The insanity defense and presidential peril

S ix shots broke the calm of a Washington afternoon on March 30, 1981, as John W. Hinckley, Jr., emptied his revolver of carefully chosen, Devastator. explodingtype bullets. Four of his six shots connected, hitting President Reagan, presidential Press Secretary James Brady, a Secret Service agent, and a policeman. Now four years later Congress has made substantial changes in the rules governing the defense that enabled Hinckley to be judged not guilty by reason of insanity. These changes are contained in the Comprehensive Crime Control Act passed on October 12, 1984. As part of the shift away from the rights of the criminal toward the interests of society, a shift also evident in recent Supreme Court decisions, this new anticrime package makes it tougher for defendants to gain pretrial and presentencing release, increases penalties for bail jumping, authorizes judges to impose supervision on defendants after prison terms are complete, and stiffens penalties for drug trafficking. The legislation also creates a commission to write uniform sentencing guidelines binding judges in federal cases unless they dissent in writing and legislates for the first time how the insanity defense should be used in federal insanity trials. Previously, Congress had allowed the federal appeals courts to establish, for trials within their jurisdictions, rules governing which side in federal insanity cases has to prove insanity and guidelines defining how sick is sick enough to bring acquittal by reason of insanity. This might well have remained the situation had it not been for Hinckley. Americans repeatedly witnessed his attempt at assassination on television and saw him vilified as the perpetrator of a heinous crime that has become all too common in America. Hinckley's sixth and final shot lodged in the president's lung after ricocheting off the presidential limousine. His first shot pierced the brain of Press Secretary James Brady. There was widespread feeling that confinement to a mental institution, with provision for release pending recovery, is not a severe enough penalty for Hinckley's crime. Many felt that if such mentally disturbed assassins as Sirhan B. Sirhan, Arthur Bremer, Squeaky Fromme, and Sara Jane Moore are in jail, why shouldn't Hinckley be? Why should he instead be in St. Elizabeth's Hospital in Washington, D.C. where, as New York Times reporter Stuart Taylor remarked in a September, 1982, Harper's article, his living conditions improved from what they had been in the months prior to his crime, and he had the egotistical pleasure of signing autographs for other patients. Others agreed with the verdict in the Hinckley case. An ABC News poll conducted the day after the acquittal was announced showed that 17 percent supported the verdict. After all, Western legal standards hold that seriously disturbed individuals who do not appreciate the wrongfulness of their conduct should be treated differently under the law than others. This is a principle found in the Talmud, in Aristotle's work, in Roman law, and in English common law commentaries as early as Henrici Bracton's thirteenth-century De Legibus et Consuetudinibus Angliae. The Roman law formulation found in Justinian's sixth-century codification makes the essential point: