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Curry, C.J.
This case is before us on interlocutory appeal to decide the issue of whether the courts of The United States of Liberty will recognize the plea of not guilty by reason of insanity as a defense to the charge of murder. Since Parliament endowed this court with discretionary power to recognize "the law as generally and commonly established in either the United States of America or England", and since Parliament has not passed legislation governing the issue being appealed, that issue is properly before us.
The defendant, a 33-year-old welder, was institutionalized at age 16 for mental problems and diagnosed as a schizophrenic, undifferentiated paranoid type. He remained institutionalized for three years. He was then released to outpatient care, and has remained under such care up to the present. He is able to work, and is a skilled welder. At the time of the tragic events of Independence Day, 1997, the defendant was married to Mary Johnson, belonged to a church, and worked with underprivileged children. He and his wife were the parents of two children.
While preparing for an Independence Day barbecue in July, 1997, defendant and his wife argued over his selection of barbecue sauce. The argument escalated until the defendant became enraged and struck his wife, severely injuring her. She later died from her injuries, and the defendant was arrested and charged with murder.
At his arraignment, his attorneys entered a plea of not guilty by reason of insanity. The prosecutor objected and moved to strike the plea on the basis that the plea has not been recognized by statute or by the national courts of Liberty. The trial judge struck the plea and entered a general plea of not guilty. Defense counsel asked for leave to enter this interlocutory appeal, and the trial judge granted the request.
The Assistant Attorney General, in urging the court to reject the not guilty by reason of insanity defense, relies heavily on the case of Smith v. State, 614 P.2d 300 (Alaska 1980), to support the contention that any attempt to determine a defendant's legal sanity will be speculative at best. In Smith, two psychiatric experts testified for the defense, and another testified for the State. They all agreed that Smith suffered from chronic schizophrenia, but they sharply disagreed about whether his actions fell within the legal definition of insanity in Alaska. The experts for the defense testified that Smith lacked the capacity to conform his actions to society's norms, while the State's expert contended that he had such capacity. This division among the experts is, as the learned counsel for the state points out, a common occurrence at trial in the jurisdictions which recognize the insanity defense. From this fact, the State would have us infer that the division among the experts makes a legal determination of sanity virtually impossible for the fact-finder at trial.
The gist of the concern raised by the Assistant Attorney General seems to be that the acceptance of an insanity defense will, in effect, turn courtrooms into battlegrounds for psychiatric expert combatants to wage a war of competing theories about the nature of the psyche. According to the state, this would amount to staging a medical symposium where an unsatisfactory result is a fore-gone conclusion due to divisions of opinion within the scientific community about when a person may be declared legally insane. The implication of the argument is that the judiciary branch would be shirking a duty for no good reason at all.
The State's argument that the fact-finder will be hopelessly adrift in its efforts to determine the facts from the potentially conflicting testimony of scientific experts fails to take cognizance of two fundamental facts about our trial system. First, it is a matter of routine in modern criminal trials that the fact-finder must weigh the value of competing testimony based upon scientific theories and measurement. Indeed, it is difficult to imagine the State putting on a case without the use of evidentiary tools such as coroner's reports, forensic evidence, ballistics test results, and blood samples. Yet, data gleaned from these tests are often open to more than one interpretation; and, because the interpretation of the data introduced by the state as evidence is frequently open to challenge by a competing expert, the fact-finder may be put in the position of determining which expert's testimony is most persuasive. Surely the twentieth century brought about many changes in the sciences which have had their effect on the criminal justice system. Certainly, too, many defendants were erroneously sent to prison and other crimes remained unsolved in the days before these scientific advances. Far from hampering the fact-finding process, these advances have been of tremendous service in determining the facts of many criminal trials.
The State, in effect, urges the court to accept some scientific evidence in criminal proceedings as valid, while rejecting the scientific theories and data having to do with mental capacity. Yet, the argument of the Assistant Attorney General before this court relied on psychiatric evidence to urge the rejection of an insanity defense. Counsel cited the testimony of the state's psychiatric expert in the Smith case to demonstrate that a person could "fake" legal insanity. In our reading of the Smith case, the prosecution's expert, far from stating that legal insanity cannot be identified, merely asserted that Smith himself was not legally insane. Indeed, his broad assertion that psychiatry could determine when a person is "faking" insanity seemed to rest on the assumption that psychiatry can recognize when a person is insane. Thus, we believe that the State misreads the testimony in Smith. In the instant case, the Assistant Attorney General, draws on the expert testimony of Smith to suggest that while psychiatry may accurately determine that a person is "faking" insanity, it is incapable of determining that a person is insane. We find this argument not only untenable on its face, but we believe it to be a misreading of Smith.
A second factor which is overlooked in the argument by the State is the function of the jury. Juries are routinely confronted with witnesses who present conflicting accounts of what happened in a given case. It is the role of juries to sift and sort among this testimony to discern the facts. We see no compelling reason why this role should be so different when it comes to determining which medical testimony is most persuasive in judging whether a defendant is insane.
The State's second major concern was that the availability of an insanity defense would lead to a flood of insanity pleas by culpable defendants fraudulently seeking to avoid the just punishment of a prison sentence. They again cited the Smith case as support for their view. They pointed to the expert witness testimony regarding the Ganzer syndrome (The Ganzer Syndrome, or prison psychosis, is a condition in which one attempts to appear insane, or less sane than one is, for the advantage of being thought insane.) to demonstrate that a defendant may fake insanity with the purpose of being spared a prison sentence. They then suggested that allowing the not guilty by reason of insanity defense would open the courts to the inevitable deluge of defendants claiming to be insane.
Our reading of the statistical studies conducted among the jurisdictions allowing the not guilty by reason of insanity defense does not support the State's contention however. There have been numerous studies in various parts of The United States of America which indicate that the insanity defense is rarely raised, and even more rarely raised successfully. The eight-state study of U.S. county courts cited by defense counsel in oral arguments will suffice to illustrate the point (Bulletin Am. Acad. Psych. iatry And The Law, Vol. 19, No. 4 (1991)). In that study, the results showed that the defense was asserted in less than 1% of all cases filed. Furthermore, the study found that in 80% of the cases where the defendant was acquitted, the prosecution stipulated that the defense was appropriate to the facts. Thus, the figures not only indicate that there has been no deluge of false claimants to the defense, but that, in those jurisdictions recognizing the defense, the state itself far more often than not concedes that it is valid. We find the results of these studies compellingly sufficient to overcome the concerns raised by the state.
In light of these findings, we see no reason why some form of the defense urged by the appellant should not be adopted in The United States of Liberty. When looked at in light of the fundamental goals of just punishment and imprisonment in the criminal law, this conclusion seems even more justified. It is a cardinal principle of criminal law that for a punishment to be just, there must be some voluntary bad conduct accompanied by a culpable mens rea. Indeed, it was these very elements of criminal behavior that led to the various standards for a defense of insanity. Given the requirement of a guilty mind, how can a just and sane system of criminal law punish an individual who commits an act proscribed by the law, but lacks the capacity either to form the requisite mens rea for the deed or to appreciate the criminality of his act? Given the requirement that a criminal act be voluntary, how can a sane and just system of law punish an actor whose mental defect prevents him from controlling his behavior? It was these concerns that led to various formulations of an insanity defense to excuse or mitigate the criminal behavior of the mentally defective actor.
To give some context to the new rule which we pronounce today, a brief historical overview of the various formulations of the insanity defense, and a weighing of the pros and cons of each is merited. The first formulation of the insanity defense was handed down by the British House of Lords in 1843, and came to be known as the M'Naghten Rule. It tells jurors simply that:
"every man is presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, (1)the party accused was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or (2)if he did know it, that he did not know he was doing what was wrong."
This test, while addressing the cognitive concerns of the criminal law that an actor must have the capacity to form the requisite mens rea for criminal behavior, has nevertheless come under some criticism in light of increased scientific discoveries about the functioning of the mind. Some critics have focused on the word "know" in the rule to argue that it focuses too exclusively on the cognitive function of the brain. Other critics suggest that the rule is too narrow because it fails to take into account that the actor may be incapable of evaluation or choice or emotional integration. Courts have frequently interpreted the rule as requiring a total incapacity to reason, and critics have suggested that this view fails to take cognizance of the insane individual who has moments of lucidity. Perhaps, the most common early criticism of the rule was that it did not address itself to the actor who had sufficient capacity to understand the criminality of his conduct, but lacked the capacity to control his behavior.
It was this latter criticism which led to the next development of a rule to govern the insanity defense. This second rule, which came to be known as the "irresistible impulse rule" rests on the assumption that some mental diseases impair volition or self-control while cognition remains unimpaired, and would allow an acquittal if such a lack of volition could be shown. Critics soon began to voice the concern that it is impossible to discern which acts are uncontrollable, and that therefore the defense may be too easily accessible to all criminals, especially recidivists claiming that they could not help themselves, and pointing to their recidivism as evidence to support their claim. Furthermore, as newer theories of the personality as an integrated whole developed, some critics claimed that both the "irresistible impulse" model and the M'Naghten Rule unnecessarily fragmented the personality.
As an attempt to address the perceived fragmentation problems of the existing tests, an integrative model was proposed by a Royal Commission in Britain, and largely adopted in 1954 in the U.S. case of Durham v. U.S., 214 F.2d 862 (D.C. Cir. 1954). The Durham Rule held simply that "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." In practical application, juries were asked to determine whether, at the time of the act, the actor was suffering from disease of the mind or mental deficiency to such a degree that he ought not be held responsible. The obvious practical shortcoming of the Durham test soon became apparent as the door swung open wide for a true war of psychiatric experts, with no real standards for measurement in the definition for juries to consider. Such being the case, only two jurisdictions adopted the Durham standard, and they kept it only a short while.
In an attempt to integrate the perceived best components of the M'Naghten Rule and the "irresistible impulse" standard, the American Law Institute evolved a rule which is incorporated into the Model Penal Code, and has been adopted by about one-quarter of The United States. The MPC rule provides that:
(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.(2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
While the MPC standard did merge the M'Naghten and "Control" rules, it presents a valid attempt to offset some of the criticisms of the earlier models as well. It's substitution of the word "appreciate" for M'Naghten's "know" was intended to provide a broader view that the defendant must have an emotional as well as an intellectual awareness to be deemed sane. Furthermore, the use of word substantial as a modifier for capacity moves away from the M'Naghten implication that total destruction of mental capacity must be shown to prove insanity. Similarly, the prohibition of subsection (2) is an attempt to avoid the danger inherent in the "irresistible impulse" test that the defense might allow free use to recidivists who are labeled psychopathic. Finally, the MPC standard avoids the vagueness of the Durham standard, and provides functional guides for juries to use as measuring rods during deliberation. The rationale for such guides is that the language of the rule should do more than explain why the law might want to relieve actors of criminal responsibility; it should also provide a standard for judging who should be relieved of such responsibility and when.
Given the comprehensive goals of the MPC rule, and its substantial attempts to address the various criticisms of prior models that emerged over the years with increased understandings gained in the fields of psychiatry and psychology, we adopt it as the rule for The United States of Liberty, with one addition. We add the word recognized as a modifier for the phrase disease or defect so that the clause should read "A person is not responsible for criminal conduct if at the time of such conduct as a result of recognized mental disease or defect he lacks substantial capacity..." We make this single addendum in the interests of judicial efficiency, in the belief that spurious or excessively novel theories of psychological disorders should not be allowed to clog up the already crowded court calendars as they are argued. We recognize that today's recognized disorders were yesterday's novel theories, and that there is very likely a great deal yet to learn about the human mind and mental capacity. But, we choose as a matter of policy to trust the disciplines of psychiatry and psychology to accept into their respective canons these new theories at appropriate times after adequate controlled testing has rendered them acceptable. When they are so accepted, the courts will likewise take judicial notice of them.
We recognize that the adoption of a new defense in the area of criminal law raises procedural and administrative questions. We therefore turn our attention first to the matter of how to allocate the burden of proving the defense of not guilty by reason of insanity. Thereafter, we will outline appropriate procedures of commitment of the defendant who is found not guilty by reason of insanity.
We hold that the defendant will bear the burden of proving the affirmative defense of not guilty by reason of insanity by clear and convincing evidence. After the accused is deemed capable of standing trial in a pretrial psychiatric evaluation, the state will present its case against the defendant, without the need to present any evidence as to the defendant's mental capacity. When, the state concludes its case, the defense will present its case, with the added burden of proof regarding the defendant's mental capacity. Should the defense meet their burden of proof, the state will then have the chance to put on evidence to rebut and prove beyond a reasonable doubt that at the time of the criminal act the defendant was indeed sane.
In determining that the defense must bear the burden of proof on the question of insanity, we rest upon the long line of common law precedent. In England, the question of whether an actor had the capacity to appreciate the criminality of his actions was first presented in cases involving children. The law established a presumption that children below a certain age could not form such an appreciation. After the age of fourteen, however, it was deemed that a person could have the requisite capacity; and any actor who claimed insufficient capacity after reaching the age of fourteen bore the burden of proof. This rationale carried over into the area of the insanity defense with the advent of the M'Naghten Rule, which required "clear proof" of the defense. The rationale for such an allocation of proof, of course, may be gleaned from the fact that it is an internal, subjective matter which is difficult of proof from the outside objective viewer. Therefore, in the interests of fairness, the one who raises it should be allocated the admittedly difficult burden of showing it to be so. This is the majority view of the jurisdictions which recognize the defense, and we hold that it is the appropriate standard as a matter of law.
We further hold that if a defendant be found not guilty by reason of insanity, he -- though legally not responisble for his crime -- may be institutionalized if the court, after a post-trial psychiatric assessment, finds that he poses a threat to the public safety. An examination of the existing authority finds extensive support for such a ruling. In the United States, for instance, as a matter of constitutional law, in a purely civil proceeding, a person may be incarcerated in a mental hospital after a showing of "clear and convincing evidence" that he is dangerous to himself or others or gravely disabled. Addington v. Texas, 441 U.S. 418 (1979). In the realm of criminal law, however, the defendent who has won a not guilty by reason of insanity verdict where his insanity was proved by a preponderance of the evidence, the verdict itself is deemed sufficient to establish his dangerousness. Moreover, the state may then confine him as long as his illness or dangerousness may require, regardless of the maximum sentence for the crime with which he was originally charged. Jones v. United States, 463 U.S. 354 (1983). We now adopt the Jones Rule as the applicable rule of law in the United States of Liberty, with the one chage that the burden of proof shall be the aforementioned "clear and convincing evidence" standard rather than a mere preponderance standard.
Finally, we hold that a defendant who wins by a not guilty by reason of insanity verdict shall require medical clearance declaring him to no longer pose a danger to himself or society or be otherwise disabled before he may be released from incarceration in a mental hospital. Upon release, he shall then be required to serve a two-year probationary period where he shall receive periodic psychological observation and treatment on an outpatient basis. At the end of the probationary period, an evaluation shall be conducted by a court-appointed psychiatrist to determine if further observation is necessary.
In pronouncing this new rule of law, we seek to meet the fundamental goal of criminal law to punish only those voluntary bad acts that accompany a mind that is substantially capable of forming a culpable thought or will. We are convinced that there is no adequate retributive or deterrent aim to be served by finding a person guilty and imprisoning them for a crime committed without the minimum requirements of voluntariness and culpable mind. Furthermore, we are convinced that the objections raised by the state are insufficient to bar a recognition of the defense of not guilty by reason of insanity. We recognize that our ruling today may allow a small number of culpable defendants to avoid prison. However, we believe that the harsh rule urged by the state would lead to a much more egregious error of imprisonment of many in need of treatment who never had the mental capacity to form a culpably willed criminal thought or deed. This danger must be avoided as we embark on our new experiment in nationhood. In adopting the name "Liberty", we have embraced a treasured ideal and elevated it to the level of a right. We have, in effect, placed freedom and free will at the very apex of our hierarchy of values, and we, thereby set a lofty standard for ourselves. Criminal punishment of acts done but not freely willed has no place in such a society.
Accordingly, we remand this matter for a trial, consistent with the rulings herein pronounced.
Barnett, Chisolm, Robinson, and Williams, J.J., concurring.
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