At what cost? Insanity defense evaluations for misdemeanor charges

At what cost? Insanity defense evaluations for misdemeanor charges

Evaluations of legal sanity addressing only misdemeanor charges are not rare and appear distinct from sanity evaluations addressing more serious offenses. Misdemeanor charges appear to be associated with higher rates of defendant psychosis and insanity. Thus, results raise questions about the appropriateness of pursuing potentially costly, and resource-intensive, insanity defenses for misdemeanor charges, and whether other forms of mental health diversion may be more appropriate. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.


Featured Article | Law and Human Behavior | 2020, Vol. 4, No. 44, 286-299

The Impact of Misdemeanor Arrests on Forensic Mental Health Services: A State-Wide Review of Virginia Sanity Evaluations


Brett O. Gardner, University of Virginia
Daniel C. Murrie, University of Virginia
Angela N. Torres, Virginia Department of Behavioral Health and Developmental Services


Objective: We examined the prevalence of criminal defendants facing only misdemeanor charges and referred for forensic mental health evaluations of legal sanity (criminal responsibility) in a state-wide sample of sanity reports. We sought to describe this population of defendants, particularly as compared to defendants facing felony charges and referred for evaluation of legal sanity. Hypotheses: We hypothesized that, among those referred for sanity evaluations, defendants facing only misdemeanor charges would have higher rates of serious mental illness than would defendants charged with felonies, as evidenced by their mental status during the evaluation and at the time of alleged offenses. We also hypothesized that defendants charged with only misdemeanors would be more often opined insane, as compared to those charged with felonies. Method: We reviewed a statewide sample of 926 court-ordered sanity evaluation reports in Virginia and coded numerous variables describing the defendants, sanity evaluation process, resulting reports, and legal opinions offered within the reports. Results: Approximately 22.3% of sanity evaluations involved defendants charged only with misdemeanor offenses. Defendants facing only misdemeanor charges were 1.82 times more likely to be opined insane than were defendants facing only felony charges, primarily due to their increased likelihood of experiencing psychotic symptoms at the time of the offense (1.83 times more likely than defendants facing felony charges). Conclusions: The merits of pursuing the insanity defense in response to misdemeanor charges are questionable given the cost- and resource-intensive outcomes associated with insanity acquittals. Diversion strategies may be a more efficient response to those defendants with serious mental illness facing only misdemeanor charges.


forensic assessment, misdemeanor, sanity, not guilty by reason of insanity, criminal responsibility

Summary of the Research

“Persons charged with misdemeanors comprise the majority of individuals who interact with law enforcement and the criminal justice system. Indeed, a recent analysis estimated that 13.2 million misdemeanor offenses are filed in the United States every year, equating to approximately 4,261 misdemeanors filed per 100,000 people. In the last decade, misdemeanors have comprised 74 to 83% of all criminal caseloads and have generally outnumbered felonies three- to-one. Thus, misdemeanor-level offenses are widespread, but there is very little data regarding the individuals facing misdemeanor charges or the adjudication process of misdemeanors. Misdemeanors are criminal offenses that are less serious than felonies, but beyond this, there is no universal definition of a misdemeanor. States vary in the types of offenses they label misdemeanors (e.g., traffic violations) and their associated penalties. In fact, some scholars have noted that designating particular crimes as misdemeanors ‘is largely a function of that jurisdiction’s idiosyncratic labeling choices’ (p. 109)” (p. 287).

“A substantial portion of individuals arrested for street crimes also experience mental illness. One study found that approximately two thirds of interviewed jail inmates (64%) endorsed mental health problems (defined quite broadly) in the past 12 months… Steadman and colleagues (2009) estimated that more than two million individuals with severe mental illness were admitted to jails in 2007 alone, and other scholars reported that individuals with severe mental illness in jails and prisons outnumbered those in hospitals threefold in 2005, with rates of mental illness among jail inmates appearing to increase in recent years.” (p. 287).

“Although empirical data are rare, scholarship suggests that individuals charged with misdemeanors are disproportionately likely to manifest symptoms of mental illness and be referred for forensic evaluations, in part, because many misdemeanor offenses criminalize behaviors that are directly or indirectly caused by mental illness (or poverty and/or addiction). There may be many indirect reasons for the higher arrest rates among those with mental illness, including arrests stemming from psychiatric emergencies and policies encouraging the arrest of homeless individuals. There are also instances in which law enforcement perceives that the only way to link a mentally ill individual with mental health services is through arrest, and then courts or defense counsel refer the defendant for a competence evaluation as a means of accessing treatment” (p. 288).

“The literature suggests that individuals charged with misdemeanors or other lower-level offenses are more likely to manifest significant symptoms of mental illness. But does this extend to those referred for evaluations of legal sanity? Insanity defenses are uncommon, raised in less than 1% of felony cases, and ‘successful’ (i.e., resulting in a verdict of not guilty by reason of insanity) in only 15–25% of cases in which it is raised; mental illness and criminal behavior frequently co-occur without psychiatric symptoms directly causing a particular criminal behavior. Moreover, to what extent is an evaluation of legal sanity the best response to a misdemeanor charge, even one committed by someone with serious mental illness?” (p. 288).

“Further, there may be costs or consequences to an insanity finding that may exceed the costs or consequences of a misdemeanor conviction. Scholars have long observed that not guilty by reason of insanity (NGRI) commitments are typically indefinite and often exceed the incarceration period that would result from a criminal conviction. Multiple studies have demonstrated that NGRI acquittees are usually confined for similar, or longer, time periods than those convicted of identical offenses, especially among lower-level offenses. Further, NGRI acquittees may lose additional civil rights compared to those convicted of misdemeanor offenses (e.g., possession of firearms).” (p. 288).

“On the other hand, perhaps raising an insanity defense is one way to link some individuals—those whose mental illness led directly to their misdemeanor—with the mental health services they need. For example, in Oregon, where statute limits NGRI commitment to the maximum sentence offered for the offense, some have suggested misdemeanor insanity acquittals are an underutilized jail diversion mechanism. Perhaps in such jurisdictions raising an insanity defense to a misdemeanor charge carries fewer risks and more potential benefits” (p. 288).

“The present study is the first to identify and review sanity evaluation reports for defendants facing only misdemeanor charges. We emphasize that our study reviews defendants referred for evaluation of legal sanity and cannot be necessarily generalized to the larger population of defendants facing misdemeanor charges. We instead focus on an important subset of defendants with mental illness who have not been diverted from the criminal justice system, but have been referred for forensic evaluation… We reviewed a state-wide sample of court-ordered sanity evaluation reports in Virginia and coded all reports for numerous variables describing the defendant, evaluation, and legal opinions associated with misdemeanor and felony evaluations. Further, we obtained fiscal data regarding average costs associated with sanity evaluations and postacquittal commitment as NGRI” (p. 288-289).

“Current findings suggest that sanity evaluations addressing only misdemeanor charges are not rare, and are more likely to result in insanity opinions compared to evaluations addressing felony charges. Importantly, the increased rate of insanity opinions among defendants facing only misdemeanor charges appears to be primarily explained by increased rates of psychosis. This finding supports the notion that defendants facing misdemeanor charges and referred for sanity evaluations are more likely to experience symptoms of severe mental illness than are defendants facing felony charges so referred. Results highlight questions about alternate approaches for those with serious mental illness who face misdemeanor charges, and may be diverted from the justice system without the substantial expense and restrictions typically associated with an NGRI acquittal” (p. 297).

Translating Research into Practice

“A small, but meaningful, proportion of sanity evaluations in the current sample (6.4%) were conducted on defendants charged with one nonviolent misdemeanor. Results show that these evaluations require roughly the same amount of resources and have a much higher rate of insanity findings (2.21 times higher) than sanity evaluations in other cases. This pattern lends further support to the notion that minor charges are associated with higher rates of insanity and raises questions about the appropriate use of sanity evaluations in misdemeanor cases. Many defendants charged only with misdemeanors and referred for evaluation appear to meet criteria for legal insanity, suggesting that the population may be appropriate for sanity evaluation referrals and eligible for the defense” (p. 295-296).

“However, eligibility for an insanity defense does not necessarily mean that pursuit of the insanity defense is in the best interests of the defendant or the justice system overall. Research has suggested that many NGRI acquittees may not fully understand the ramifications of pursuing an insanity defense and were not appropriately advised of the consequences by counsel. Those who do understand the ramifications of an NGRI acquittal may, quite reasonably, prefer a short period of incarceration to an indefinite period of psychiatric treatment and conditional release, even if they recognize some need for treatment. Of course, for defendants with misdemeanor charges, it may be that neither incarceration nor an NGRI acquittal are ideal. Other individuals with serious mental illness may access intensive inpatient treatment via civil commitment, which typically allows for intensive treatment with a much briefer loss of liberty” (p. 296).

“For those facing misdemeanor charges, an insanity defense may be more reasonable to the extent that it minimizes some of the risks described earlier (e.g., indefinite commitment) and functions more like a jail diversion mechanism. Schaefer and Bloom (2005) argue that if states limit the length of hospital commitment for NGRI acquittees to be no longer than the maximum sentence that would otherwise be received, pursuing an insanity defense may serve as an attractive diversion option for some defendants charged with misdemeanors, and an alternative to civil commitment or a mental health court disposition. As a state that does limit NGRI hospital stays to 1 year in response to certain misdemeanors, Virginia may benefit from sanity evaluations addressing misdemeanor charges. However, there are several potential drawbacks to using NGRI pleas as a diversion mechanism. For example, the criminal court oversees privileging and release; revocation of conditional release may lead to additional legal charges and incarceration, and NGRI acquittees are resource-intensive. Another potential problem is that the mechanism may be much too narrow to be of use to many defendants who need it. As an illustrative example, evaluators documented significant psychiatric symptoms in 64.9% of referred defendants facing misdemeanor charges in the current sample but opined that only 22.4% of defendants met criteria for the insanity defense, suggesting that the insanity defense may be too narrow to serve as an effective diversion mechanism for many defendants with psychiatric illness” (p. 296).

“Of course, other mental health-related, jail-diversion mechanisms exist, and may serve a broader group of defendants than the smaller population that meets narrow insanity defense criteria. Alternatives such as crisis intervention training for law enforcement, mental health courts, and broader diversion strategies all have the potential to steer individuals with serious mental illness who commit misdemeanor offenses toward forms of mental health treatment services, but without the potentially lengthy and expensive hospitalization that follows an NGRI acquittal” (p. 296).

“Scholars have rightly emphasized the moral argument for the insanity defense, ‘a prerequisite of justice’ that is necessary under the Due Process Clause. Without the insanity defense, a small subset of individuals with severe mental illness, charged with felonies, would face punishment for crimes for which they are not morally culpable, with little prospect for meaningful treatment. But the subset of individuals with mental illness charged with misdemeanors appears to be far greater, and the less serious nature of their charges may allow for other ways of diverting them from punishment and into treatment, without the severe restrictions and expense that NGRI acquittals entail. Although we could not formally compare NGRI acquittals for misdemeanor charges with diversion mechanisms for misdemeanor charges, we infer that the relatively high rates of serious psychiatric symptoms and insanity findings among those facing misdemeanor charges in this sample suggests a need to further study such diversion methods as viable options. A nimble justice system may be able to better respond to misdemeanor offenses by those with serious mental illness in ways that are less costly and restrictive” (p. 296).

Other Interesting Tidbits for Researchers and Clinicians

“A strength of the current study is that it included almost all court-ordered sanity reports in Virginia, submitted over the course of more than a year. However, we do not know how such reports were used in court, or any subsequent legal verdicts. Counsel may have used reports opining insanity (and even those that did not) as mitigation evidence or a plea-negotiation tool; defense counsel may not have pursued an insanity defense with every report offering an opinion of insanity. Typical report usage may vary by offense class; perhaps sanity evaluations in misdemeanor cases are more likely to be used solely as grounds for dismissal, or mitigation, than are sanity evaluations in felony cases. Future research is needed to examine decisions about whether to pursue an insanity defense, and verdicts when they do, in misdemeanor versus felony cases” (p. 296).

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