People found to be legally insane in Nevada may once again plead not guilty by reason of insanity, protecting them from prosecution under a new law that took effect last week.
Prosecutors, who pushed in 1995 to replace the state's insanity statute with one that substituted pleas of guilty but insane, downplayed its reinstatement and said the law is rarely used and tough to achieve.
But defense lawyers and civil libertarians argue the reinstated law fails to protect a mentally ill person's constitutional rights. The law was changed only after the Nevada Supreme Court ruled in 2001 that the old law violated the state and U.S. constitutions.
"It was a symbolic victory,"Richard Siegel, president of the American Civil Liberties Union of Nevada, told the Reno Gazette-Journal.
When lawmakers reinstated the plea of not guilty by reason of insanity, they chose to revert to the old statute's rigid 19th century standards for determining who is insane, Siegel said.
They could have updated the law with new standards that use more expansive criteria _ standards that half the states in the nation have adopted, he said.
The old standards, called the M'Naughten rule, make it almost impossible for a severely mentally ill person to qualify as such when involved in a crime, Siegel said.
"It may appear from the law that we are determined to protect the mentally ill,"he said."But the law as applied means that it is society's will to treat most seriously mentally ill people the same as others who are not at all mentally ill."
The Legislature abolished the insanity plea in 1995 after prosecutors successfully argued that courts were using the sanity of a person too liberally. They also said rebutting an insanity defense was time consuming and costly.
But in 2001, Frederick Finger of Las Vegas challenged the change in the law by appealing his murder conviction to the state Supreme Court. Abolishing the insanity defense, he argued, violated his due process rights.
In a 4-3 decision, the justices agreed.
"Legal insanity is a well-established and fundamental principle of the law of the United States,"the majority wrote.
A person found not guilty by way of insanity must be committed to a mental health facility until he or she is found to be no longer a danger to himself or others. Under the guilty but mentally ill statute, a person could be convicted of a crime and receive treatment in a mental health facility, but once released, must serve prison time if their sentence requires it.
The new law brought state statutes in line with the Supreme Court's ruling and used the M'Naughten standards found in the pre-1995 insanity statute.
Those standards were established in the British courts in 1843 in the case of Daniel M'Naughten, who tried to kill the prime minister but killed his secretary instead.
The case established the"right-wrong"rule, which says people cannot be held responsible for their crimes if they could not tell the actions were morally wrong when they committed them.
Critics argue the rule doesn't take into account advances in psychiatry and the understanding of mental illnesses that have occurred, especially since the 1950s.
Twenty-five states still use the M'Naughten test, but about half have altered the rule.
The newer standards, adopted by 22 states, were established in 1962 by the American Law Institute. Instead of a rigid knowing-right-from-wrong test, the new rules determine whether a person has the capacity to understand right from wrong.
Washoe County District Attorney Richard Gammick said he supported the 1995 change in the law abolishing the insanity plea. A person with mental illness should still be prosecuted, he said.
"The new law says they get completely away with it,"he said.
But Gammick said he's not bothered with the Supreme Court ruling and new legislation because the M'Naughten standards are so tough.
"I'm not aware of a person being found not guilty"under those standards, he said.
John Malone, a deputy county public defender, agreed the newest standards adopted by the Legislature are difficult to overcome.
But he differed with the prosecutor on whether that was best.
"It does tend to discriminate against people with mental illness,"he said."We create a lot of injustice in not recognizing those cases in which (an insanity plea) should be used."
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