Cover story

A few weeks ago, when Gov. Guinn signed Assembly Bill 156, the Nevada Legislature restored the insanity defense that it had eliminated in 1995 by establishing a guilty-but-insane law.

Legislators were forced to reinstitute the insanity defense because the Nevada Supreme Court, in 2002, said the laws against the defense were unconstitutional. The defense, as used in Nevada, dates back to a 19th Century legal definition of insanity called the M’Naughten Rule.

The not-guilty-by-reason-of-insanity defense is used nationwide in only 1 percent of criminal proceedings and is successful in less than one-fourth of those, according to the Psychiatric Times. It’s not the get-out-of-jail-free card that opponents claim it is.

The rule gets its name from a murder in England in 1841, when the prime minister’s secretary was killed by an insane Scotsman, Daniel M’Naughten. He was found not guilty by reason of insanity. The queen appealed, and the result was the M’Naughten Rule, which said that a person could be found insane only if, at the specific time of a crime, he or she was unable to know the difference between right and wrong.

Prosecutors like the M’Naughten Rule because it puts the onus on the accused to prove insanity at the moment the crime was committed—a difficult task, since murder trials often don’t take place for a year or more after the crime. The M’Naughten Rule is also more restrictive than other insanity defenses, which allow for uncontrollable impulses and other mental aberrations.

Civil libertarians say the law is inhumane, not taking into account advances in psychiatric medicine.

“The M’Naughten Rule, as it’s been applied in the 20th and 21st centuries, is designed to ensure almost everybody, no matter how severely mentally ill, may be tried and may be sentenced and may be potentially executed,” said Richard Siegel, president of the American Civil Liberties Union of Nevada. The ACLU attempted to intercede in the Ford case in 1982.

“It’s intended by prosecutors, judges and legislators to allow people like Priscilla Ford, no matter how psychotic they are and how long they’ve been psychotic, to be tried, convicted and sentenced—even to the death penalty.”

Siegel said his main criticism of the Ford trial was how the case was prosecuted. The prosecutor didn’t have to go for the death penalty; he could have gone for life without the possibility of parole.

“Priscilla Ford was an extremely psychotic woman,” Siegel said. “According to federal law, people should not be sentenced to death if they are seriously mentally ill. You hear judges and prosecutors say, ‘We accept in principle that people should not be sentenced to death if they are seriously mentally ill or mentally retarded.’ There has never been a willingness to accept the exemption from the death penalty for the seriously mentally ill the way it has finally happened for the mentally retarded.

“I believe that the Priscilla Ford case was one of the most serious miscarriages of justice in Nevada. This represented a 19th-century justice. This was an excellent example of how the M’Naughten Rule protects almost nobody. Only three people in 30 years in Clark County have benefited by not guilty by reason of insanity.”

Former Washoe County District Attorney Cal Dunlap expressed the opposing view in an op-ed piece he wrote for the Reno Evening Gazette two months after Ford’s sentence.

“A person who is murdered is just as dead when killed by an ‘insane’ person as is a person killed by someone with no mental disorder,” he wrote on June 27, 1982. “The family and friends of a victim suffer no less because death is caused by a person who is mentally ill or ‘insane.’ The grief and suffering is at least as great. Indeed, often the death is more difficult to accept because the victim has done absolutely nothing to provoke the wrath of the killer.

"The victim is totally innocent in most cases. Yet, it is commonly accepted by American society and most civilized countries that a person who is legally ‘insane’ should be treated differently than a person who is of sound mind.