The remarkable aspect of John Hinckley’s thirty-two years of being confined in a mental hospital—and closely supervised and monitored whenever he has been allowed to leave on day passes or home visits—is the comparison to other inmates, who have been dumped into the criminal justice system with little or no meaningful treatment or hope of improvement. For all the legal injustices Hinckley has incurred at the hands of the federal government, he has been far better served than most offenders with mental disabilities. What began with Ronald Reagan’s presidency and was accelerated by Hinckley’s “insane” delusions exemplifies the fundamental inhumanity of our criminal justice system for persons with serious mental impairments. The tragic consequences of these changes in laws and policies are one important focus of Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
The Reagan Revolution Begins
Ronald Reagan was elected President, in part, on a law and order platform. His administration promised to get tough on crime, while at the same time reducing government spending for social programs. There was little wiggle room for compassion, or promoting notions of diminished culpability or rehabilitation for anyone who engaged in criminal or criminal-like behaviors, especially if they had a mental impairment. The longest possible sentences and dispositions that states and federal government could impose were embraced as being needed to ensure the safety of our communities. At the same time, deinstitutionalization of residents of inhumane civil mental institutions and facilities was now legally required. Moreover deinstitutionalization was saving states and the federal government considerable sums of money when they largely decided not to shift mental health resources from institutions into our communities. Civil mental institutions were being depopulated, while prisons, jails, and secure detention facilities were about to overflow.
Until President Regan took office, sympathy for people with mental disabilities had been growing, including an acceptance of the obvious reality that serious mental impairments were likely to diminish a defendant’s culpability. Two of the more critical obstacles were trying to find good ways to make reasonable legal assessments of the impact of those cognitive impairments on the culpability of particular individuals charged with crimes and determining when those individuals were suitable to be released into the community. These were difficult challenges that in the 1970’s American society seemed willing to confront in humane ways.
John Hinckley’s assassination attempt in 1981, which almost killed President Ronald Reagan and decimated parts of James Brady’s brain, effectively reversed the momentum for humane mental health care and rehabilitation in the United States, particularly the notion that mental impairments diminish culpability. A double standard was created, which encouraged federal and state laws and policies that would ensure far fewer people with serious mental disabilities were allowed to pursue diminished culpability defenses or dispositions, while many more of them would be incarcerated longer and with far more restrictions if they were released. The ends may have appeared to justify the means to many, but fundamental legal and social principles were marginalized or cast aside in an unrelenting pursuit of retribution and community safety.
John Hinckley was a deeply troubled individual who was estranged from his family, had no real friends, was seriously depressed, and had an extraordinary obsession for the young female co-star of the movie Taxi Driver, Jodie Foster. Hinckley’s obsession was so deep that he traveled from Texas in September 1980 to stalk Foster when she was an undergraduate at Yale, professing his love for her in several different ways. This obsession continued for more than six months. The assassination attempt in Hinckley’s confused and distorted mind was the ultimate declaration of love, which he explained in a well-written letter to Foster about an hour before launching his attack. Among other things, he wrote:
Jodie, I would abandon this idea of getting Reagan in a second if I could only win your heart and live out the rest of my life with you….
I will admit…that the reason I’m going ahead with this attempt now is because I just cannot wait any longer to impress you. I’ve got to do something… to make you understand, in no uncertain terms, that I am doing all of this for your sake! By sacrificing my freedom and possibly my life, I hope to change your mind about me…Jodie, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love.
I love you forever,
Before Hinckley’s trial, it was obvious to both sides that an insanity defense was the only reasonable defense strategy. Vincent Fuller, the private attorney who had been hired to defend Hinckley, knew he had a compelling case to make, although there was no way to know how a jury would react to the evidence under the District of Columbia’s insanity standard, which would focus on Hinckley’s cognitive abilities to appreciate right from wrong. That standard was based on the traditional M’Naghten approach, which was less inviting to the defense than the American Law Institute standard that was found in a majority of jurisdictions, including most federal circuits. What helped the defense, immeasurably, is that in D.C. the burden to establish Hinckley’s sanity, as with all the basic elements of a crime, was on the prosecution to prove beyond a reasonable doubt. This made sense because historically in Anglo-American law sanity was viewed as being an essential component of a defendant’s state of mind.
Because this trial was such a high profile case, the experts on both sides had plenty of time to comprehensively view Hinckley’s psychiatric history from several vantage points. Not surprisingly, for those of us who are convinced that psychiatric experts in criminal and quasi-criminal cases tend to be hired guns, who normally testify the way the side that is paying them expects them to, the Hinckley trial proved to be a decisive confirmation. All the defense experts provided evidence that supported the view that the defendant was insane, while all the prosecution experts tried to refute that conclusion.
A Colorado psychiatrist, who had treated Hinckley months before the assassination attempt, admitted that he had misdiagnosed his patient as a chronic underperformer, who the doctor and Hinckley’s family hoped could be motivated by intensive behavioral therapy. This family psychiatrist had not delved into the emotional turmoil Hinckley was experiencing, nor did he know about his patient’s other disturbing proclivities, which otherwise should have led the therapist to diagnose a serious mental illness. This lack of insight about disturbed individuals, who have gone on to commit acts of violence, is typical, not only for trained mental health professionals, but for the patient’s parents, and those who interact with the individual. Except with the benefit of hindsight, there usually is very little to reliably distinguish those emotionally disturbed individuals who act out violently from the much larger set of disturbed individuals who never do.
Both defense psychiatrists found that Hinckley had a serious mental illness, which had produced psychotic symptoms. For one expert the psychosis appeared to manifest itself as a strong compulsion to be with Jodie Foster that could only be acted out by killing the President. Hinckley may have had an intellectual appreciation that what he was about to do was morally wrong, but on an emotional level there was no such appreciation. The other psychiatrist saw Hinckley’s actions as being part of a delusion. A third defense expert, who was a psychologist, testified that based on Hinckley’s performance on the Minnesota Multiphasic Personality Inventory, the defendant’s answers were so extraordinarily abnormal virtually everyone with a comparable score had a serious mental illness.
The government’s first expert was Dr. Park Dietz, who would gain notoriety some twenty years later by either making an inexcusable mistake or deliberately lying in the Andrea Yates case, that a depressed mother, who had drowned her five children in a bathtub, was faking her psychotic symptoms in order to appear to be insane. In Hinckley’s trial, Dietz acknowledged that the defendant had various personality disorders, but Dietz concluded that none of them rose to the level of psychosis, much less constituted insanity. What appeared to be an abnormal, delusional obsession with Jodie Foster that had turned Hinckley into a stalker, Dietz dismissed as a type of reaction that a fan would have for a star that he felt a strong emotional attachment to. On the day of the attempted assassination, Hinckley had carried out a carefully designed plan that had worked as he had hoped, which indicated to Dietz that the defendant must have had an awareness of the consequences of what he had been doing. A second psychiatric expert for the government reiterated and supported Dietz’s testimony.
In essence, while Hinckley was on trial, federal prosecutors argued that he did not have a serious mental illness, so he could not have been insane. According to their expert witnesses, the defendant’s condition was similar to what Hinckley’s Colorado psychiatrist had incorrectly imagined: an underperforming, lazy rich kid who had personality disorders. After the not guilty by reason of insanity verdict, the federal government’s position about Hinckley’s mental state would change radically, as would the position of the lawyers representing Hinckley. Both sides would deliberately switch their opinions in order to promote or discount the seriousness of Hinckley’s ongoing mental illness in the context of his confinement. This reversal of perceptions, which has occurred in many other legal cases as well, illustrates the Achilles heel of our advocacy system when it is used to determine an individual’s mental state.
The Insanity Verdict’s Effect on Mental Health Law and Policies Going Forward
It is doubtful that the effects of Hinckley’s not guilty by reason of insanity verdicts on all thirteen counts against him would have been as consequential, if he had carried out his assassination attempt against President Jimmy Carter, as he had originally contemplated, rather than President Reagan. Carter was sympathetic to mental health treatment in a very compassionate and non-coercive way, in large part because of his First Lady, Rosalynn. He also was sympathetic to the notion of rehabilitating prisoners and criminal justice reforms.
Reagan, on the other hand, was a law and order advocate, who as Governor of California joined President Nixon in pushing for much harsher criminal penalties and opposing efforts to rehabilitate prisoners. Thus, Hinckley’s insane actions, while devastating to all Americans, also proved to be a unique and powerful opportunity to push the new President’s law and order agenda by emasculating the notion of diminished culpability and cutting expenditures for mental health and rehabilitation programs for prisoners and other inmates.
Many people have written about the effects of specific changes to the insanity standards and switching the burden of proof to the defense in these cases. A verdict that was used only 1% of the time in felony prosecutions and proved unsuccessful nearly three times out of four became almost a practical impossibility, except in those cases with highly sympathetic defendants, such as mothers with post-partum depression, or defendants with enough wealth that they could pay for the very best defense and expert witnesses, regardless of the cost.
Unfortunately, curtailment of the insanity defense was the tip of the iceberg and a relatively modest legal transformation in comparison to other changes that were set into motion. The far greater legal and social impacts were what became known collectively as the criminalization of persons with mental disabilities. The Hinckley verdict helped the Reagan Administration change the public and academic perception that people with mental impairments were ill and should be treated compassionately with the presumption that people with such impairments are inherently dangerous. Civil institutions were no longer a practical solution for a vast majority of people with serious mental disabilities and committing them involuntarily was legally prohibited in most cases. Thus, the overwhelming desire to protect the public from the dangers that people with mental disabilities were presumed to pose had to be satisfied within the criminal justice system.
Legal fictions were created, which allowed the states and the federal government to detain and control these presumptively dangerous people by curtailing diminished culpability defenses and dispositions, while using predictions of dangerousness to incarcerate and otherwise control offenders with mental disabilities for much longer periods of time than other individuals, who committed comparable crimes. In addition, in order to save money by not wasting it on the rehabilitation of inmates, adequate mental health care would rarely be provided for in our criminal justice system going forward. We decided to adopt laws and policies that allowed governments to simply lock these impaired individuals up and throw away the key indefinitely, which increasingly has meant for a very long time, or until they die. With little available treatment within or outside the criminal justice system and predictions of dangerousness being based, in large part, on an inability to get better, an ominous catch-22 was put in place that tended to be devastating to anyone who had a mental disability and was ever deemed to be dangerous.
John Hinckley’s Incarceration At St. Elizabeth’s Hospital
After a jury found John Hinckley not guilty by reason of insanity, he was transferred to St. Elizabeth’s Hospital for an indefinite period of time, which has lasted for well over thirty years. He should have been the poster-patient for the benefits of mental health treatment and rehabilitation. There was no legitimate therapeutic reason why he was not transformed rather quickly into a relatively high-functioning citizen, who posed little danger to anyone.
In fact, he has been that model patient for many years now, but the federal government has been unwilling to admit success in its reflexive efforts to keep him permanently constrained by inventing reasons why he might be dangerous. Many of those reasons have revolved around his trying to have relationships with various women at St. Elizabeth’s, which were typically conceptualized, without any real proof, as a continuation of the type of obsessive behaviors he expressed with regard to Jodie Foster. The fact that he had largely concluded his Jodie Foster obsession, as soon as she failed to recognize him at his trial, never impressed federal authorities.
On many different occasions over many years, Hinckley has tried to obtain conditional release and gain more freedoms. Each time the federal government has opposed his applications. As the federal prosecutor, who failed to convict Hinckley and has steadfastly opposed his release observed, “we [meaning the federal government] do not believe that anyone who tries to nullify a national election with a bullet deserves the privilege of moving freely in a civilized society.” Various court decisions document how absurd and conniving this governmental obsession has become.
The man who federal prosecutors said did not have a serious mental illness when he was tried, suddenly became so ill after he was committed to St. Elizabeth’s that for decades representatives of the federal government have contended that Hinckley has made no substantial progress, despite receiving much better mental health care and treatment than a vast majority of people with mental impairments receive in the criminal justice system. In order to make that legal argument, however, the federal government has had to bypass or neutralize the treatment staff at St. Elizabeth’s on numerous occasions.
For example, in 1997, a lower federal court decided that even after fifteen years in captivity, Hinckley’s condition precluded him from spending 12 hours a week under the supervision of his parents as his treatment team had recommended. What raised suspicions of possible impropriety by the federal government was that the hospital’s review board had countermanded the treatment team behind closed doors for reasons that Hinckley and his legal counsel were not allowed to be privy to because such sessions were deemed confidential. The D.C. Court of Appeals upheld the lower court, including its decision not to compel the review board to make public its decision-making process.
A year later, however, Hinckley’s treatment team, presumably with the review board’s acquiescence, granted him a one-time, six-hour holiday pass to leave the grounds in the company of his parents, but with the direct supervision of hospital staff. True to form, U.S. attorneys successfully opposed this pass, at least initially, by convincing a lower federal court that the staff-instituted action constituted a conditional release, which required the court’s approval. The judge in that case also decided to agree with the federal government that any type of release for any amount of time would pose a danger to the community. A divided D.C. Court of Appeals reversed, ruling that this pass was not a conditional release, which required the lower court’s approval.
Since 1998 Hinckley has been granted incrementally longer and more frequent visitation opportunities falling well-short of full conditional release, all of which the federal government has opposed using spurious arguments. For example, in 2012, nearly fifteen years after he received his first pass, the government contended that Hinckley should still be denied his freedom because he was having a sexual relationship with a woman, which “increased the risk for violence due to depression or…to demonstrate his love for a woman.” Also, Hinckley had supposedly demonstrated his proclivity for violence because, while on a pass from St. Elizabeth’s, he had stared intently at a bookshelf in Barnes & Noble, which, along with many other titles, contained a history book on the assassination of President McKinley. Apparently, whenever Hinckley was allowed to leave St. Elizabeth’s, the secret service assigned agents to follow him.
As political commentator Roger Simon concluded back in 2009, “John Hinckley is a political prisoner. Or at least a prisoner of politics.” Hinckley became such a prisoner as soon as he was committed to St. Elizabeth’s and has remained so, even though since 1985 his “doctors have been saying he is in ‘full remission.’” Now there is a real possibility that Hinckley may become a free man in the foreseeable future.
The court that has been overseeing Hinckley’s release status has decided that as long as certain strict guidelines are followed, he may visit his mother in Williamsburg, Virginia up to 17 days a month. The nearly 60-year-old patient also will be permitted to drive a car to and from appointments and locations where someone is expecting him, which would include his volunteer job. Previously, if he wanted to drive while on these visits he had to be accompanied by family. Whenever he is unsupervised, however, he must carry a cell phone that has GPS capability, which is turned on. Hinckley also is restricted in how and when he may use the internet. Greater freedoms may be granted later on, but only after he has made at least eight successful visits with his mother—and presumably only if the political pressure to keep him confined does not increase too much.
The laws and policies that Hinckley’s insane actions helped spawn made it extremely difficult for him to be released into the community. What has happened to him is atypical in many respects. Even though he has been railroaded in the legal system, at least he has received relatively humane care and treatment. However, in other ways, his situation exemplifies what mental health care in the criminal justice system has become ever since Hinckley made an unwilling Jodie Foster a part of the lexicon of American history.
Fears of dangerousness, based on flawed beliefs and predictions, rather than empirical evidence, have overwhelmed the potential benefits of humane care, treatment, and rehabilitation. Criminal incarceration and other constraints on liberties have transformed America into being the most punitive industrialized society in the world, by far. Our most inhumane measures, however, have been reserved for people with mental disabilities, who are deemed to be dangerous. Public health, especially mental health, has been marginalized by various beliefs with no scientific or empirical basis that can infiltrate American society almost instantaneously. This is the postmodern version of tyranny of the majority in which scientific evidence and rational thought are viewed with distain, or simply ignored because it is inconvenient. Cognitive dissonance has become a national malady, especially with regard to our inhumane treatment of people with mental disabilities.
1. John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
2. John W. Parry, Criminal Mental Health and Disability Law, Evidence and Testimony (American Bar Association 2009).
3. Back Issues of the ABA’s Mental & Physical Disability Law Reporter (1976-2011). In 2011, the Reporter ceased publication.
4. Douglas Linder, “John Hinckley,” (University of Missouri-Kansas City School of Law April 2002).
5. Andrew Cohen, “The Day John Hinckley Jr. Walked Into a Bookstore,” The Atlantic Monthly (Jan. 2012).
6. Roger Simon, “Time to Let John Hinckley Go?” (06/18/09) Politico.com (last visited July 27, 2014)