Avoiding the Insanity Defense Strait Jacket: The Mens Rea Route

During the last few years there has been an emphasis on tightening or abolishing the insanity defense.This trend increased dramatically after the trial of John Hinckley, the would be assassin of President Ronald Reagan.In the forefront of this movement, under pressure from public opinion, are federal and state policy makers and legislatures, as well as organizations representing lawyers, physicians, and mental health professionals.Some of them have taken "law and order" bows for their efforts.In many jurisdictions, mental illness can still be admitted as evidence in attempting to negate mens rea (i.e., guilty mind, wrongful purpose, or criminal intent as required in the mental state for the offense charged), even though such mental illness does not meet the requirements of traditional or newly-tightened insanity defenses.Some courts, using a broad brush, have called this the "diminished capacity" defense.However, in a 1977 Columbia Law Review article,1 law professor Peter Arenella labels the concept the "mens rea model."He divides this into two subdivisions: (1) strict mens rea "which admits only evidence showing that the defendant did not entertain the requisite mental state" 2 and (2) diminished capacity mens rea, which allows evidence of virtually unlimited mental disorder since any showing that the defendant was less capable than a normal * A.B.,