A lawmaker wants to change Utah’s insanity defense so more mentally ill people can use it

(Scott Sommerdorf | Tribune file photo) The Matheson Courthouse in downtown Salt Lake City in 2016.

One Utahn kills someone because they believe that person is an evil robot. Another Utahn, overcome by a paranoid delusion, kills someone they understand is a person.

There’s no dispute that both people are mentally ill. Yet, under Utah law, only the first person qualifies to plead not guilty by reason of insanity. It’s a defense so restrictive that between 2012 and 2018, it’s been used successfully about once a year, on average — while an average of 33 people a year are found guilty and mentally ill.

Rep. Carol Spackman Moss, D-Holladay, wanted to change that with HB167. While the bill failed to pass in committee Friday by a 4-4 vote, Moss said she was happy with the committee member’s engagement with the issue, and said she “absolutely will” try to get the bill passed again in coming sessions.

Her aim is to change Utah’s current statute, which is nearly 40 years old, passed into law in 1983 after John Hinckley Jr.'s acquittal by reason of insanity in the attempted assassination of President Ronald Reagan. At that time, many states raised their thresholds for using an insanity defense but most have since reverted, leaving Utah as one of four states without a true insanity defense, along with Idaho, Montana and Kansas.

The defense in Utah hinges on whether a defendant had the intent to commit the crime charged — in a murder case, for example, whether they meant to kill a person. Moss and other advocates say expanding the law is a matter of equity and treating those with mental illness with dignity.

“Do we want to be a society that convicts and punishes those who are mentally ill,” defense attorney Mark Moffat asked at a September legislative committee meeting, “or [one that] shows them a measure of compassion by allowing them to have a viable defense of not guilty by reason of insanity?”

But opponents, like Salt Lake County District Attorney Sim Gill and a statewide prosecutors group, said the change would have unintended consequences, such as sending more people to the Utah State Hospital than it has room or funds to help. Plus, prosecutors add, those who can’t use the narrow insanity defense can be found guilty but mentally ill.

Further complicating the issue is timing: The U.S. Supreme Court could rule any day on Kansas’s lack of an insanity defense. The decision could signal whether Utah’s similar law is unconstitutional.

What the insanity defense bill wanted to change

Utah’s insanity defense can only be used by those whose mental illness prevented them from having “the mental state required" by the charge filed against them.

Moss’s bill would have opened up that definition to include those who had that criminal intent but, because of mental illness, were “unable to appreciate the nature and quality or the wrongfulness of [their] actions.”

Her bill would have included only those charged with first-degree or capital felonies. That would have been 29 people between 2012 and 2018, or 12% of the cases that used the defense or were found guilty but mentally ill.

During those years, state court data shows, 10 Utahns pleaded or were found not guilty by reason of insanity. Such defendants stay for an average of 13 years, according to Dallas Earnshaw, director of the Utah State Hospital.

In the same timeframe, defendants pleaded or were found guilty but mentally ill 231 times. They generally stay at the state hospital less than half that time before they are sent to prison to serve the remainder of their criminal sentence, he said. They most commonly were convicted of aggravated assault and assault by a prisoner, at 22 and 18 cases, respectively. Seven people were convicted of murder but also declared mentally ill.

Earnshaw said if the expanded insanity defense bill became law, the number of beds available for non-criminal patients will be reduced to make space.

“We do support the bill. We’re not against making sure that this population is treated appropriately and that they receive the care that they need,” he said.

How many would use the expanded defense?

The bill didn’t allow people who understood that their actions were wrong to argue that mental illness prevented them from controlling their actions, said Neal Hamilton, a defense attorney who has represented mentally ill people in high-profile Utah cases.

It also put the burden on the defense to prove a client is mentally ill. Third, the standard of proof for that issue required “clear and convincing” evidence instead of, for example, a lesser standard like a “preponderance of the evidence.”

Yet, Hamilton said, opponents kept going back to the issues of funding. He balked at that argument. “We’re one of the wealthiest nations in the world, and we can’t figure out how to do better by our mentally ill, other than just throw them in a jail. That’s insane,” Hamilton said.

Under Moss’ bill, Hamilton predicted just two more people a year would successfully use the defense.

Prosecutors still weren’t sold. They noted that Utah law already allows for the consideration of "mitigating” factors in such crimes, meaning someone found to be mentally ill can be convicted of a lower-level offense than the one with which they were initially charged.

Jeff Buhman, the director of Utah’s Statewide Association for Prosecutors, said he remained concerned about the impacts on the already overburdened state hospital. He also worried the law would open the insanity defense for people who shouldn’t qualify.

“We want to make sure that whatever changes are made do not allow accused person who are either faking or exaggerating a mental illness to avail themselves of the defense,” he said, “and this language broadens or enhances their ability to do that.”

Rep. Walt Brooks, R-St. George raised that concern during Friday’s committee meeting.

“I’m temporarily insane all the time,” Brooks joked, begging the question, could he qualify?

What’s wrong with the current law?

Trent Holmberg, president of the Utah Psychiatric Association, said those using the defense must go through rounds of evaluation with mental health professionals and are unlikely to fool them.

The American Psychiatric Association recommends that every state have an insanity defense that allows for meaningful consideration of how a mental illness can influence behavior — and Utah’s standard doesn’t do that, he said.

The biggest misconception "is that it might somehow endanger the public to have an insanity defense,” Holmberg said. “It’s exactly the opposite, because you’re taking people whose mental illness is making them violent and you’re putting them in a place and treating them, versus taking them to prison — and then there’s that same mental illness that made them violent still going to be there when they get released from prison.”

Moss’s bill outlined the circumstances under which a person could be released from treatment and mandates the state hospital must provide a post-release treatment plan. A defendant who doesn’t comply could be returned to custody.

Moss started her campaign to change Utah’s insanity defense after her neighbors, Robert and Diane Liddiard, were killed in 2017 by their mentally ill son, Robert Liddiard. The younger Liddiard was diagnosed with a rare form of schizophrenia called Capgras syndrome, which caused him to believe Satan had killed his parents and was residing in his father’s body, while a follower of Satan was occupying his mother’s body, according to statements in court by Hamilton, Liddiard’s attorney.

The son stabbed his parents so that "they could no longer be possessed by Satan and his follower,” Hamilton said, according to a transcript of Liddiard’s sentencing. A judge accepted his plea of not guilty by reason of insanity Jan. 15 in connection with both deaths, and ordered Liddiard to spend the rest of his life at the Utah State Hospital without the possibility of parole.

Someone who kills while under a different delusion "should have the same care, the same opportunities, the same treatment,” Hamilton said.

It all comes down to this, Moss said: “It’s just inhumane to punish somebody for doing something that he didn’t understand.”

And Moss said she’d keep pushing for that change until it happens.