Arkansas’s insanity defense (Ark. Code. Ann. 5-2-312) has two prongs. A person can claim that he was (1) unable to conform his conduct to the requirements of law due to a mental disease or defect, or (2) unable to appreciate the criminality of his conduct because of his mental disease or defect. Not every mental illness will qualify for the insanity defense. In fact, most will not.

“Not guilty by reason of insanity” is a wholly separate issue from the mentally incompetent defendant who is medicated to the point that he is able to stand trial and participate in his defense in the first place. Likewise, the state is supposed to medicate insane death row inmates so they can appreciate why they are being killed by the government.

The prosecution gets to pay for the psychiatrist, and it only pays for one – generally, the same one who regularly testifies in cases where the insanity defense is raised.

While everyone has a right to counsel under the constitution, everyone does not have a right to independent expert testimony. That’s reserved for the wealthy or the defendants who have a dedicated, persuasive lawyer.

We can generally guess what a psychiatrist called regularly as a witness by the state and paid regularly by the state is most likely to report. Even the most professional and unbiased experts in such a situation will be tainted by the appearance of impropriety.  Consider the correlation: police officers who know exactly how to phrase their testimony so that the facts – whether or not the officer actually witnessed them – appear most damning. It happens this was in child abuse and neglect cases, too. Case workers are taught to phrase their testimony so that the parent appears in the worst possible light, regardless of actual facts.

If he’s wealthy or lucky, the defendant will be able to find the funds to pay for another mental evaluation – if he’s capable of cooperating with such an evaluation and capable of realizing that a second opinion would be in his best interest. Sometimes – again if the defendant is lucky – a judge will agree to allow state funds to pay for that second expert opinion. IF the judge permits a second expert, the defendant’s funds are limited. The state’s funds, on the other hand, are not. This is yet another situation where poverty means a fair trial may be out of the reach of the ordinary criminal defendant.

American law treats insanity as though it’s an either/or condition. If the defendant was insane at the time the act was committed, he is supposed to be found not guilty and sent to a mental institution. He can only get out by proving he is no longer a danger to anyone.

(Of course, when a person who is acquitted by reason of insanity gets out of the mental institution, his mental health treatment is controlled by the tender mercies of the insurance companies unless he qualifies for Medicaid.) To be acquitted, his insanity has to prevent the defendant from being able to appreciate the criminal nature of his conduct.

Since someone who is psychotic or delusional may have believed that he needed to kill or seriously injure another person, this measure of culpability falls short of what it needs to be. The notion of “personal responsibility’ gets triggered. If the defendant knew he was killing or injuring someone, no matter how his delusion played into his decision to act, he is considered capable of forming “culpable intent.”

In Clark v. Arizona (2006), the U.S. Supreme Court addressed this issue to the great detriment of the mentally ill. The bottom line was that the paranoid schizophrenic who shot a police officer was held criminally responsible, and was not allowed to submit evidence of his overall mental state. This defendant in that case believed that aliens had taken over his town. He shot an alien that turned out to be a police officer, but since he knew shooting a REAL police officer was wrong, he got a 70 year prison sentence instead of mental health treatment.

And we call that justice.

The United States has a habit of incarcerating the mentally ill. The reasons for this are complex, but boil down to a lack of understanding in the population at large combined with a serious lack of mental health care for many people who need it.

My family is typical. I have mental illness in my family, and despite the love other family members have for the person afflicted, they don’t educate themselves about depression, bipolar, delusions, or psychosis. They consider the mentally ill person’s actions to be a matter of personal responsibility.

This attitude is not unique to my family. It is the norm, not the exception. We are all responsible for our own actions, right? And if we can appreciate the fact that X conduct is criminal, but we engage in that conduct (no matter how our psychosis or delusions may have convinced us that such conduct was necessary), then we should be punished for it – right?

Someone who is actively experiencing psychosis is not responding to the stimuli the rest of the world responds to. Sure, there’s the normal stimuli, but because of the psychosis the person’s judgment is severely impaired, and he may well be experiencing more stimulation than a person who is not psychotic. Now let’s add delusional thinking to the mix. Not only is he responding psychotically to his environment, he can’t interpret what he sees appropriately.

Delusions can be mild and relatively harmless, or they can be severe and pervasive to the point that they control everything the mentally ill person says or does, including his personal interactions and his crisis response. (Delusion and psychosis are not the only severely crippling mental conditions.)

It’s not always apparent that someone is psychotic or delusional. The person may be able to carry on a reasonably coherent conversation, dress himself, drive a car, go out in public. One wrong response to his environment may be laughed off as “quirky” or “nutty,” people witnessing it may roll their eyes or cross the street to get away from him. But a series of wrong responses to his surroundings may result in disaster for him and for everyone around him. The time between that first wrong response and that series of wrong responses may be a disastrously short crescendo.

Now, couple the “personal responsibility” attitude of the ignorant general public with someone who appears to be rational but is actually psychotic and/or delusional. “He was just fine a moment ago” is something we hear a lot, but that is not true in the case of someone suffering from severe mental illness. He may have appeared to be just fine, but in fact his brain wasn’t working any better a moment ago than it was when he made that mistake in responding to something that happened.

When the mistake that results in harm to someone else, American society’s response is to take revenge. That’s what our prison system is – a system of revenge, not of correction or rehabilitation. There is no more mental health treatment in prison than there is in the public at large – in fact, there may be less. A series of lawsuits 40 years ago closed most of the mental institutions in this country, and insurance companies won’t pay for long-term in-patient care for the most part. Historically, very few insurance policies have paid for treatment of mental illnesses. Unless they qualify for Medicaid, patients’ families often must pay out of pocket or their loved ones go untreated.

Consider this: prior to the Affordable Care Act, most health insurance policies did not cover mental health at all. Anyone with one of those policies not covering mental health treatment had to pay out of pocket or get assistance from Medicaid if they had a mental illness, even if it was situational depression.

What treatment insurance companies were willing to pay for was laughably inadequate. Even now, insurance companies may approve a series of ten visits to a therapist, but a prescription and ten visits to a mental health counselor aren’t going to “cure” mental illness.

That’s because mental illness is not an infection – it’s a chronic condition. Even under the Affordable Care Act, insurance companies are still in the driver’s seat when it comes to mental health treatment. That means a for-profit corporation is making the decision of whether or not to pay these bills. Which leads me to my next rant in favor of a single-payer system…