TJ Larson

A Colorado lawmaker is sponsoring a bill that will make it more difficult for attorneys to prove their clients are not guilty by reason of insanity.

The legislation, introduced by Rep. Frank McNulty (R), is aimed at shifting the burden of proof on defense attorneys who attempt to use the insanity defense for those accused of high-profile crimes. Currently, Colorado law requires that prosecutors prove that suspects are competent to stand trial when the insanity defense is submitted on behalf of a client.

The new law would require the defense to provide clear and compelling evidence that their clients are mentally deficient. The bill is scheduled to be voted on by a House committee on Wednesday.

The introduction of the new bill comes in the wake the July 20 mass shooting that took place in an Aurora movie theater that killed 12 and injured another 58 people. James Holmes, a 25-year-old former Ph.D. student, is accused of the shooting. Holmes' attorneys have said that he is mentally ill.

Holmes is set to appear in court on March 12 for arraignment.


The purpose and intent of this new legislation is clear. By placing the burden of proof on the defense, this means that attorneys will now have to provide reasonable proof that a defendant is mentally incapable of knowing right from wrong or at least that the defendant suffered some kind of episode that rendered them deficient at the time a crime was committed.

Whether changing this standard is a good idea is questionable for several reasons. For instance, placing the burden of proof on the defense would mean that the defendant would have to be able to provide the necessary mental health examinations and evaluations to prove insanity. This would certainly present a problem to a defendant who doesn’t have the resources to obtain these vital examinations.

Another question concerning this law is necessity. Insanity defenses are already extremely difficult to mount. One study on insanity defenses revealed that they accounted for only 1 percent of the total cases tried in the US. The study also showed that it was successful in only 26 percent of those cases.

Obviously, a defense that is only successful slightly over one-quarter of each time it is employed is not the greatest odds for a defendant attempting to use such a defense. However, the outlook only gets bleaker. Out of that 26 percent success rate, a whopping 90 percent of these involved individuals that already had previously documented cases of bouts with mental illness.

We now see that in cases like those of Holmes where there is little or no evidence of prior mental deficiency, an insanity defense, even in a case like this one, is virtually an uphill battle. The greatest concern, however, is if the requirements to prove insanity are tightened further, it could lead to the possibility of convicting someone who is actually mentally ill.

In capital offenses like the Holmes case, this could prove disastrous. The Supreme Court has already ruled that the execution of mentally ill offenders is unconstitutional, but if the bar is raised to establish mental deficiency we will certainly be at risk of executing more mentally ill people than those who may already have slipped through the cracks in the system.

This dilemma brings up yet another question: What should we do with the mentally ill who commit heinous crimes? Do we put them in hospitals and hope that they get better so that we can release them to possibly kill again? Or, should they, in fact, be allowed to be put down like rabid animals because they suffer from some incurable, untreatable mental disorder?

To most rational people it would seem that in order to commit some of the terrible crimes that we have seen, there would have to be a degree of insanity involved. But we also realize that there is apparently no limit to the depths of depravity that some human beings can sink to.

Can anyone really distinguish true insanity from pure evil? If so, what was the difference between Aurora, Columbine, Sandy Hook and so many other incidents seemingly committed by deranged individuals and say, the Sept. 11 attacks? Although the Sept.11 attacks were, by all indications, carried out by individuals with purposeful intent, could we apply the insanity defense to them as well? Certainly not! That would likely be the answer from most of you reading this. However, was the intent of those 19 men any more or less purposeful than that of those accused of these other crimes?

One may argue that the wholesale, random killing of innocent people should automatically mean that the offender is insane. On the other hand it could also be argued that committing suicide in order to kill hundreds or thousands is equally unreasonable. So where do we draw the line between insanity and evil? Is evil the product of insanity? Is it the other way around? Or, are evil and insanity one and the same?

Some say that good and evil are abstract concepts, that they are relative to the purposes of those they serve. If so, then insanity must be just as abstract and relative. If not, then good and evil must be just as real.

Related stories and sources:

Over the Edge of Insanity and into the Abyss

Criminal Justice: A Brief Introduction. Prentice Hall. ISBN 0-13-088729-3

Supreme Court Outlawed Executing Mentally Retarded, But Texas Does It Anyway