John Hinckley, Jr. and the Rule of Law

Today the airwaves are ablaze with news that John Hinckley, Jr. — would-be assassin of President Reagan — will be released from a mental institution to live with his elderly mother. United States District Judge Paul L. Friedman's order permitting this release comes more than 35 years after Hinckley's bloody assault, which wounded President Reagan, gravely and permanently disabled his press secretary James Brady, and injured a police officer and a secret service agent.

People are outraged. Why wouldn't they be? Assassinations have cast a grim pall over American history. President Reagan was well-liked and is nearly revered in retrospect. The assassination attempt was a formative event in the memory of many people my age. How, people ask, can you shoot four people, one of them a President, and ever see the light of day again? If any act requires permanent confinement, isn't it this one?

The answer should comfort us, not terrify us: the rule of law applies to everyone, even the notorious. (Edited to add: or, at least, it ought to.)

Hinckley was not convicted of the attempted murder of President Reagan — a jury found him not guilty by reason of insanity. Criminal defense lawyers will tell you that it is exceptionally difficult to convince a jury to reach such a verdict. In (another) era of great anxiety of crime, in a case involving a popular President, the odds were weighed even more heavily against Hinckley. If you think that it's outrageous that someone who tries to kill the President could use the insanity defense, bear in mind that the defense has its roots in cases of mentally ill people attempting assassinations. Nevertheless, public outrage led to nationwide narrowing of the defense, notwithstanding the fact that it was rarely used and even more rarely successful.

Now, after 35 years of confinement (with gradually increasing exceptions) in a mental institution, the court has found that Hinckley is suitable for release under the provisions of the relevant laws governing patients committed to institutions after such verdicts:

(e) . . . . The court shall weigh the evidence and, if the court finds that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others, the court shall order such person unconditionally released from further confinement in said hospital.

It was not a casual decision. Judge Friedman's order is 103 pages long, and builds on a history of other long orders. The order meticulously reviews the testimony at an evidentiary hearing, the unanimous conclusions of multiple doctors (including the government's own experts) regarding Hinckley's mental state and lack of dangerousness, and the history of his gradually increasing liberties granted by the hospital and the court. In addition, the court sets rather rigorous limitations on Hinckley's freedom, considerably in excess of what one would normally see for a convict released on parole or supervised release — for instance, the court limits Hinckley's access to the internet and ability to communicate with the public to head off the sort of attention-seeking and grandiosity that was part of his delusional structure (see page 99-100 of the order).

Perhaps you find Hinckley's release outrageous. If so, ask yourself why. Is the outrageous part that there's a defense of not guilty by reason of insanity? Is the outrageous part that a jury found it applied, in a case where everyone agreed that Hinckley was crazy, and only disagreed about whether he was responsible? Is the outrageous part that such people can be released after 35 years under strict conditions if doctors agree they are in remission and not dangerous? Is the outrageous part that a judge found that the facts here warranted such a release? Or is the outrageous part that some crimes are so notorious that you think they should be outside the rules, outside the rule of law?

Is John Hinckley, Jr. dangerous to society? Doctors don't think so after 35 years, and he's successfully completed many outside visits and excursions to date. Is it dangerous to have a legal norm that the gravely mentally ill who commit violence may eventually be released? I doubt 35 years of forced treatment and confinement is the sort of lenity that leads anyone to violence. What about exceptions to the rule of law? If we ignore the rules and evidence because a particular person is sufficiently notorious, because of our gut, how dangerous is that?

Last 5 posts by Ken White

Comments

  1. Argentina Orange says

    the rule of law applies to everyone, even the notorious.

    HRC and every prosecutor in existence laughs at you.

  2. Lokiwi says

    Ken, do you have any guess at how long of a sentence Hinckley would have received had he been found guilty in the first place? I'm under the impression that "not guilty by reason of insanity" usually ends up with longer confinement than "guilty," and 35 years seems longer than a typical attempted murder charge.

    Then again it was attempted murder of a President and I have no idea how long the federal weapons charges could have been. Either way, this seems like a cautious and well considered order. No reason for outrage.

  3. tweell says

    This rule of law you speak of may have existed at one time, but it is obvious that any rule of law is enforced only upon the weak and powerless, not the strong. Since this was an offense against the strong, why would the rule of law apply… Oh. Republican president. Right. Carry on!

  4. whheydt says

    I'm not outraged. I just hope that, for their own sake, the doctors are correct because if they aren't the backlash against them is likely to be pretty severe.

  5. En Passant says

    Ken wrote:

    If we ignore the rules and evidence because a particular person is sufficiently notorious, because of our gut, how dangerous is that?

    Ezra Pound, another notorious St. Elizabeth's alumnus who was charged with the capital crime of treason (among other crimes), spent only 13 or so years there. Pound was released with far fewer restrictions on his movement than Hinckley, and spent the rest of his days in Europe.

    Exacerbating the circumstances surrounding Pound's release was that while confined in St. Elizabeth's he had also struck up friendships with rabid antisemites and klansmen Eustace Mullins and John Kasper, and others who were apparently hoping to receive marching orders.

    Nevertheless, Pound spent much less time there than Hinckley.

  6. David C says

    @Lolwiki:

    According to federal law (18 U.S. Code § 1751 – Presidential and Presidential staff assassination, kidnapping, and assault; penalties):

    "(c) Whoever attempts to kill or kidnap any individual designated in subsection (a) of this section shall be punished by imprisonment for any term of years or for life."

    According to the federal sentencing guidelines, "Assault with Intent to Commit Murder" has a base offense level of 33, with 4 levels added if "the victim sustained permanent or life-threatening bodily injury". Also, "If the offense created a substantial risk of death or serious bodily injury to more than one person, an upward departure may be warranted." Another 6 levels are added because the victim was a government official. That takes us up to offense level 43, which is life in prison even with no criminal record, and we haven't even dealt with the multiple counts yet. I'd say he'd get life. (Of course, I have no legal training and could be wrong.)

  7. says

    The case was before the Sentencing Guidelines. I would have expected a life sentence. Don't recall then whether there was a sentence that amounted to LWOP. Suspect the Parole Commission would have been slower to let him out.

  8. says

    I think there's a key point here when you start talking about public outrage.

    To the general public, "crazy as f**k" isn't a temporary condition. It never goes away. If you're crazy enough to try to assassinate someone at 25, you're still just as crazy at 55.

    So the doctors say that he's not a danger to society, but the general public just won't buy it.

  9. says

    I've heard that, since Brady eventually died due to complications caused by the shooting, Hinckley could hypothetically be charged with that murder.

    Thoughts on this? I'm guessing the likelihood that anyone will actually have any interest in prosecuting it are low even with Hinckley being released, and it seems like if he was already found not guilty by reason of insanity for the attempted murder, then he's still not guilty by reason of insanity even if it's "upgraded" to actual murder.

    That hypothetical aside: if the doctors believe Hinckley is no longer a danger, then I defer to their judgement.

  10. Steve says

    Thad, I'd heard that too and was never comfortable with the idea that a an effect separated from its cause by so much time could be legally meaningful.

  11. En Passant says

    Thad says July 27, 2016 at 10:27 am:

    I've heard that, since Brady eventually died due to complications caused by the shooting, Hinckley could hypothetically be charged with that murder.

    Thoughts on this?

    At common law, a death could not be attributed to acts that occurred more than a year and a day before the death.

    That rule was in effect when Hinckley attempted to kill Reagan and grievously injured Brady. The year and a day rule in effect at the time of the crime, and the rule against ex post facto laws are one reason why Hinckley could not be charged with murder of Brady 34 years after Hinckley's criminal act, even though Hinckley's bullets may have caused Brady's death.

    The year and a day rule has been changed in many USA jurisdictions. The newer rules vary. Some extend the length of time. Some created rebuttable presumptions of causality. Some do both.

  12. Tarrou says

    I'm fine with the insanity defense, but it's ludicrous that it is in lieu of prison time. I get that prison isn't the best place to treat the mentally ill. But they still committed a crime. Send him to the mental hospital, by all means, and if he's ever "cured", then he can start his prison term.

  13. Jay says

    I think people don't like the idea of being not guilty by reason of insanity. When we're rational, we'll say yes, Hinckley was legitimately insane, and shouldn't be punished for his actions, but on a more intuitive level, we just don't understand what that means. Most of us are not insane, at least in a legal sense. I have a very hard time imagining his mindset that he'd think it wasn't wrong to shoot the president.

    I actually have a lot easier time comprehending more normal reasons to shoot someone, especially a political assassination. It's a lot easier for me to say "well, I thought McKinley was an ass too, but I didn't decide to go and shoot him and you did, so you're guilty of a crime and should go to prison".

  14. Jay says

    I think people don't like the idea of being not guilty by reason of insanity. When we're rational, we'll say yes, Hinckley was legitimately insane, and shouldn't be punished for his actions, but on a more intuitive level, we just don't understand what that means. Most of us are not insane, at least in a legal sense. I have a very hard time imagining his mindset that he'd think it wasn't wrong to shoot the president.

    I actually have a lot easier time comprehending more normal reasons to shoot someone, especially a political assassination. It's a lot easier for me to say "well, I thought McKinley was an ass too, but I didn't decide to go and shoot him and you did, so you're guilty of a crime and should go to prison".

  15. Bosco says

    I'm fine with the insanity defense, but it's ludicrous that it is in lieu of prison time."

    He was found not guilty. Why would he serve prison time?

    Also, Jerry Brown's decision on Leslie Van Houten is cowardly and wrong.

  16. Jackson Marten says

    The first hypothetical is probably the correct one: people are not comfortable with the insanity defense in a legal structure, especially because there exists the factually true argument of "Well, it's not like they identified him as insane and prevented him from shooting a president the first time, so what should convince us they won't just screw it up again?" that can come from the peanut gallery.

    That is not to say I agree, but it is easy to see why a system that failed to detect the issue once would not then be trusted to monitor the issue effectively after the fact by the general public.

    So to that end, Ken, I think you overstate your case – if the public has a (justifiable, according to this blog) distrust of authorities and their use of power in the legal system, if we've already seen a concrete example of that distrusted system screwing up, what's the basis for trusting it the second time? As in, if someone made this argument to you, do you have a legitimate counter on a systemic basis, or are you just sympathetic to JH in particular?

  17. Dudefella says

    I'm fine with the insanity defense, but it's ludicrous that it is in lieu of prison time. I get that prison isn't the best place to treat the mentally ill. But they still committed a crime. Send him to the mental hospital, by all means, and if he's ever "cured", then he can start his prison term.

    No, that's the point. The insane person literally did not commit a crime. At common law, most (maybe all, it's been a long time since I took crim law) crimes had two parts, the bad act and the guilty mind. Someone who is legally insane cannot form the mental state required to be found guilty, because they lack the capacity either to understand what they are doing, or to understand why that act is wrong.

  18. AH says

    @Dudefella:

    While you are correct, what we are discussing here isn't so much the law, but why the public seems to have a problem with it. People seem to have, at least to some degree, a problem with the concept that a crime isn't a crime if a person couldn't understand that it was wrong. I don't think that people have so much of a problem with insanity being a mitigating factor, but they do seem to have a problem with it seeming like a get-out-of-jail-free-card.

    I think what people want is "guilty with insanity as a mitigating factor" rather than "not guilty by reason of insanity." I don't know if that's right or wrong, but I think many people have a problem with the concept that someone has no culpability for their actions. I think it's likely because people don't think it's fair to have his victims be the only ones who pay for his actions.

    (I specifically choose the word "fair" because life's not fair. Unfortunately sometimes there isn't a way to make it so.)

  19. says

    @Dudefella and @AH,

    That's the point I have… People can understand putting someone in a mental hospital rather than federal pound-me-in-the-a$$ prison if they are legitimately insane and completely incapable of understanding that the actions they were taking were wrong.

    I honestly don't think people see it as a "get out of jail free card" so much as a "well it might be cruel to put you in jail but you need to be locked up somewhere" defense.

    But honestly, where the general public has a disconnect is that John Hinckley at one point in his life didn't know it was wrong to shoot the President. Perhaps that means he's not culpable for his actions in a legal sense, but they have a REALLY HARD time with the idea that suddenly he now understands basic facts like "killing people is wrong" if he didn't understand it before.

    The general public doesn't believe there's a cure for that level of dissociation with reality.

  20. Richard says

    The general public doesn't believe there's a cure for that level of dissociation with reality.

    Those of us watching Trump get closer and closer to getting elected are sure hoping there is.

  21. Noscitur a sociis says

    Is the outrageous part that there's a defense of not guilty by reason of insanity? Is the outrageous part that a jury found it applied, in a case where everyone agreed that Hinckley was crazy, and only disagreed about whether he was responsible?

    This. The insanity defense at the time was too generous, but even then the jury got it wrong.

  22. says

    Dodging the question whether there should be an insanity defense, I am more upset about what Hinkley did to Jim Brady than about what he did to Reagan. Reagan recovered to live out a normal and successful life, while Brady did not, as was obvious in his TV appearances. Maiming someone so they lose their mental capacity should be treated as equivalent to homicide.

  23. Noscitur a sociis says

    The year and a day rule in effect at the time of the crime, and the rule against ex post facto laws are one reason why Hinckley could not be charged with murder of Brady 34 years after Hinckley's criminal act, even though Hinckley's bullets may have caused Brady's death.

    Incorrect as far as the ex post facto issue. See Rogers v. Tennessee, 532 U.S. 451 (2001).

  24. PsychSkeptic says

    I am not a psych professional. I have only some experience with a bipolar family member and vague memories of other insane people pronounced cured and released who later committed another heinous crime.

    The key to me is how reliable the current state of the art in psychiatry is. Even though they are experts in the area, and they all say he is no danger, questions arise. Why do they believe he is cured, and what is their track record. Are they wrong 10% of the time? More? Less? What did they learn from their mistakes? Do they learn from their mistakes? Or do they assume a certain error rate is baked in the cake and you can't win 'em all?

    When my brother was 17, his bipolar disorder began affecting his life. He went from a lifetime of straight A's to straight F's in college. His paranoia increased steadily. Finally, our parents sent him to a psych professional (psychologist). After some months of sessions, the pro diagnosed him with "situational transient neurosis" that was now over and done with, and wrote an evaluation that allowed my brother to join the navy. As I drove him home from that appointment, he chortled how he had pulled one over on the pro, waving the evaluation paper in my face. I feared he would not last long in the service, given his penchant for mouthing off, insulting everyone, and general paranoia. But I was wrong. He served on a nuclear sub for his entire 6 years of regular duty without incident, and was honorably discharged at the end of his enlistment period. He then proceeded to mentally break down to the point where he was grazing on hands and knees on his front lawn, screaming at people randomly, and finally, arrested for screaming at a church in the middle of the night. My parents crossed the country and took custody of him, committing him involuntarily for the first of many times in a veterans hospital. He grew to hate them and all his siblings with a passion that defies understanding, and which continues to this day. He's 59 and shows no sign of changing. Anyway, what I wondered the most back then was how could he have survived in the navy, but broke down almost immediately upon discharge? The only explanation I ever heard that made any sense was my mother's. She said that he thrived in an involuntary and highly regulated (or regimented) environment like the military, and could not handle the awful uncertainty and responsibility which are inherent in the freedom of civilian life.

    So there are two things that concern me greatly about Hinckley's release.

    1. I accept he can be perfectly sane in the structured, regimented environment of a mental institution. That does not mean he won't backslide once he gets total freedom again. I realize they are trying to ease him in, and watching carefully now. But his knowing they are watching him is part of the regimentation he may need to stay sane. What happens when everyone stops watching is what worries me.

    2. Many years ago I talked to a college friend who had been working in the psych arena for a few years after graduating. Social work involving evaluating released convicts. He said something that really made me worry about releasing murderers. He said for most people who do heinous crimes, once they do it one time, it breaks down their resistance to repeating it, and there is usually no reversing that change. The next murder is easier than the first, or the next rape, etc. He said that the main exception was someone who underwent a conversion experience (usually religious, but not necessarily). Has Hinckley undergone a genuine conversion experience? is he truly horrified at what he did? Or is it more like: I'm not horrified because that was someone else, not the person I am now. It seems to me the former is the kind of person who has re-established the conscience necessary to really be cured, but the latter is just making excuses and is not really reformed. And how can one tell for certain that the newly reformed conscience isn't being faked. 30 years in an institution can teach a clever person how to convincingly fake an awful lot of emotions.

    I have yet to see any psych pro explain exactly what convinces them Hinckley is cured. But even if I were convinced they know their stuff and are probably right, I don't think releasing him is an acceptable risk, since he once demonstrated a willingness to kill, given 1 and 2 above. But if they ever come up with a verifiable cure for his form of mental illness, one based on biochemistry, not psychiatry, count me in on releasing him. Until then, I cannot condone it, in all good conscience.

    P.S. I have always despised Reagan and his whole lie-based right-wing fantasy world, but I cried the day he was shot out of empathy for the man and others hurt that day, especially James Brady. The horror of that day is seared in my brain. The fear that a madman might irretrievably change the world for the worse with a damn gun, ala August 1914, still haunts me. Dreadful memories are the most unshakeable.

  25. Brian Jones says

    I have always felt that there should be no "not guilty by reason of insanity" verdict. I would go for guilty but insane. The difference between guilty and guilty but insane is where the convicted person would spend their sentence – prison vs. mental institution. My attitude is – do the crime, serve the time.

  26. Dictatortot says

    I'd have to agree with limiting the options to "guilty (but insane)." Requital is a perfectly legitimate function of the criminal-justice system; it doesn't do to pretend that in Hinckley's case, and in similar cases, that there was nothing that demanded requital. But that's exactly the message that a "not guilty" verdict (by reason of insanity or not) sends.

  27. Czernobog says

    I'm loving all the "This is a thing I can understand, but I don't think the general public can" arguments.

    You guys are a laugh a minute.

  28. Richard says

    I have always felt that there should be no "not guilty by reason of insanity" verdict. I would go for guilty but insane. The difference between guilty and guilty but insane is where the convicted person would spend their sentence – prison vs. mental institution. My attitude is – do the crime, serve the time.

    So if, to contrive an edge-case scenario, someone has a legitimate mental condition which caused him to think that a human being was a deer, and shot the "deer," you would support jailing/institutionalizing him for the full length of the sentence, despite never actually intending to shoot a human being? Even if he is later "cured" of his condition to the point where he'll never confuse a human being with an deer again?

    It seems needlessly cruel to lock someone up for something that they're not responsible for, especially when they no longer pose a danger to themselves, other people, or society.

  29. jtf says

    This reminds me of the reactions to news that Sirhan Sirhan was released a few years back. Equal treatment under the law means that a crime against a celebrity is treated equally to a crime against a nobody. That's the way it should be.

  30. Dictatortot says

    It seems needlessly cruel to lock someone up for something that they're not responsible for, especially when they no longer pose a danger to themselves, other people, or society.

    In your scenario, I might distinguish between "blame" and "responsibility." Our hypothetical "deer" hunter isn't strictly to blame, but it's not clear that he's utterly without responsibility–someone's dead because of him, and there's no getting around that. And as I said above, requital is one of the law's legitimate functions: whether or not the man still poses a danger is significant, but not the only issue by a long shot.

  31. En Passant says

    Noscitur a sociis says July 27, 2016 at 7:44 pm:

    Incorrect as far as the ex post facto issue.

    You are correct. A jury found Hinckley not guilty by reason of insanity. So he could not be retried for the same act after Brady's death.

  32. staghounds says

    Sirhan Sirhan shot the wrong man, he will die in prison.

    As far as Hinckley and similar releases, the doctors who certify these people as harmless should be personally liable for the injuries they cause. No one can predict such a complex thing.

  33. John Shepard says

    From the late Thomas Szasz:

    'The problem is that whenever a person factually guilty of committing a serious crime pleads insanity, the jury is asked to answer an intrinsically nonsensical question, namely, what “caused” the defendant to commit his wrongful act: his self or his mental illness? If the former, then he is a guilty victimizer. If the latter, then he is an innocent victim (of insanity). I say the question is nonsensical because regardless of whether a person is (deemed to be) sane or insane, he has reasons, not causes, for his action. If we regard the actor’s reasons as absurd or “crazy,” we call him insane or mentally ill. However, that does not prove that an alleged condition (“insanity” or “mental illness”) caused him to commit the forbidden act. In short, the insanity defense combines and conflates two problematic elements about “insanity”: (1) what is “it” (as a phenomenon or disease)? and (2) does it cause and excuse bad behavior?

    'Although no one can define insanity, nearly everyone believes that he can recognize it “when he sees it.” Still, the question remains: What is “it”? In principle, this question ought to be debatable. In practice, it is not: all socially recognized authorities agree that insanity is a brain disease.

    'For the sake of clarifying the issue before us, let us admit that (false) claim. In that case, insanity is similar, say, to Parkinsonism or a stroke, brain diseases diagnosed and treated by neurologists. A brain disease may, indeed, be a cause. But a cause of what? Typically, of a behavioral deficit, such as weakness, blindness, paralysis. No brain disease causes complex, coordinated behaviors, such as the crimes committed by Andrew Goldstein or John Hinckley, Jr.

    'The insane person is, after all, a person, a human being. Only legal tradition and psychiatric-professional self-interest, not facts or logic, compel the law to frame the jury’s task as a choice between deciding whether an insane defendant is bad or mad—guilty (by reason of free will) or not guilty (by reason of insanity). If a “mad killer” is sick, he could—like an HIV-infected killer or a tubercular killer—be imprisoned for his crime and “treated” for his illness in prison.

    'Millions of people are said to be mentally ill or insane. Not all of them commit crimes. Although a mad person such as Mr. Goldstein is regarded as being mad much of the time or even all of the time, he kills only some of the time. When a mad person kills someone—just as when he petitions a court to be released or eats his dinner—he does so because he decides to do so. Hence, if the madman commits a crime, justice demands that we take him seriously and punish him for his deed."

    [Read the rest of this brief essay for an interesting history on the advent of the insanity defense and the problem that it solved.]

    "Does Insanity Cause Crime?" (2000) — Thomas Szasz:

    https://fee.org/articles/does-insanity-cause-crime

  34. josh says

    @qitana

    “Even two years after the murders, when interviewed by a psychologist, Van Houten admitted that, although she had no present desire to kill anyone, she would have no difficulty doing it again,” Brown said in his statement."

    gov. brown isn't even trying to pretend that he has an open mind. two years after the manson murders was 45 years ago.

  35. Trent says

    I believe most of the lock em up or treat their illness positions will fall on whether the speaker believes prison is for punishing people or that prison is to protect society and reform the criminal to be a competent members of society. There is also a large grey area between the two positions where people can accept both scenarios.

    My position falls in the grey area, my state views mental illness defenses as a hold on trial (because the defendant can't assists) for the crime, not giving them a waiver on it. In theory if the person is brought to the point of mental status that they could know what's going on and assist with their defense they could be tried again.

    But IMO there is little reason to bring such charges against someone that was truly "barking at the moon" crazy. Hinckley falls in this category. He was obsessed with Jodi and his goal was to get noticed by her in any way possible. When he found out the president was coming to town his mind clicked on a way to get noticed. In reality he could have ended up doing innumerable horrible things. He was completely out of touch with reality and IMO should not be held responsible for what he did because of his illness.

    As far as being released, if a number of doctors concur that he is no longer insane he should be given structured release. What I mean by that is that he should be monitored by the state, required to attend weekly counseling sessions and should essentially have a parole officer like psychologist that has the ability to recommit him for any reason and this should be in place for the rest of his life. As long as he's taking his meds and remains sane he should be free to pursue whatever he can of a life. With these safeguards in place society should be protected, his sanity won't turn on a dime, it's a slow slide to get back to the state he was in and people will notice long before he commits another act.

    I guess my point is that in cases of true mental illness like this it doesn't serve the interests of society to lock someone up in an expensive hospital (and prison would just make them worse). We should let them out and monitor them. The outside monitoring would still be far cheaper than full incarceration. This of course is predicated on my opinion that someone that commits a terrible crime like this while mentally ill should never truly be free again, in the sense that they can be recommitted at any point if the illness re-exhibits and they should be required to submit to weekly monitoring and possibly even a bracelet or surgically implanted GPS chip.

    On the other hand, I don't believe in a temporary insanity defense. But true insanity, they need help, not prison.

  36. Steve says

    Insanity should be less of an issue when the sentence will be death. Chain of reasoning can be "person did Bad Thing and understood what they were doing, therefore they are morally unfit to live, kill them" or it can be "person did Bad Thing and couldn't understand what they were doing, therefore they are mentally unfit to live, therefore kill them." It's only when the difference would be between incarceration and institutionalization that sanity makes a difference: if the only difference would be that it would be called euthanasia instead of execution, who cares if the actor was or wasn't sane?

  37. Dudefella says

    person did Bad Thing and couldn't understand what they were doing, therefore they are mentally unfit to live, therefore kill them

    You make Buck v. Bell look like a love note.

  38. says

    if the only difference would be that it would be called euthanasia instead of execution

    Pretty sure killing a sick person is only called euthanasia if you receive consent first. Otherwise, it's called something else.

  39. Garrett says

    We already have one category of person who we easily accept aren't responsible for their actions: children.

    I think part of the disconnect here is that the action taken doesn't look like an offense committed by a child. If Hinkley had picked up the shiny thing and shot the first person who walked by, I think we could all get behind the idea of clear lack of responsibility. Likewise if he'd had a mental break on the way home from work and drove his car at maximum speed down the highway until he crashed.

    But careful planning with a motive, even an irrational one, doesn't "feel" like insanity or culpability. From what I can tell, his intention was to result in the death of the President. I guess that we assume that people who are able to think with that level of forethought can't really be insane.

  40. says

    Then again it was attempted murder of a President and I have no idea how long the federal weapons charges could have been. Either way, this seems like a cautious and well considered order. No reason for outrage.

  41. says

    Another thing to keep in mind: The murder attempt could be more like a one-off thing. After all, Hinckley's motivation has long been moot.

    Even if Jodie Foster was on the *ahem* right market, by now I can see a stranger, tops, spitting on the sidewalk once or twice for her.

  42. Leslie Boston says

    Your observation is well-taken although doesn't really address the issue. As far as I can see, the reason people have reacted this way to Hinckley's release is because the Rule of Law is so inconsistently and arbitrarily applied across the country, any sense of proportion or reasonableness by society is virtually gone. I agree with the comment above – the prosecutorial bench is laughing at your reference to "Rule of Law."

  43. Steve says

    Dudefella, Buck v. Bell has always bothered me because it was about sterilizing her. Had it been about killing her instead, I'd be pretty much ok with it (some issue with evidentiary standards is all).

  44. AlphaCentauri says

    I haven't heard any details of Hinckley's psychiatric diagnosis, but people may be over-thinking this. Many types of schizophrenia are progressive dementing disorders, so the manifestations in middle age are much different than in youth. It's quite possible the reason he's not going to be living his life without restrictions is that he's no longer mentally capable of independently handling basic life skills like making purchases with cash or cooking meals using a stove. The doctors might feel confident he won't plot any murders because he can't even plan a local bus trip.

  45. Christopher [Christopher Arntzen] says

    The comment that “…35 years seems longer than a typical attempted murder charge” makes sense when you consider the cases of Sara Jane Moore and Lynette (“Squeaky”) Fromme, both of whom were convicted in federal court of attempting to murder President Gerald Ford and sentenced to life in prison. Both are now on parole. Moore served 32 years and Fromme served 34 years. I am surprised no one has mentioned these cases.

    Fromme and, arguably, Moore were more dangerous than Hinckley–both of them actually broke out of prison during their terms (although they were quickly recaptured in both cases). I don’t recall any significant expressions of outrage when Moore was released in 2007, and I didn’t know until now that Fromme had been released in 2009.

    The Sirhan Sirhan and Leslie Van Houten cases, which some commenters addressed, are not parallel. Both were convicted for murder rather than attempted murder. They were tried in California courts and were originally sentenced to death. Unfortunately for Van Houten, parole in California became politicized when voters approved giving the governor the power to overrule the parole board. I agree with those who argue that Van Houten should have been paroled years ago, but I doubt if anyone seriously thinks that Sirhan could ever be released.

  46. rxc says

    As some of the commenters have said, the state of modern psychiatric medicine/science is a bit uncertain. There is a lot of talk about it being a "science", implying something similar to chemistry or physics, but really what they mean is that it is more akin to "social science" or "political science", or "economic science", which is to say, not scientific at all. Engineers use real scientific information to decide whether something is "safe" or "dangerous", and they are held to a legal standard and can suffer the loss of their freedom, their fortunes and their sacred honor if they err on the wrong side. They therefore tend to be a bit conservative in their assessments.

    I suggest that the insanity defense be kept, but that the "experts" who are called upon to testify that the defendent is "no longer a threat to the public health and safety" be held fully criminally liable for any actions that might be taken by the defendent, should he be released based on their testimony, and commit a new crime. This would give them good reason to consider his state of mind and his threat to the public safety. If he/she does something unsafe after release, then the courts should be able to come after the experts who set him loose, and they would stand in his place to suffer the punishment. In full.

  47. rxc says

    to the commenter who said "We should let them out and monitor them. " I would offer the comment that I recently lost my sister to mental illness. She was fine when she took her medications, but they made her feel all wrong, and she hated them, so she stopped, and periodically had to be re-Baker Acted to get back on the wagon. Unfortunately, the psychiatric professionals were unable to predict that she might get so bad as to throw herself off of a building. This is the third person/family I have personally known where this sort of thing has happened, so for me it shows quite a trend. We need to treat people with mental illness, and until we really understand how the brain works to the point where we can make scientific predictions, we should be much more careful about letting them go. I think that one of the guys who cut the throat of a French priest this past week was allowed to go out of his house with a monitor attached. That was considered sufficient to "monitor him". Something similar would have been really useful to monitor my sister as she plummeted 10 stories from the top of her apt building.

  48. Teemu Leisti says

    Missed speaking at the DNC, by …that much.

    Even if Jodie Foster was on the *ahem* right market, by now I can see a stranger, tops, spitting on the sidewalk once or twice for her.

    Stay classy, guys.

  49. Lagaya1 says

    rxc

    To continue with your thought of accountability, why don't we lock up jurors who fail to convict, and the defendant goes on to commit other crimes. And the prosecutor who failed to do his best. And the defendant's parents for raising him poorly, and his school for not teaching him to be productive.

    Maybe because it's a dumb idea, and you can't hold anyone else accountable for someone else's criminal actions.

  50. D^3 says

    I have not seen this mentioned elsewhere in the same way: Our medicine has dramatically improved over the last 35 years. I've no interest in reading the doctor's testimony and I trust the judge to have done so. So, in reference, even if he could have been released earlier because we found some new treatment that is proven effective (and hat tip to others who have argued what that means), I like to think that we as a society can trust our improvements on this front too.

  51. Matt says

    @Christopher Arntzen

    Mitigating factors, perhaps. Squeaky Fromme and Sara Jane Moore didn't actually hit anyone (Squeaky's gun never even went off). Hinckley hit Brady, the cop, the Secret Service agent, as well as Reagan, Brady obviously was changed forever, and while Reagan recovered, from what I understand, it was somewhat of a close thing in the hospital, as they couldn't spot the bullet still in him for a while, and he was closer to bleeding out (or internally) than anyone would've liked.

  52. Christopher says

    Moore spent 32 years in confinement, Fromme 34, and Hinckley 35; but Hinckley also had significant periods of supervised release. I was not trying to suggest that he was treated more harshly but was just looking for a comparison that appeared obvious to me. The treatment, at least in terms of confinement, was roughly similar in all three cases. I don’t think there was a calculus of relative punishment or mitigating factors here: even many murderers are paroled after significantly less time.

    I really did not, however, adequately address the comment that “…35 years seems longer than a typical attempted murder charge.” It seems that the sentences served in all three cases are two to three times longer than those typically served for first degree attempted murder (which arguably may be too short). Attempted murders of public officials (for which stronger penalties may apply) perhaps should not be compared with other “typical” cases—certainly not in practice, as these cases demonstrate. That brings us back to the role of notoriety and our gut feelings in setting these cases apart.

    There is also the case of Arthur Bremer, who was convicted of attempting to murder George Wallace. He is also on parole, having served 35 years of a 53-year (originally 63-year) sentence in Maryland prisons. Wallace, like Brady, was permanently disabled and suffered great pain the rest of his life. Bremer also hit three others—one in the neck, one in the stomach, and one in the leg. Bremer’s plea of insanity, unlike Hinckley’s, was rejected by the jury.

    Perhaps you could argue that Hinckley’s (and Bremer’s) terms should have been longer than Moore’s and Fromme’s, but none of these four was treated leniently and their times in confinement were roughly similar. This is not Norway, so many of us may think that 30 to 35 years of confinement are not enough even when no one is killed; but evidently that can happen even here while we still give sentences with “the possibility of parole.”

  53. Aaron says

    Here to second Grifter's question about the conditions of the supposedly unconditional release.

  54. DRJlaw says

    @Lagaya1

    Even better, add judges (bail decisions, diversion program sentencing, etc.), parole boards (parole, obviously), and governors/presidents (pardons and clemency). Heck, let's hold judges responsible for imposing any sentence less than the maximum possible sentence.

    Such suggestions are simply a way to threaten the decisionmakers with dire personal consequences so that nobody will be released, despite laws and policies that recognize that there is a need for such releases. So long as the decisions are made reasonably, they can ultimately prove to be incorrect.

    Why have the hard argument that there should not be bail, should not be parole, should not be an end to civil commitment, etc., when it's so much easier to appeal to baser instincts and simply cry "punish the person responsible for letting them out."

  55. Sami says

    I was initially horrified, but I blame bad reporting and the fact that I am 35 years old and therefore wasn't exactly following the news when the shooting happened.

    The thing I read was that he was being released from jail. I exclaimed about it to my housemate. "That guy tried to kill Reagan because he was *literally delusional*. How can he be being released from prison? Isn't that kind of a textbook example of someone who should have been sent to a mental hospital until he was actually no longer going to be a danger to society?"

    Having subsequently learned that, in fact, he was sent to a mental hospital and has been deemed no longer a danger to a society, I'm fine with this.

  56. rxc says

    @Lagaya1 and Drjlaw

    I don't think that the people you mention are comparable to the mental health professionals in this situation. Perhaps judges and perhaps parole boards, but jurors are not professionals at all. Even judges and parole boards are different, because judges can be held accountable for their decisions (there are appeal courts and recall elections, etc), and parole board decisions usually have to be approved by the executive branch (i.e., a governor). (Prosecutors, on the other hand, seem to have no accountability whatsoever, which is something that needs to be addressed.)

    Jurors are not paid for their expertise to make desicions that can affect the public safety. They are drafted into service, most of the time against their wishes, and they are given a set of facts that the legal system permits them to see under a complex set of rules that they do not understand or even appreciate. Parents and teachers are not involved in determining whether a person is a danger to society after a horrendous event has occurred. They see children all the time who have problems, and they try to fix those problems. Neither parents nor teachers are mental health professionals. They can give an opinion about whether they think a child has problems, but they are not qualified to assess the mental health of anyone, and they do not profess to have that qualification. Their opinions are not given the same weight as those of an accredited professional during a hearing in front of a judge.

    The results in these release proceedings are based on the assessments of accredited professionals, just like decisions to build dangerous facilities are based on the opinions of accredited engineers and scientists. These people are supposed to take into account all of the relavent material, even if it might otherwise be considered not admissable in an actual trial. I believe that in these cases, there is little question about whether the accused actually did what he is accused of, and the jury is asked to decide whether the accused should be punished or given over to treatment in a mental health facility. They do not make a decision to let the accused go – he/she is still under the control of the state whatever they decide.

    During these release hearings, however, you have a situation of the "dueling experts" who have all examined the inmate and have prepared their written assessments of his/her condition. The judge makes the ultimate decision, based on these recommendations. In this case, it appears that all the experts agreed that he should be released, so there was no disagreement for the judge to probe.

    My proposal is to hold the mental health professionals accountable for their own professional assessments and judgements. It is their assessment that allows the person in treatment to go free, after the jury decided that he/she was a danger to society and his/her movements in society should be controlled.

  57. William says

    Meh. I was going to look it up but I'm feeling lazy.

    Washington Post, among others, in the past few years, has periodically published articles to the effect that when Hinckley was on supervised release, he had a tendency to violate the conditions of the release, and then lie about it. Things like going to a theater to watch a violent movie and then claiming he had been in a book store the whole time.

  58. andrews says

    Buck v. Bell has always bothered me because it was about sterilizing her.

    Sure, and maybe you would have no problem with general prison or death. But remember, her offense was not being mentally defective: she had good grades in school, before the era of social promotion. Her offense was being inconvenient for a wealthy family.

  59. DRJlaw says

    I don't think that the people you mention are comparable to the mental health professionals in this situation. Perhaps judges and perhaps parole boards, but jurors are not professionals at all.

    And yet they have the essentially unchecked power to set a defendant free by rendering a verdict of not guilty.

    I find your argument that merely being a "professional" should subject one to strict liability for the consequences of a recommendation submitted to a court unconvincing.

    Even judges and parole boards are different, because judges can be held accountable for their decisions (there are appeal courts and recall elections, etc), and parole board decisions usually have to be approved by the executive branch (i.e., a governor).

    Having a judicial decision reversed is in no way comparable to what you propose. Failing to retain a judicial office in an election is also in no way comparable.

    What you seem to miss, despite this being quite prominently reported here, is that the mental health professional's recommendation is evaluated by a judge, and it is the judge who orders partial or complete release and sets release conditions. Quite equivalent to the oversight that you feel is sufficient for judges (appellate review) or parole boards (alleged approval by an executive branch officer; certainly not a process step in my state).

    My proposal is to hold the mental health professionals accountable for their own professional assessments and judgements. It is their assessment that allows the person in treatment to go free, after the jury decided that he/she was a danger to society and his/her movements in society should be controlled.

    No. It's the judge's assessment. And you clearly know that fact. You simply and cynically want to intimidate the sources of information that a judge might use in an adversarial process into being ultraconservative when evaluating someone. The state already has its chance to develop contrary recommendations, most jurisdictions provide avenues for victims to have a say, and the judge that makes the decision is fully capable of evaluating credibility and professional competence for his or her self. The supposed benefits of imposing any liability on the mental health professional, much less strict liability, are duplicative of those provided by the protections already in place, and are far, far outweighed by the harms.

  60. DRJlaw says

    @rxc

    Actually, I'm not in the mood to debate this anymore, so let me simply say this, which should go without saying given that this is Popehat:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    The mental health professional's recommendation to the court is a petition to the government to redress grievances. Good luck with the constitutional amendment that will be required to implement your proposal.

  61. says

    I don't have a problem with punishing an attempted presidential assassination more harshly than another type of attempted murder. But for me, the issue is that we don't have the scientific knowledge to determine that a formerly murderously insane person is no longer a danger. Someone found not guilty for reason of insanity should be put in a more humane place, with treatment, than a prison, but if he killed or shot/attempted to kill people, then he should never get out.

  62. Christopher says

    The reason the verdict in the Hinckley case bothered me—and probably most other people at the time—was because it appeared that “he got away with it.” It turned out he didn’t. As I noted earlier, he was confined for about the same time as other recent attempted assassins (Sara Jane Moore, Lynette Fromme, and Arthur Bremer). He just got to spend his time in a prison that was presumably a little less nasty.

    What is bothering now is not just that the original verdict was wrong, but that it was effectively nullified. The pretense for nullification was that Hinckley was “dangerous” for the following 35 years. Sorry, but I just don’t buy it. Yeah, he got what he deserved—and maybe a way lot less. But, as I thought this topic was designed to address, the legal system is not designed to satisfy my gut feelings.

    Anyway, the loopholes that we are so earnestly debating here were long ago tightened into the hardest of knots. It’s good that the offenses we are discussing were so far in the past. Our excesses next time will be in the opposite direction.

  63. J R in WV says

    I knew, barely, a young girl, my younger brother's age. Attractive, bright white girl, from a family that settled near my home town in the 1800s, pioneer stock.

    She killed a black person walking down Main Street in Home Town, for no reason. She was found not guilty by reason of insanity. Evidently she believed that ALL black people hated her, intended her harm, and that she had to be on guard at all times prepared to defend herself. No cause for this as in a real event.

    So she went to the state mental hospital, was treated by psychiatrists and psychologists with therapy and drugs. Eventually, after not too long, 10 or 15 years, she was released, conditionally, and found herself living in a group home in Virginia. The "house mother" was a black woman. One day in the kitchen, helping with meal prep, Miss Acquaintance picked up a large kitchen knife and killed that nice lady dead.

    Again, with her history, she was found insane. But in Virginia the rules are different. She was found guilty but insane, and was sent to a Virginia mental institution. If she were determined to be cured (not likely given her history) she would be transferred to prison, not released.

    Anecdotally my Grandma and mom lived near the young person's great-grandparents and their children, where they had a gristmill. The patriarch was known to periodically go "mad" and chase the family around outside the house with a weapon, with much screaming, but no bloodshed, late at night. So the family was known for eccentricity. The parents of the young woman were both school teachers, and I had classes with both of them. They seemed quite normal in the classroom.

    But their daughter… very pretty, too. But maybe a little off, even as a little girl when I saw her from time to time.

    All that said, I do believe that people lose their mooring to reality sometimes, and of those, some of them regain a grip, perhaps with medical help, maybe sometimes just with the passage of time. Should these folks be locked up with those still unmoored, forever? I think not, but it's a hard decision for all. I have always thought to be locked up with the insane a punishment worse than death, if one knew the circumstances.

    IANAL, but trying to discuss the ethics and philosophy of the thing. No opinion on Hinckley, really, no knowledge to form an opinion.

  64. Steve says

    @andrews: like I said, quibbles over evidentiary issues. Q1 "Is or isn't this person mentally defective?" isn't the same question as Q2 "Is the state permitted to sterilize people who are mentally defective" or Q3 "Is the state permitted to kill people who are mentally defective?". I'm bothered by "yes" as the answer to Q2 but wouldn't be by "yes" as the answer to Q3. And I think wrongly identifying someone as mentally defective is worse when the consequence is sterilization than when it's killing them.

  65. zippy says

    William, I did read the judge's order, and it was actually the opposite of what you said: he claimed he had gone to see a movie (no mention of whether it was violent) and instead hung out at a Barnes & Noble and drank coffee. This was relevant not because there were a problem with reading a book or drinking coffee, but because he lied.

    Does it change anybody's opinion about his dangerousness that he is going to be followed around by the Secret Service for the rest of his life? Granted, this is a lot of resources to spend on one guy, but they've been following him every time he was out on release, and I'm thinking they will continue that indefinitely.

  66. Dan says

    I've asked this before and no one's ever been able to answer me.

    Why?

    Why is it so important that we not change the law for one person? Isn't there such a thing as an act that we, as a society stand up and say, "no, nope, sorry, this is beyond the rules, this is so far outside the normal stuff our rules were set up for that we're making an exception, right now."

    You can try to write laws that account for every last situation, which leads to the tragedy of the commons, or you can write your laws for 99% of the situations that will exist and then acknowledge sometimes the rules just don't feel, subjectively, to the majority of people, to suffice for that situation.

    It seems silly to me, for example, for all the people that wrung their hands over Hans Brevik saying "well the law says we can't kill him and that's unfortunate because he deserves it"

    It's okay to say "our laws were meant for normal crimes, what you did is so bad we're going to shoot you now."

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