Abstract
Arizona's insanity defense and post-insanity procedures have evolved over the last 30 years into a unique system. Arizona moved from a typical M'Naughten-based insanity defense to an adaptation of the Oregon Psychiatric Security Review Board (PSRB) model and then to its current form, in which the PSRB is cast in a correctional framework. These changes have resulted in a correctional statute, with outcomes that may subject the guilty except insane (GEI) offender to a disposition similar to that of someone found guilty but mentally ill (GBMI). We review the literature on the GBMI defense first developed in Michigan in the 1970s and compare Arizona's current system to the earlier GBMI models. We conclude with a discussion of Arizona's GEI verdict and implications of managing these offenders in a correctional framework, resulting in a modified GBMI statute.
This article describes the evolution of Arizona's insanity statutes from 1993 to the present, focusing on two significant legislative changes. There are three functioning Psychiatric Security Review Boards (PSRBs) in the country: Oregon,1 Connecticut,2 and Arizona. Using Oregon's program as a model, Arizona established its Psychiatric Security Review Board (AzPSRB) in 1993. Then, in 2007, the legislature modified the 1993 statute and changed Arizona's insanity defense into a verdict that allows some offenders to be transferred to prison. We discuss the various ramifications of how this statutory change has caused Arizona's classic insanity acquittal to become a modified guilty but mentally ill (GBMI) verdict that may result in incarceration rather than hospitalization and treatment.
This article is limited by a lack of empirical data on the disposition of insanity acquittees prior to 2016. Due to these limitations, we focus mainly on the statutory changes and their implications. In 2016 and 2017, the AzPSRB's record keeping improved. Future empirical work should focus on long-term records from the Arizona State Hospital (ASH) and on the improved records maintained by the AzPSRB.
Arizona's PSRB from 1993 to 2007
Table 1 outlines the statutory provisions prior to 1993 and the changes made in 1993 and 2007. Prior to 1993, the trial court maintained jurisdiction over an insanity acquittee after a not guilty by reason of insanity (NGRI) verdict. The court was responsible for determining whether the individual required continued confinement or was appropriate for release.3 At that time, Arizona's definition of insanity was consistent with the M'Naughten test, which stated that a person may be found NGRI “if at the time of such conduct the person was suffering from a mental disease or defect as not to know the nature and quality of the act, or if such person did know, that such person did not know that what he was doing was wrong.”4
Evolution of the Arizona Guilty Except Insane Defense
In 1993, the NGRI verdict was changed to guilty except insane (GEI), and the definition of insanity was changed to an abridged M'Naughten test5 that required, “At the time of the offense the person had a mental disease or defect and the person did not know the criminal act was wrong.”6 Additionally, the amendments excluded from the GEI defense disorders resulting from “acute voluntary intoxication, character defects, psychosexual or impulse control disorders” and “temporary conditions arising from the pressure of the circumstance.”7 Like NGRI in many other states, GEI is an affirmative defense in Arizona, and the burden of proof lies with the defendant to meet the elements of the test by clear and convincing evidence.
In addition to establishing a PSRB, the 1993 legislative changes divided insanity acquittees into two categories: serious (i.e., those who caused death or physical injury or the threat of death or physical injury to another person) and not serious, referred to as GEI-75. Following a successful insanity defense, a defendant from either category was initially committed to the Arizona State Hospital (ASH) for evaluation and treatment. For a GEI-75 individual, a hearing before the trial court judge was set within 75 days to determine “if the person is entitled to release from confinement or if the person meets the standards for civil commitment.”8 Alternatively, if the offense was determined to be serious, the acquittee would be committed to the jurisdiction of the AzPSRB for a term equal to the sentence that he could have received if found guilty under the Arizona Criminal Code.9 In Oregon, this period of jurisdiction was termed the “insanity sentence.”10 Prior to the expiration of its jurisdiction, and if the AzPSRB determined that the acquittee still required involuntary treatment, civil commitment proceedings could be initiated.11 The duration of the acquittee's civil commitment was subject to Arizona's civil commitment statutes.12
For those committed to the jurisdiction of the AzPSRB, the Board was required to hold a hearing after an initial 120 days at ASH and at prescribed intervals thereafter. At these hearings, statutes directed the AzPSRB to make one of three determinations: continued hospitalization, conditional release to the community, or release without conditions. Conditional release required a supervised treatment plan. If the treatment plan was violated, the AzPSRB could revoke the conditional release and return the acquittee to the hospital. Release without conditions occurred when the acquittee was determined to be in stable remission and no longer considered dangerous. The acquittee still remained under the jurisdiction of the Board for the duration of the imposed AzPSRB jurisdiction.13
Modified GBMI from 2007 to the Present
Annual reports by ASH from 2004 to 2016 are available online.14 In the 2004 report, ASH identified a problem with GEI individuals whom the hospital determined to be “no longer mentally ill, but still dangerous” (Ref. 15, p 45). According to the report, these individuals did not require treatment and had “no current symptoms of mental illness” (Ref. 15, p 45). The hospital's paramount concern for public safety, however, resulted in this subset of acquittees occupying beds while not undergoing treatment. ASH administrators noted that “[p]recious bed space and resources are spent on persons who do not require psychiatric care” (Ref. 15, p 45). ASH recommended that a solution to this dilemma needed to be decided by the legislature upon review of the current GEI laws because the hospital had no way of discharging these individuals.15,–,17
The 2007 legislature responded to these concerns with statutory changes requiring the judge to sentence those found GEI following a serious criminal charge to a term of incarceration under the state Department of Corrections, and then commit the person to the jurisdiction of the AzPSRB for the term of his or her “sentence.”18,–,20 Prior to 2007, there was no mention of the Department of Corrections or incarceration in the Arizona insanity statutes.
The introduction of the Department of Corrections in 2007 not only defined insanity acquittees as criminal offenders but also imposed an additional potential disposition for these GEI offenders. In considering the “safety and protection of the public,” the AzPSRB could now order that an offender deemed “dangerous or [having] a propensity to reoffend” be “transferred to the state Department of Corrections for the remainder of the sentence” and incarcerated in a correctional facility.21 The AzPSRB must decide “whether the person no longer needs ongoing treatment for a mental disease” and “whether the person is dangerous or has a propensity to reoffend.”22 The burden of proof remains on the offender to prove or disprove these two determinations by clear and convincing evidence.22 Unless the court overturns the AzPSRB's determination, the GEI offender is transferred from ASH to a correctional facility.
The System in Practice
The AzPSRB
Empirical data regarding AzPSRB actions over the years is limited. From 2016 forward, AzPSRB annual reports are available (annual reports prior to 2016 were not available). On December 31, 2016, there were 119 offenders under the jurisdiction of the AzPSRB, with 95 individuals committed to ASH, 23 on conditional release, and one released without conditions. During 2016, 12 new offenders were committed to the jurisdiction of the Board while 12 completed their AzPSRB jurisdiction. Of the 12 who completed their term of AzPSRB jurisdiction six were ordered to undergo evaluation for civil commitment, while no further action was taken on the other six. During 2016, the Board conditionally released eight individuals to the community, and 20 individuals remained in ASH, requiring various levels of care. Also in 2016, five individuals had their conditional release revoked by the AzPSRB and were returned to the hospital.23 All determinations made by the Board require a vote of three of the five AzPSRB board members.24 With the exception of one individual, there were no official records on other acquittees possibly transferred to corrections.
In 2016, the Board held 16 AzPSRB meetings with minutes available online.25 These minutes document dispositional information pertaining to each of the offenders discussed at the statutory hearings. A review of the meeting minutes for the first six months of 2017 suggests that most offenders appear before the Board in person and are represented by attorneys who are present in person or telephonically. Victims or the representatives of victims are also present.
When a change such as conditional release is contemplated (e.g., at the request of the acquittee, the treatment team, or by statutory requirement), the AzPSRB meeting minutes indicate that the hospital provides a packet that includes clinical information, a risk assessment, and a recommendation on whether the individual should be released. The Board periodically adjourns to confidential executive sessions to discuss protected health information.26 The Board may also hear testimony from the individual seeking release or from other interested parties such as a supportive family member. Members of the Board then vote to yield a final decision.
The records reveal only one case in which an individual was transferred from the AzPSRB to the Department of Corrections. The number of GEI cases decreased after the 2007 legislative changes were made. From 2006 to 2007, there were 180 individuals committed to AzPSRB jurisdiction. In the years 2008 to 2017, this number dropped to 138. These 138 individuals are at risk for transfer to corrections.27
GBMI
The GBMI defense was first introduced in Michigan following public concern regarding the possible premature release of NGRI acquittees. This concern was raised following the state supreme court's 1974 decision in People v. McQuillan,28 in which the court determined that insanity acquittees were to be treated similarly to civilly committed patients. The court ruled that, after an initial 60-day observation period, an acquittee who no longer met criteria for civil commitment should be released.29 Two individuals discharged from the hospital based on the McQuillan ruling then committed violent crimes, causing public outrage. This catalyzed the 1975 legislative change that resulted in the GBMI verdict.30
Michigan's GBMI defense requires the trier of fact to make three findings beyond a reasonable doubt: the defendant was guilty of a crime, the defendant was mentally ill at the time of the offense, and the defendant was not legally insane at the time the offense was committed.31 A Michigan offender adjudicated as GBMI is subject to a presentence evaluation and placed on probation (with treatment as a condition of probation) or sentenced to prison.32 The sentencing parameters are the same as if the defendant were found guilty. If imprisoned, the offender is entitled to mental health evaluation and treatment. If paroled, treatment may be a condition of parole.33
GBMI was interpreted by the Michigan Court of Appeals to be an “in-between classification [for] those [who are] mentally ill but not legally insane at the time of the commission of the offense. [Michigan] created special rules as to [an offender's] disposition after a finding to that effect” (Ref. 34, p 1). Another impetus for creating the GBMI verdict was a 1974 study from the Center of Forensic Psychiatry, which concluded, “In retrospect, after the trial, [only 20 percent of the 350 patients acquitted due to insanity] were legitimately found to be both mentally ill and, by reason thereof, exculpable” (Ref. 30, p 375).
Palmer and Harzelrigg35 outlined the objectives of GBMI: confinement of mentally disordered offenders to protect the public, reduction of the number of offenders found NGRI, and the availability of some specialized treatment for GBMI offenders during their term of incarceration. They concluded that the objectives of GBMI legislation were not being realized. There is also evidence that GBMI offenders were often not confined at all, and those who were not placed on probation spent more time incarcerated and were less likely to be released than their guilty counterparts.
South Carolina adopted a GBMI statute in 1984. At that time, there were 12 states that had enacted GBMI statutes. Morgen et al.36 examined South Carolina's initial experience with the GBMI statute. From 1984 to 1985, there were 42 individuals who were found GBMI by bench trial. Those 42 offenders were charged with crimes ranging from manslaughter to sexual offenses, and their psychiatric diagnoses included schizophrenia, mood disorders, substance use disorders, and paraphilic disorders. Psychiatric treatment after the GBMI verdict was limited. We were unable to determine the effect of GBMI on NGRI verdicts because South Carolina had only one or two NGRI verdicts per year.
The Institute on Mental Disability and the Law published a study of the GBMI verdict in the mid-1980s.37 The report reviewed GBMI offenders in Georgia, Illinois, and Michigan and concluded that approximately 80 percent of the offenders in the correctional system had “a recognizable and serious mental disorder,” with about 50 percent having a psychotic disorder. Regarding treatment of incarcerated GBMI offenders, “[d]espite the widespread belief that a GBMI finding guarantees an offender mental health treatment, a review of the relevant statutes indicates that the finding [of GBMI] does not ensure treatment beyond that available to other offenders” (Ref. 37, p 79).
Discussion
The evolution of Arizona's current insanity defense took place in two phases. In 1993, the Arizona legislature replaced a traditional NGRI verdict with a verdict of GEI and created the AzPSRB to manage a subpopulation of the GEI acquittees who were charged with serious crimes. The Arizona GEI defense and the AzPSRB were modeled after the Oregon GEI verdict and the Oregon PSRB (OrPSRB). Both Oregon's and Arizona's GEI verdict represented an admission by the insanity acquittee to having committed the alleged act, but GEI did not represent an admission of criminal guilt. For both states, the procedures after a GEI verdict, governed by PSRB statutes, kept the insanity acquittee either in the psychiatric hospital or on conditional release, both within the mental health system. The Oregon legislature changed the verdict to GEI in 1983, after the Hinckley verdict,38 and the verdict was designed to imply that the person was guilty of the act charged but insane at the time. This represents an affirmative defense to the criminal act based on insanity.39
Prior to Arizona's establishment of its PSRB, Connecticut also developed a program to manage insanity acquittees modeled after Oregon. A comparison of Arizona's statutes to those of Connecticut is beyond the scope of this article, but important differences from the models of Oregon and Arizona are worth noting. Scott, Zonana, and Getz describe Connecticut's statute as “more conservative,” in that it leaves “critical decisions” such as “final discharge from custody” up to the court and not the Connecticut PSRB (Ref. 40, p 981). The Connecticut statute allows the insanity acquittee to apply directly to the court for discharge from PSRB jurisdiction every six months.41 Additionally, the court can issue an order for continued commitment after the insanity acquittee's maximum commitment has expired if “… reasonable cause exists to believe that the acquittee remains a person with psychiatric disabilities or a person with intellectual disability to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others.”42,43
There is much to learn from each PSRB. Longitudinal data such as those presented by Bloom and Buckley1 should be developed across these three state programs to illustrate the variations in the models and their strengths and weaknesses. Such research would greatly benefit the insanity defense literature.
From 1993 to 2007, those found GEI of serious crimes in Arizona were committed to the jurisdiction of the AzPSRB for a term equal to the sentence that could have been imposed had the offender been found guilty.44 Arizona eliminated the mechanism allowing an insanity acquittee to be discharged from AzPSRB's jurisdiction before completion of the term imposed. In this area, Arizona is in contrast to Oregon, where discharge from the jurisdiction of OrPSRB is required when the OrPSRB finds, at any of its hearings, the acquittee is no longer mentally ill or no longer dangerous to others, even before the jurisdictional limit has been reached.45 By not having a mechanism for early discharge, GEI in Arizona became a determinate sentence, served in the mental health system, which is more consistent with imposing a punishment.
Following the 2007 changes, even if found GEI, the offender is no longer an insanity acquittee but is under the jurisdiction of the Department of Corrections and may be transferred by the AzPSRB from a mental health care setting to prison. We believe that this potential disposition is incongruent with the concept of legal insanity, which is an affirmative defense to a crime.
In the Arizona statutes, the criteria for transferring GEI offenders to prison depend on the meaning of the terms “no longer needs treatment” and “dangerous or likely to reoffend.” These terms are not defined in Arizona statutes or administrative rules. Review of the minutes from a 2016 AzPSRB meeting regarding one offender who was transferred to a correctional facility suggests that the AzPSRB relied heavily on the explicit recommendation of ASH.46 We were unable to identify records of any other individuals transferred to corrections. Members of the Board, however, indicated that there were others transferred in the past. With no statutory definitions, rules, or identified cases, we cannot comment further about transfer criteria at this time.
Arizona's 2007 legislative changes were mainly in response to ASH's report that, for the protection of the public, they were continuing the hospitalization of individuals adjudicated GEI who were no longer in need of treatment but were determined to be too dangerous for release. According to the hospital, this situation resulted in an inappropriate and expensive use of forensic hospital beds. At this time, we do not know if the concerns raised in the ASH reports were addressed by the statutory changes. The drop in GEI commitments to the AzPSRB following 2007, however, suggests that the statutory changes may have influenced the use of the GEI defense. Further study is needed to confirm this hypothesis.
How do these 2007 Arizona statutory changes differ from the GBMI statute that was introduced in Michigan in 1975 and in a dozen other states in the subsequent years? One difference is that, to date, most offenders found GEI in Arizona are still spending their now correctional sentence in the mental health system, not in prison. Other notable differences are found in the criteria used to determine eligibility for each verdict. While in both cases an offender has been found to have a mental illness, Arizona's GEI criteria are extremely narrow given the requirement of the abridged M'Naughten criteria. GBMI criteria are not well defined and thus apply to a broader subset of offenders because none of the cognitive or impulse qualifiers of insanity defense criteria are required. A third difference is the apparent disparity of psychiatric treatment afforded to GBMI offenders compared with GEI offenders in Arizona. It is likely that treatment in a hospital and oversight by the AzPSRB provide these offenders more comprehensive psychiatric care than what is offered to GBMI offenders incarcerated in most correctional facilities.
How are the GBMI verdict and Arizona's 2007 GEI verdict similar? Both verdicts find an offender guilty, requiring the finder of fact to determine beyond a reasonable doubt that the offender committed the alleged crime. The offender must also carry a qualifying mental health diagnosis that necessitates treatment, and both verdicts result in a determinate sentence that is based on a criminal sentencing statute. Finally, offenders found guilty by either verdict have the potential to spend at least part of their sentence in prison.
Taking into consideration the similarities and differences between Arizona's GEI verdict and the GBMI verdict, we conclude that the characterization of Arizona's current GEI verdict as a modified GBMI statute is justified. It is different from earlier versions of GBMI, but it is closer to GBMI than to an insanity defense. To be a true insanity defense, the current GEI verdict in Arizona should exculpate the offender of criminal responsibility. This was the case with Arizona's pre-2007 verdict and with the current GEI verdict in Oregon. The mechanism for transferring an offender from a mental health facility to prison is incompatible with the true meaning of an insanity defense, which is the exculpation from criminal charges due to mental disease or defect.
Arizona's system might be attractive to other jurisdictions in that it ensures that all GEI offenders are psychiatrically treated prior to any consideration of transfer to corrections. It is clear from reviewing the literature that the original GBMI statutes which managed offenders in a typical correctional framework were not successful in achieving the legislative intent. Initial hospitalization, oversight by the AzPSRB, and maintaining a determinate sentence, all while still holding an offender accountable, are modifications to a classic GBMI statute that Arizona has incorporated into its current law.
An important limitation of this study lies in the general lack of empirical data regarding the use of the transfer mechanism in the current GEI statute. Since the new statute took effect in 2008, we estimate that 138 serious GEI offenders were admitted to ASH and committed to the jurisdiction of the AzPSRB. Why does it appear that there have been so few transfers of these offenders to corrections? We know that it is not uncommon for questions to arise in all jurisdictions about the appropriateness of insanity verdicts after the acquittee has been hospitalized for some time. As mentioned above, this is an important area for future study to understand why the original intent of the 2007 changes does not seem to have been carried out more vigorously. To investigate this question, a future research project would require collaboration with ASH to look at records within the hospital that led to the original call for legislation and what happened with these and other cases following the passage of the 2007 legislation.
Are transfers not occurring because all GEI offenders still need treatment? Did the courts refuse to go along with recommendations to transfer an offender to prison in the past? The authors recognize that a lack of empirical data places limitations on conclusions drawn about the practical implications of the statutory changes in Arizona described in this article.
GBMI verdicts were designed to impose punishment while providing a higher level of mental health care to a distinct population of offenders in the nation's prisons. Arizona's current GEI verdict is a way of bringing this higher level of mental health care to a smaller number of offenders. A broader approach than the abridged M'Naughten definition of culpability could lead more mentally ill offenders to the psychiatric hospital or community treatment. The change in the definition from the insanity acquittee who is “not guilty” or “not responsible” for a crime because of a mental disorder to a criminal offender who is guilty of a crime carries with it the rules, procedures, and the heightened stigma of the criminal justice system. This is a fundamental change that deserves further exploration.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2019 American Academy of Psychiatry and the Law
