Mental illness is not the insanity defense

Texas asks a jury one very specific question about a defendant’s mind at the moment of the offense, and it is not whether he was mentally ill.

The statute

The Texas insanity defense is actually a fairly short statute. It is an affirmative defense, and it applies only when, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

Three words do most of the work.

Severe is in the statute, and Texas specifically says that “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. So having a psychiatric diagnosis is not enough by itself.

Then there is wrong. Texas courts have interpreted that word to mean legally wrong, rather than morally wrong. The question is whether the defendant knew that society considered the conduct against the law, even if his mental illness caused him to believe the conduct was justified.

A person can be psychotic, can believe he is being commanded to do something, and can genuinely believe that what he is doing is justified, and the insanity defense still fails if he knew the conduct was illegal.

And then there is defense. Insanity is an affirmative defense, which means the defendant has the burden of proving it by a preponderance of the evidence. Texas also does not use the second, “volitional” part of the Model Penal Code test. It is not enough to say that a defendant could not control himself. The statutory question is whether, because of severe mental disease or defect, he did not know his conduct was wrong.

What an insanity acquittal actually does

An acquittal by reason of insanity is not a finding that the defendant did not commit the conduct. The State still has to prove the charged conduct beyond a reasonable doubt. The insanity defense addresses criminal responsibility for that conduct.

And an insanity acquittal is not simply a door back onto the street.

Texas law provides for a commitment and evaluation process following a verdict of not guilty by reason of insanity, followed by a disposition hearing. Depending on the circumstances and the findings made under the statute, the court may order inpatient or outpatient treatment, and certain defendants can be subject to continued criminal commitment with periodic review. The statutory scheme is designed to address both treatment and public safety rather than treating an insanity acquittal as the end of the case.

The thing people get wrong

People assume that a successful insanity defense means the defendant walks out of the courthouse.

There is an unusual rule in Texas that prevents the jury from being told what will happen if it returns a verdict of not guilty by reason of insanity. The statute says:

The court, the attorney representing the state, or the attorney for the defendant may not inform a juror or a prospective juror of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned.

That is article 46C.154. The judge cannot tell them. The prosecutor cannot tell them. The defense lawyer cannot tell them.

So the juror who is thinking, “If I find him not guilty by reason of insanity, what happens to him?” does not get to have that question answered during voir dire or trial.

Where the real work happens

Almost everything useful that mental illness can do in a Texas criminal case happens somewhere other than section 8.01.

Evidence of a mental disease or defect can sometimes be relevant to whether the State has actually proved the mental state required for the offense. That is not the insanity defense. It is an argument that the State has failed to prove an element of the crime beyond a reasonable doubt.

Texas law also requires a magistrate to be notified when credible information is presented that a defendant in custody has a mental illness, and the statute provides for an assessment. There are personal-bond provisions that can apply to certain defendants with mental illness, mental-health treatment can be made a condition of community supervision, and Texas has specialty mental-health courts, including felony mental-health courts in Harris County.

Competency is another question entirely, although the two get confused constantly.

Competency asks whether the defendant is presently able to consult with his lawyer with a reasonable degree of understanding and whether he has a rational and factual understanding of the proceedings against him. Insanity asks what his mental state was at the time of the offense.

One asks about his mind now. The other asks about his mind then.

The takeaway

If someone in your family has a psychiatric history and is in custody, the important records are not something to start gathering when trial is approaching. The diagnoses, hospitalizations, medications, prior treatment, and other mental-health records can matter from the beginning of the case, when the lawyer is still trying to determine what legal questions the evidence actually raises.