Understanding the Insanity Defense

On November 30, 2021, the world changed for Oxford High School when Ethan Crumbley, a fifteen-year-old student, came to school and executed four of his classmates. Before the shooting, Ethan Crumbley had made disturbing drawings that prompted school authorities to meet with his parents. During their meeting, school officials urged Ethan Crumbley's parents to get him some help for his apparent mental illness. The parents refused to take Ethan Crumbley home. What happened after that is history. https://www.foxnews.com/us/oxford-school-shooting-ethan-crumbley-insanity

Now, Ethan Crumbley stands charged with committing twenty-four felonies, including first-degree murder and terrorism. Ethan Crumbley's defense to the charges is insanity. Ethan Crumbley's attorneys are prepared to argue that because he was insane, he cannot be held legally responsible for the crimes he committed. Such an idea is shocking to the public but might be his only chance at ever breathing free air.

The insanity defense is a popular topic for discussion in classrooms and at cocktail parties because of the common belief that it allows a person to get away with murder; in one way, that is true. Yet, there remains a real likelihood of confinement for a defendant who successfully argues the insanity defense. Getting away with murder with the insanity defense is not what the public commonly understands.

The insanity defense is the subject of much debate because it excuses even the evilest and most despicable conduct. However, the insanity defense is rarely used and hardly ever successful. Most legal scholars recognize that the insanity defense is used infrequently because of the difficulty in proving it. https://open.lib.umn.edu/criminallaw/chapter/6-1-the-insanity-defense/ Still, this author believes another problem is that even if “successful,” the insanity defense comes with lengthy confinement for the defendant. In this blog, I will provide you with a primer on the mechanics of the insanity defense and address the extra issues beyond acquittal.


The basic definitions of “insanity.” The basic understanding of the insanity defense begins with the idea that a defendant could not understand what he was doing was wrong, could not conform his behavior to avoid the wrongful act, or could not assist his attorney in preparing a defense.

https://www.law.cornell.edu/wex/Insanity_defense. In Michigan, MCLS § 768.21a adopts a similar standard by stating, “An individual is legally insane if, as a result of mental illness … or … intellectual disability … that person lacks substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.” MCLS § 768.21a(3) places the burden of proving insanity on the defense, although the evidence standard is by a preponderance—not the more stringent “beyond a reasonable doubt.”

MCLS § 768.21a legally excuses a criminal defendant who cannot understand that he is performing an illegal act. Put differently, if Ethan Crumbley's defense team can prove to the jury by a preponderance of the evidence that he could not understand the shooting of Oxford High School and killing classmates was wrong, then he could be found not guilty by reason of insanity of all twenty-four charges. The general public's hatred of the shooting and dislike of the insanity defense makes this result unlikely.

There is a compromise or reduced theory created by MCLS § 768.36. Under this statute, a jury can find the defendant guilty but mentally ill. A guilty but mentally ill defendant is not excused from legal liability and can be sentenced to the maximum allowed by law. In the case of Ethan Crumbley, this could include life in prison without the possibility of parole. The guilty but mentally ill verdict is a possibility. However, it has little to no consequence because a person is still guilty and sentenced to the Michigan Department of Corrections.


Procedural issues. There are several steps to the successful presentation of an insanity defense. First, a defendant who seeks to introduce the insanity defense must provide written notice of his intent to do so a minimum of thirty days before trial. MCLS § 768.20a(1). Failure to give the required notice results in the inability to introduce evidence of insanity at trial. MCLS § 768.21. Suppose the notice of intent to present the insanity defense is made. In that case, the court will refer the defendant for a mental competency examination at the state-operated Center for Forensic Psychiatry. MCLS § 768.20a(2). Following the competency exam, a qualified medical professional at the Center for Forensic Psychiatry will offer their opinion regarding the defendant's possible insanity. In many cases, this is as far as defendants go with their claim of insanity because it becomes obvious to their counsel that their client is sane for trial purposes.

However, in more extreme cases, such as Ethan Crumbley and Oxford High School, there is a likelihood that no matter what the medical opinion of the Center for Forensic Psychiatry, there will be a need for additional medical expert opinions. For example, if the Center for Forensic Psychiatry determines that Ethan Crumbley could understand the wrongfulness of his actions and could have chosen not to shoot up the school, then the defense will need to retain an expert who can counter this opinion by testifying to the opposite. If the defense presents testimony from a qualified expert that Ethan Crumbley could not understand the wrongfulness of his actions, then the jury would have to decide who was right. Conversely, suppose the Center for Forensic Pyschiatry determined that Ethan Crumbley was not able to understand the wrongfulness of his actions. In that case, one can quickly expect the Oakland County Prosecutor would retain an expert to say just the opposite. No matter what happens at the Forensics Center, there is an almost certain likelihood that the jury will determine the issue of Ethan Crumbley's sanity after hours and hours of expert testimony.

For anybody or any defense team considering the insanity defense, the value of expert testimony cannot be overstated. Whether a defendant can successfully present an insanity defense will almost always be based on expert testimony. The more substantial and persuasive an expert, the better chances the jury will find a defendant not guilty by reason of insanity. A trial attorney must recognize that all experts are not created equal Some experts are renowned in their field because of books they have written, their theories, their educational and work experience, and just about any other thing you can consider. It is critical for the successful presentation of an insanity defense to have the right expert.


Success with insanity - now what? After successfully presenting an insanity defense, the question becomes what happens next. What happens to Ethan Crumbley if his defense team successfully presents an insanity defense? A finding that Ethan Crumbley was guilty but mentally ill does not help him. As I previously mentioned, such a finding would likely result in him spending the rest of his life in a Michigan prison. So, remember success is finding not guilty by reason of insanity. In such a case, the defendant does not walk out of the courtroom to resume his everyday life. Instead, the defendant is committed to the Center for Forensic Psychiatry for sixty days for further evaluation.

At some point before the end of the sixty days, a professional at the Center for Forensic Psychiatry will make a recommendation. The Center can determine the defendant is healthy and released—an unlikely if not nearly impossible decision. In most cases, the Center will recommend the continued confinement of the defendant for treatment. This process leads to a petition in probate court to declare the defendant be hospitalized for further treatment, which in a high profile case like Oxford High School could lead to Ethan Crumbley being kept in a hospital for the rest of his life.

By now, you might be asking yourself why anybody would pursue an insanity defense. The reason is that any decision for confinement for treatment is not a permanent one. A defendant and the Center for Forensic Psychiatry can periodically ask the court to review a confinement order. The result is that the defendant someday may be released from treatment.

An example is found with John Hinkley Jr., the man who shot President Ronald Reagan in 1981. Although this case was in Washington D.C., it is a familiar one that is instructive for how a successful insanity defense may be the best option for certain defendants. Hinckley's attorneys successfully argued the insanity defense, which led to him being kept in a psychiatric hospital. After several requests for release, Hinckley was released from the hospital to live with his parents on September 10, 2016. https://en.wikipedia.org/wiki/John_Hinckley_Jr. For John Hinckley Jr., it took thirty-five years to see merit in pursuing an insanity defense. He spent thirty-five years in hospital confinement before being released. If Hinckley had gone to trial, he most certainly would have been convicted of the attempted murder of President Reagan, which would have landed him a life sentence with no possibility of parole.

In the case of Ethan Crumbley, the insanity defense gives a boy of fifteen years a similar hope. The shooting at Oxford High School is a horrific and highly publicized crime that will continue to draw the highest scrutiny from the public. The seemingly overwhelming evidence against Ethan Crumbley combined with the public's close watch leaves him with no other defense than to argue not guilty by reason of insanity. If such an argument is successful, then Ethan Crumbley may someday, decades from now, find himself walking out of a psychiatric hospital.


Final thoughts. The insanity defense is rarely used and even less successful. In cases where the evidence is extensive against a defendant, and the crime is horrible, insanity may be the only possible defense. If you face a serious crime and suffer mental illness, then the insanity defense might be your only hope. To learn more about the insanity defense and how it might help you, call Attorney REED. With more than thirty years of criminal defense and trial experience, Attorney Arnold E. Reed can provide you with the highest level of representation.