the Tanach “but the Talmud is filled with it.” In Jewish law, a shota is someone deemed not to be responsible for his or her actions. As a result, that person is disqualified from all legal proceedings, as either a defendant or a witness, and exempt from all mitzvot. Shotas are also not subject to punishment for their behavior, he said, since they are not responsible for their actions.
“Punishment is for deterrence and repentance,” Rabbi Kornfeld said. “Punishing someone who cannot rationalize their actions,” in other words, who cannot look rationally at what he done, serves no purpose because he is incapable of repenting, and the punishment would not stop them from doing the same thing again. That point, he said, was made repeatedly by Maimonides in his writings.
More than one of the panelists pointed to that as an example of public outrage following a high-profile case leading to a tightening of the law regarding legal insanity. It was a concern they shared in the event Haq is found not guilty by reason of insanity when he is retried.
Some of the lawyers in attendance brought up the question of whether there should be a different verdict — guilty, but insane. The attorneys on the panel argued that this defeated the point of an insanity defense. According to Wise, lawyers he has worked with in Montana, one of a handful of states that have gone that route, have told him that defense would be a last course of action, since the defendant would be committed to a mental hospital and, if he or she improves enough to be judged sane, then transferred to a state prison to serve the remainder of his or her time.