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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 89
October 18 , 2008

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Does the law treat the insane differently than the retarded?

There is little legal connection between insanity and mental retardation. "Insanity" is a legal term, not a medical one. "Mental retardation" is a medical construct--generally applied to anyone who scores below about 70 on an IQ test. A defendant can be mentally retarded without being legally insane, and vice versa. Still, there is some overlap. Between 20 to 35 percent of all non-institutionalised mentally retarded people have also been diagnosed with some form of mental illness.

Evidence of mental retardation tends to be a factor at two limited phases of a criminal trial: during a preliminary competency hearing, and later--if the defendant proceeds to conviction--to mitigate the severity of the punishment.

Insanity, on the other hand, is a legal defence. Evidence of a defendant's insanity is put on during trial to support a specific legal theory for the defence: that the offender didn't understand what he was doing at the time of the crime. Courts have been clear that the insanity defence and competence to stand trial are wholly independent determinations because they involve a defendant's mental state at different times and because the ultimate questions differ.

The competency hearing
Court competency hearings determine whether or not a retarded defendant can: 1) comprehend the nature of the charges again him; and 2) assist in his own defence. If the defendant cannot do so, he will usually be committed to a forensic hospital or, under some state laws, to prison sometimes for life, depending on his crime. These hearings are conducted by judges who rely heavily on psychiatric reports.

An insane defendant may also go through a competency hearing prior to trial. But unlike a severely retarded offender, he may well be deemed competent to stand trial. Since retardation is a permanent condition while "insanity" may be treatable, the insane offender can be often be "made" competent, with medication or therapies, whereas the retarded defendant may not.

The insanity plea
An insane defendant found competent to stand trial still has the option of pleading "not guilty by reason of insanity," a term which dates back to English common law. M'Naghten's Rule--still the test for legal insanity in about a third of the states--derives from an 1843 case involving a man who shot Prime Minister Robert Peel's secretary in the mistaken belief that the man was Peel. M'Naghten's rule holds that a person is insane if "at the time of committing the act, he was labouring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." About half the states use a more lenient standard than this "right versus wrong" test to determine insanity, specifically whether "the defendant could have known of the criminality (wrongfulness) of his conduct or conform his conduct to the requirements of law." Most mentally retarded people are not found to be legally insane.

The fakers
While the public believes that some famous insanity pleaders, including the Unabomber, Lorena Bobbitt, and most notoriously, John Hinckley, "fake" insanity to avoid punishment, a 1991 study showed that just under 1 percent of defendants pleaded not guilty by reason of insanity, and that only one in four of those pleas resulted in an acquittal. Even if a defendant can prevail on an insanity defence, s/he'll most likely be confined to a hospital for the severely mentally ill for a longer or equivalent period of time to his/her likely prison sentence.

Since the death penalty was reinstated in 1976, at least 35 mentally retarded defendants have been executed in the United States. In 1989, the Supreme Court ruled that it was "okay" to execute the mentally retarded because there was no "national consensus" against the practice. They have agreed to revisit that issue next term, in part because in 1989, only two states barred executing the mentally retarded.

Even if found competent to stand trial, a defendant has the right to bring in evidence of his mental retardation at the sentencing phase of the hearing. Juries can determine at that time whether an offender's mental retardation should be a mitigating factor in penalising him.

What are the legal rights of the retarded?


The legal rights of the retarded in other areas--such as marriage, home ownership, and the right to drive have not been explored. What are those rights?

The American Association on Mental Retardation defines someone as mentally retarded if they:

1) Have an IQ below 70-75;
2) Are limited in two or more adaptive skill areas (daily living skills needed to live, learn, work, and play in the community); and
3) If the condition is present from childhood (defined as age 18 or younger).

An estimated seven million mentally retarded people live in the United States.

Mentally retarded individuals have the same legal rights to marry, drive cars, and own homes as any other American, says Dr. Richard Redding of the University of Virginia's Institute of Law, Psychiatry, and Public Policy, and they need not pass any competency tests. So long as a mentally retarded individual can pass the DMV tests, he may drive a car; so long as he can pay the rent, a mentally retarded person may live where he pleases.

Under federal law, public schools may no longer assume that all retarded children must be sent to special classrooms. Instead, every retarded child is evaluated to determine what kind of education is appropriate. Some are placed in special classrooms for children with learning disabilities, while others are placed in a regular classroom with a special aide.

More than 30 states either prohibit or restrict marriage between people with "developmental disabilities" (another term for mental retardation). Such marriage laws are rarely enforced. But when they are, a competency hearing can be triggered by a guardian or family member who suspects manipulation or coercion behind the marriage. Courts adjudicating the denial of such fundamental rights as the right to marry or procreate will use a heightened level of scrutiny to evaluate whether the retarded individual is being unfairly denied his or her constitutional rights.

There has also been significant litigation under the Americans with Disabilities Act involving mentally retarded individuals evicted or denied access to housing based on their disability. Under the Americans with Disabilities Act and other civil rights legislation, including the Fair Housing Amendments Act of 1988, landlords and communities can no longer deny housing, employment, or other fundamental rights to the developmentally disabled without a strong showing that they simply have no capability to function.

The articles are compiled from www.slate.com, published on the occasion of World Mental Health Day.


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