"The Dire Consequences of Pleading Not Guilty by Reason of Insanity in Colorado"

The title of this post is the headline of this interesting recent (and long) article about the realities of how the defense of insanity plays out in the Mile High state.  I recommend the full article, and here are excerpts:

Americans are familiar with — and often fascinated by — cases in which alleged perpetrators have pleaded not guilty by reason of insanity (NGRI).  People such as John Hinckley Jr., who attempted to assassinate President Ronald Reagan; Lorena Bobbitt, who cut off her husband’s penis after she says he sexually assaulted her; and the Aurora theater shooter, who unsuccessfully asserted insanity, have generated media frenzies.  They’ve also caused the public to question the fairness and necessity of laws that say not everyone is equally culpable for criminal acts.

For more than two centuries, state legislatures across the United States have generally supported the idea that individuals with certain degrees of mental illness cannot be held criminally responsible for their actions and should be directed toward medical support, not incarceration. Although people are constitutionally entitled to be found competent to stand trial, the U.S. Supreme Court upheld in March 2020 the notion that there is no constitutional right to an insanity defense.  Four states — Kansas, Utah, Idaho, and Montana — have done away with the NGRI defense entirely.  Today, about one percent of all felony cases in the nation contain an insanity plea; of those, only around a quarter are successful.

Colorado continues to allow individuals to plead NGRI based on a very strict legal definition..... Local attorneys and legal experts explain that the defense should only be considered in the most serious situations, because of the attendant repercussions: In the Centennial State, NGRI acquittees are automatically committed to the state psychiatric hospital for treatment.  Unlike convicted criminals, who are sentenced for a set period of time, those who are deemed insane remain at the Colorado Mental Health Institute at Pueblo (CMHIP) until doctors and the courts agree they are stable and safe enough to reintegrate into the community.  Under Colorado law, their sentences aren’t supposed to be influenced by the specifics of their alleged crimes, as they are in some other states.  The amount of time to be served is the same for everyone: one day to life....

Research by Michael Perlin, professor emeritus at New York Law School and founding director of the International Mental Disability Law Reform Project, shows NGRI acquittees across the country generally remain confined in state hospitals longer than they would have been imprisoned had they pleaded guilty and entered the traditional carceral system. “The less serious the crime, the greater the disparity is,” he says.

Data acquired from the Colorado Judicial Branch show that, since 2010, less than 40 percent of all NGRI court filings in the state involved at least one murder or attempted murder charge.  Nearly a quarter of the cases in which insanity was presented included only class 5 felonies or below.  (Most felonies are labeled from class 1 — the most serious crimes, punishable by life in prison — down to class 6.)  According to hospital data received via a CORA request, as of late August, 31 percent of NGRI patients at CMHIP had a maximum offense level of felony classes 4 to 6.  “You need to supervise these folks, but there’s no reason to keep them in as long as they would have been in prison had they been convicted,” says Chris Slobogin, a professor of law at Vanderbilt University who helped update the mental health standards for the American Bar Association in 2016.  “Most of the time, they could be let out a lot earlier, and they should be.”...

There are far more people — roughly 10 times as many — with serious mental illnesses being held in jails and prisons than in state hospitals, according to the Treatment Advocacy Center, a national nonprofit that works to reduce barriers to mental health care.  But mentally ill or not, when prisoners’ penal sentences end, they are released into the community. Neither the courts, nor the jails, nor the departments of corrections first assess the potential impact on public safety or their likelihood to commit other crimes.

That’s not the case with those declared insane by the courts in Colorado.  To be released from CMHIP, NGRI acquittees like Ownby and Hoffschneider must be found to have “no abnormal mental condition which would be likely to cause him or her to be dangerous either to himself or herself or to others or to the community in the reasonably foreseeable future.”  It’s all about probability, Slobogin, the law professor, says: “What if there’s a 50 percent chance this guy will do something?  Does that give us grounds for keeping the person in or not?  Some people would say one percent is too high.  If that were true, we would have to keep everybody who’s in prison, in prison forever.”

Around 50 percent of people released from prison recidivate.  National recidivism rates for NGRI acquittees are not tracked, but limited research suggests they’re lower than those of incarcerated individuals.  “People who are found not guilty by reason of insanity face a larger uphill battle [to get released] than people who are not, even if their dangerousness or risk for violence is far lower than a person who might have committed the same offense and been put in prison,” says Neil Gowensmith, director of the Denver Forensic Institute for Research, Service and Training at the University of Denver.  “It’s a totally different standard, and one that may be, at times, not just stigmatizing, but flat-out discriminatory.”