- Email: [email protected]
Follow-up of insanity acquittees in Hawaii
International Journal of Law and Psychietty. Printed onthe U.S.A. All rights reserved.
Vol. 10,283-295,
1987
0160.2527/87 $3.00 + .OO Copyright 0 1987 Pergamon Journals Ltd.
Follow-up of Insanity Acquittees in Hawaii Robert P. Bogenberger,* Richard A. Pasewark,** Howard Gudeman,*** and Stephen L. Beiber****
Among the few follow-up studies reporting upon the subsequent criminal recidivism of “not guilty by reason of insanity” (NGRI) acquittees, the majority report a relatively high rate (Hodgins, 1983; Morrow & Peterson 1966; Pantle, Pasewark, & Steadman, 1980; Pasewark, Pantle, & Steadman, 1982; Phillips & Pasewark, 1980; Spodak, Silver, & Wright, 1984). In contrast, investigations conducted in Canada and Oregon indicate a fairly low recidivism for acquittees. In Canada, Quinsey, Preusse, and Fernely (1975) found that, of 56 dischargees, only 3 experienced rearrest. Unfortunately, this study is somewhat contaminated as it included a number of defendants found unfit to stand trial. Additionally, length of hospitalization for subjects upon discharge averaged 8 years. Thus, at discharge, acquittees were probably older than is the case in most jurisdictions and, hence, at lower risk for repeated criminal activity. The Oregon study of Bloom and associates (Bloom, Rogers, & Manson, 1982) is of particular interest in that it presents outcome information on an innovative mechanism, the Psychiatric Security Review Board (PSRB). The PSRB was established by statute in 1978 to supervise the care and treatment of NGRI acquittees. It comprises five members, “a psychiatrist, a psychologist, a lawyer, a person familiar with parole and probation, and a lay citizen” (Rogers & Bloom, 1982, p. 155). Management responsibilities for NGRI acquittees are vested in the board; and, in exercising this responsibility, it may contract with other agencies. These agencies include, but are not restricted to, the public mental health system.
*Doctoral Candidate in Clinical Psychology, Department of Psychology, University of Wyoming, Laramie, WY 82071, U.S.A. **Professor and Chairperson, Department of Psychology, University of Wyoming, Laramie, WY 82071, U.S.A. ***Administrator, Hawaii State Hospital, Kaneohe, HI 96744, U.S.A. ****Associate Professor, Departments of Statistics and Psychology, University of Wyoming, Laramie, WY 82071, U.S.A. Reprint requests should be sent to Dr. Pasewark. The authors express sincere thanks to the many individuals in the Hawaiian mental health and justice systems who provided access and other assistance. Particular acknowledgment is made to Donna Hamano, Central Register, Division of Mental Health; Steven Vidinha, Director, and Velma Matsuda, Criminal Data Center; Lester Cincade, Administrative Director, Hawaii Courts; John Blaylock, Director, and Violet Kam, Joyce Lee, and Caroline Oragaki, Division of Courts and Corrections. 283
284
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
Subjects in the Oregon study were 36 acquittees granted conditional release following trial and 90 acquittees granted conditional release following hospitalization from 1978 to 1980. During this period, an additional 138 acquittees were not conditionally released. Of the 126 releases, 40 were rehospitalized for “some breach of the conditional release plan or for deterioration in their mental condition,” (Bloom, Rogers, & Manson, 1982, p. 399); six were “charged with new crimes .” On the one hand, the Oregon data might, as the authors suggest, attest to the success of the PSRB in indicating a low recidivism rate. However, the data prove difficult to evaluate. First, the termination day of the follow-up period is not given nor is the average release time of the subjects provided. Even if the followup had been to the time of the initial paper presentation in 1982, it represents a much shorter follow-up period than that utilized in other investigations. Second, criminal recidivism is provided in terms of “crimes charged” without explanation of this term. The term might very well mean that the legal process proceeded past the arrest stage to arraignment or indictment; and, if this is the case, it would denote something quite different than that of arrest used as a criterion in other studies.
Method Subjects were all 107 criminal defendants who had been adjucated insane in Hawaii from January 1, 1970-June 30, 1976. The 1976 cut-off was established because, at that time, a court decision altered in more stringent fashion the criteria for involuntary hospitalization. During the time period of concern, and to the present, Hawaii was governed by the American Law Institute rule. Differing from most other jurisdictions, six dispositions are available to defendants deemed not responsible for a criminal act due to insanity. At any point in the proceeding, the court may enter an order of no1 prosecution because of insanity. Following such a court order, three dispositions are possible. The individual may: (1) be hospitalized until such time as she/he remits from her/his symptomology and is no longer a danger; (2) conditionally released to the community; or (3) released with no condition imposed. If the case proceeds to trial, and receives an NCR1 adjudication, the same three dispositions are available. If hospitalized or placed upon conditional release, consideration for a change in status is initiated by petition of the Director of the Health Department or the acquittee, and demands a court hearing. In all cases of conditional release, whether immediately following the court verdict or following hospital release, the acquittee is required to receive some type of mental health treatment. Additionally, and probably unique to Hawaii, the acquittee is assigned to a probation officer for supervision. Termination date of the study was June 30, 1984. All persons entering the insanity plea during the study period were identified through records of the Division of Courts and Corrections, Department of Health. This agency is responsible for the creation of insanity commissions to evaluate defendants entering the insanity plea. During the study period, there were 437 cases in which the plea was made by 404 criminal defendants. In 107
INSANITY ACQUITTEES
285
cases (24Vo),l a verdict of insanity rendered. These 107 cases formed the data base for the present study. In addition to court records, arrest records were obtained from the Crime Data Center. Mental hospitalization and out-patient records were derived from the Central Register of the Division of Mental Health, Department of Health. As relatively scant information exists about the insanity acquittee (Pasewark, 1986), and because of the somewhat unique nature of the Hawaiian population, the initial segment of the paper presents information on the characteristics of the defendant group. In the latter section, differences between the six dispositional groups are analyzed. Results
Characteristics of Acquittees As in most states, within the acquittee group, there are many more males (100) than females (7); and, the acquittee tends to be older than the general criminal defendant (M=29.0) with ages ranging from 18-70 years. Also in accord with prior studies, acquittees are primarily single (61%), of limited educational status (M= 10.7 years), and unemployed at the time of the NCR1 offense (71 (r/o). Reflecting Hawaii’s racial composition, a varied ethnicity is found among acquittees: Caucasian (42%); Hawaiian (19%); Japanese/Chinese (14%); Filipino (9070); Black (6%). Contrary to popular Hawaiian myth, the majority (54%) of NGRI acquittees are life residents. Of those whose residency status is known, only 10% had lived in the state for less than 1 year. Because of its military importance, Hawaii has a large military presence; 3 (3%) of acquittees were servicemen. As is the case in other jurisdictions (Bloom, Rogers & Manson, 1982; Morrow & Peterson, 1966; Pasewark, 1986; Pasewark, Pantle, & Steadman, 1979; Phillips & Pasewark, 1980; Quinsey, Preusse & Fernley, 1975), the NGRI offense often does not represent the first encounter of acquittees with law enforcement agencies. Of the acquittees, 61 (57%) had incurred a prior arrest and 40 (37%) had been arrested previously for a felony. In all, 286 pre-arrests had been incurred by the 107 defendants and of these, 105 were felonies. Frequency of arrests ranged from 11 defendants with one arrest to a single defendant with 19 arrests. Prior arrests for the group averaged 2.67, while felony arrests 0.99. It was much more likely for males (60%) than females (27%) to have incurred a previous arrest. Specific pre-arrest charges are given in Table 1. In descending order of frequency among prearrest categories were crimes against property (42Vo), against public order (23%), against persons (17%), and drug offenses(l2Vo). Also, in agreement with studies reporting upon prior mental hospitalizations (Hawkins & Pasewark, 1983), a significant proportion (78%) of the acquittees IIn comparison to the few states able to report on the matter, this is a fairly high success rate for the plea. Comparable rates are: Maryland 16%; Michigan 5%; Montana 8%; Ohio 14%; South Dakota; 0% Vermont 27%; Wyoming Oslo (Pasewark & McGinley, 1985). Unfortunately, no extant investigation addresses the possible reasons for the wide variations observed between jurisdictions in the frequency and success rates of the plea.
286
BOGENBERGER, PASEWARK, GUDEMAN, and BEIBER
TABLE 1 Arrests Incurred Prior to Commission
of NGRI Offense
Arrests
Against person Murder Assault Rape/Sexual assault Robbery Harassment Terrorist threat Indecent exposure (Subtotal) Against property Burglary Criminal trespassing/Property damage Larceny Auto Theft Criminal loitering Desecration Forgery/Credit card (Subtotal) Against public order Escape Weapon Possession Disorderly Conduct Traffic Offense Parole Violation Promotion of Gambling Lewdness Simple Trespassing (Subtotal) Drug offenses Promoting illegal drugs Promoting intoxicating compounds Liquor-unspecified Driving under influence (Subtotal) Other offenses Unspecified
N
010
3 18 4 18 2 3
1.0 6.3 1.4 6.3 .7 1.0
(5:)
(17::)
36 6 56 11 2 1
12.6 2.1 19.6 3.8 .7 .3
(12:) 7 10 27 3 1 4 1 (::)
Total
(4:::) 2.4 3.5 9.4 1 .o .3 1.4 .3 (2;:;)
10 16 4
3.5 5.6 1.4
(3:)
(I: ::,
(13) 00 286
(4.5) 99.6
-
had not been hospitalized previously; and males were much more likely to have prior hospitalizations than females. Of the 100 males, 24 (24%) had previous hospitalizations while no female had been hospitalized. Prior hospitalizations ranged from 14 persons with one hospitalization to three with four admissions. Not reported in previous investigations are out-patient services received by
INSANITY ACQUIT-TEES
287
acquittees prior to the NGRI offense; and, it is found that 20% of the males and 43% of the females had received such out-patient care. NGR I Offense The most serious alleged crimes with which the 107 acquittees were charged are listed in Table 2. Comparable to other studies, Table 2 reflects a wide array of NGRI offenses. These range from murder to credit card fraud. Crimes against the person represent 52% of the charge with murder accounting for 22070, robbery 14%, and assault 9%. Property offenses contribute 36% with burglary most prevalent (21 (r/o)within this offense category. Psychiatric Evaluation Diagnoses. At the time of the court-ordered evaluation, 69 (64%) of the acquittees were accorded some type of psychotic diagnosis. Of these, 28 (26%) were diagnosed as paranoid schizophrenic; 27 (25%) as some other type schizoTABLE 2 NGRI Offenses of Acquittees Arrests
Against person Murder Manslaughter/Negligent homicide Assault Rape/Sexual assault Sex Abuse Robbery Criminal coercion (Sub-total) Against property Burglary Criminal Trespassing/Property damage Larceny Auto theft Credit card fraud (Sub-total) Public order Escape Weapon possession (Sub-total) Drug offenses Promoting illegal drug Driving under influence (Sub-total) Other offenses Total
N
o/o
24 2 10 2 2 15
22.4 1.9 9.3 1.9 1.9 14.0
(5:)
(52::)
22 4 8 4
20.6 3.7 7.5 3.7
(3:)
(36::)
3
2.8
(:)
(3:;)
288
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
phrenia; 3 (3Vo) as a major affective disorder; 3 (3010)as an organic psychosis; and 8 (7070)as some other type psychosis. Other diagnostic categories represented were personality disorders (7C70),mental retardation (60/o), neuroses (3%), alcohol abuse (1 Vo), and sexual deviation (1 Vo). One acquittee was found to be without mental disorder. In 17 (16%) cases, no diagnoses were indicated; and in 1 (1 olo) case, there was a disagreement among examiners regarding diagnosis. Evaluation on Issue of Insanity. In the 107 cases, a psychiatric opinion of insanity had been formulated for 91 (85%) defendants. In 9 (8.4%) instances, a defendant evaluated as sane was accorded an insanity verdict by the court. For five cases, no finding on the issue of insanity was rendered by examiners; and in two cases the examiners disagreed on the issue. This high level of concordance has also been reported for other jurisdictions by Steadman, Keitner, Braff, and Arranites (1983) and Rogers and Bloom (1984), as well as in a previous Hawaii investigation (Fukunaga, Pasewark, Hawkins, & Gudeman, 1981). Evaluations on Issue of Competency. On the issue of incompetency, there is a much lower level of agreement between findings during the evaluation and court decision on the matter. Of the 107 defendants, 48 (45%) had been evaluated as incompetent. However, the court ruled that only 16 (15%) were unfit to immediately stand trial. Agreement between the results of psychiatric evaluation and court ruling on the matter of incompetency obtained in only 61 (57%) of the cases (Table 3). Two possible explanations are offered to explain the low level of agreement between the examiners and the courts on the issue of competency. These are: (1) psychiatric evaluators are not sufficiently familiar with the criteria employed by the judiciary in determining competency; or (2) as a result of treatment or spontaneous remission, symptom severity of defendants are ameliorated substantially from the time of psychiatric evaluation to the time of court decision on the matter. This later phenomenon is, for example, quite common during involuntary hospitalization proceedings wherein an acutely disturbed individual is hospitalized under emergency hospitalization procedures. However, prior to court appearance, there is a remission of blatant symptoms resulting from treatment by psychotropic drugs or removal from the stress situation precipitating the symptoms. l)pe of Legal Representation Consistent with the large proportion of defendants who were unemployed at the time of the offense of concern, 92 (86%) were represented by public defenders or court appointed attorneys. Type of Court Procedure and Court Disposition As indicated previously, Hawaii’s criminal procedure law allows for a no1 prosecution insanity disposition prior to trial; and in 27 (25%) of the 107 cases, this procedure was utilized. Of the 80 (75%) cases that were tried, only 2 (2.5%) were by jury. The most common disposition made of acquittees by the courts was manda-
289
INSANITY ACQUITTEES
TABLE 3 Agreement of Psychiatric Opinion and Court Decision on Issue of Competency Court Decision Competent
Total
Incompetent N
%
5.6 9.3 00 2-F
57 48 2
53.3 44.9 1.9
14.9
107
100.0
Psychiatric Opinion
N
%
N
%
Competent Not competent No opinion
51 38 2
47.7 35.5 1.9
6 10 0
Total
91
85.1
Is
Of the 107 persons, 64 (60%) were hospitalized; 43 (40%) following trial and 21 (20%) as a result of the no1 prosecution procedure. Accorded acquittals with a conditional release stipulation were 35 (33%); 31 (29%) following trial and 4 (4%) by the no1 prosecution process. Eight (8%) of the acquittees were released without condition; 6 (60/o) following trial and 2 (20/o) by no1 prosecution.
tory hospitalization.
Subsequent Mental Health Admissions Excluding the hospitalization and mental health care ordered as a concomitant of the insanity acquittal or in conjunction with another criminal offense, 44 (41%) of the 107 acquittees, all males, were rehospitalized under civil statutes. In all, 182 civil post-hospitalizations were experienced ranging from 28 patients with a single subsequent hospitalization to 1 patient with 13 hospitalizations. Males were more likely to be rehospitalized than females. Of the 100 men, 44 (44%) experienced at least one post-hospitalization. None of the 7 females were rehospitalized. Of the 107 acquittees, 51 (48%) were later admitted to a public outpatient facility; 48 were males and 3 females. Number of admissions totaled 105. These ranged from 27 patients with one admission to one subject having 9 admissions. TABLE 4 Court Dispositions
Commit
Conditional Release
Release
N
%
N
%
N
%
Result of trial No prosecution
43 21 ----
40.2 19.6
31 4
29.0 3.7
6 2
5.6 12
Total
64
59.8
35
32.7
8
7.5
290
BOGENBERGER,
There was no difference in receiving out-patient mental The relatively high rate accord with the severity of suggests a group with fairly
PASEWARK,
GUDEMAN,
the proportion health services of mental care the diagnoses severe emotional
and BEIBER
of men (48%) and women (43%) (x2 = .07; p = .79; df = 1). services provided acquittees is in accorded defendants. Generally, it problems necessitating treatment.
Arrests Following Insanity Acquittal For the group as a whole, a relatively high rearrest rate was experienced. Of the 107 acquittees, 72 (67%) were arrested subsequent to the insanity adjudication and 60 (56%‘0) had been apprehended on a felony charge. In all, the acquittees had accumulated 362 arrests (M= 3.4). One female experienced two felony arrests. Frequency of arrest varied from 35 (33%) with no post-arrests; 21 (20%) with one arrest; 28 (26%) having a 2-5 apprehensions; and, 23 (22%) incurring 6-23 arrests. In contrast to studies in other jurisdictions (Pasewark, 1986) mean postarrests for males (3.4) did not differ significantly from that for females (2.7; two-tailed t = 1.9; p = .17). Postadjudication arrests by category are given in Table 5. It is of some interest that of the 64 defendants involuntarily hospitalized following an insanity verdict, 17 (27%) incurred a total of 44 arrests while still under hospital jurisdiction. Of these 44 arrests, 16 were for escape. For five of the rearrested acquittees, escape represented the only arrest incurred. The 12 acquittees rearrested for crimes other than escape experienced arrest under a variety of conditions, some on more than one occasion. Six were arrested for offenses committed while on escape or on leave without consent status; six were arrested after being granted conditional release by the court; three were arrested while on inpatient status; and three were arrested, (one acquittee eight times), while on convalescent leave or home visit status. Similarly, of the 35 acquittees granted conditional release following the insanity verdict, 11 experienced an arrest while under post-acquittal care and supervision. Essentially, results indicate that despite the provisions for hospitalization, mental out-patient treatment, and probation officer supervision, a relatively high rearrest rate was observed for NGRI acquittees. Although acquittees continue to experience rearrests following the NGRI verdict, the offenses for which they are arrested tend to be less serious than the NGRI offense itself. Thus, for example, Felony A offenses, the most serious offense category in Hawaii, constituted 36% of the NGRI offenses but only 7% of the post-arrests. Of the NGRI offenses, 52% were crimes against the person while only 17Vo of the post acquittal arrests are in this offense category.
Differences Among the Six Dispositional Groups Upon initiation of the study, it was anticipated that significant differences would prevail among defendants assigned to each of the six dispositional groups. For example, it was expected that in contrast to members of the “acquit and commit” group, defendants in the “no1 prosecution and commit” category would contain defendants who were primarily female; older; have more prior hospitalizations; have been diagnosed as more seriously mentally disturbed; have fewer pre-arrests; have been charged with a less serious NGRI offense; and
291
INSANITY ACQUllTEES
TABLE 5 Subsequent Arrests of Insanity Acquittees Arrests
Against person Murder Manslaughter/Negligent homicide Assault Sodomy Sexual assault Sexual offense Robbery Harassment (Sub-total) Against property Burglary Criminal trespassing/Property damage Larceny Auto theft Forgery/fraud (Sub-total) Public order Escape Disorderly Conduct Open Lewdness Criminal Possession Weapon Prohibitions Traffic Offenses Revoke Probation Criminal Tampering Criminal Loitering Impersonating Public Official Prison Contact Resist Arrest Promote Pornography (Sub-total) Drugs & Alcohol Promoting drugs Promoting intoxicating compounds Liquor law violation Driving under influence (Sub-total) Other offenses Total
N
%
3 1 22 1 1 1 24
.8 .3 6.1 .3 .3 .3 6.6
(6:)
(1 Z)
(15:)
12.2 7.2 18.8 1.4 2.2 (41.8)
50 23 7 2 1 2 2 1 1 1 1 1
13.8 6.4 1.9 .6 .3 .6 .6 .3 .3 .3 .3 .3
(9:)
(26: :)
28 11 4
7.7 3.0 1.1 1.4 (13.2) (2.5)
44 26 68 5
(4:) 0 362
100.4
292
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
would be more likely to be found incompetent by both the psychiatric evaluators and the court. However, for the most part, these speculations proved unfounded. To determine whether a significant association prevailed among the six dispositional types and subject characteristics, log linear analysis (Dixon et al, 1981) and post-hoc x2 tests (Nie, 1975) were conducted. Following these initial analyses, the six dispositional categories were collapsed into: (1) the three broader categories of “hospitalized,” conditionally released,” and “released without condition”; and (2) the two categories “acquitted by trial verdict” and “no1 prosecuted because of insanity.” Log linear analysis and post-hoc x1 tests were then applied to determine the significance of associations among these more inclusive categories and the variables considered. Resulting from these analyses, the following significant associations were found: 1. Those defendants, who were hospitalized following acquittal, were more likely to have had two or more prior felony arrests (x2 = 11.1; df = 1; p = .OOl). 2. Individuals diagnosed as psychotic at the time of court ordered evaluation were more likely to be acquitted as a result of trial (74%) than those defendants without a psychotic diagnosis (37%; x2= 12.7; df = 1; p = .0004). 3. Defendants with previous outpatient admissions were more likely to be acquitted as a result of trial (96%) than by means of the no1 prosecution procedure (4%; x2 = 10.1; df = 4; p = .04). 4. No significant association prevailed between type of attorney (i.e. private or public) and whether a defendant was hospitalized following acquittal. However, if represented by a private attorney, it was more likely that the acquittee would be released without condition (20%) than if represented by a public attorney (5%). If represented by a court-appointed lawyer, it was more likely (37% versus 7%) that the defendant be released with conditions (x2 = 11.7%; df= 5; p = .05). 5. Although no significant association is found between type of disposition and whether or not a defendant incurs a particular category of arrest (e.g. against person) following acquittal, those hospitalized accumulate more arrests for the combined categories of crimes against the person and property as opposed to the combined categories of public order and drug offenses than do persons released conditionally or without condition (x2 = 4.4; df = 1, p = .04). 6. Defendants hospitalized as a result of court disposition were more likely to have a subsequent out-patient admission, exclusive of that ordered as a condition of hospital release, than were defendants released or released conditionally (x2 = 4.7; df = 1; p = .03). Aside from these findings, no significant association prevailed between restrictiveness of disposition or type of court judgment (i.e., NGRI verdict following trial or no1 prosecution because of insanity) and the variables of age, sex, ethnicity, marital status, residency, military status, employment status,
INSANITY ACQUITTEES
293
number of prior or subsequent arrests, type of prior or subsequent arrest, number of prior or subsequent felony arrests, previous or subsequent hospitalizations, type of NGRI offense, or diagnosis at the time of psychiatric evaluation. Summary and Discussion Despite the ethnic and cultural differences between Hawaii and mainland jurisdictions, the picture of the Hawaiian NGRI acquittee corresponds fairly closely to that derived elsewhere (Hawkins & Pasewark, 1983). The portrait evolved is that of a male resident of the state, somewhat older than the general criminal defendant, of limited education, and with a poor employment record. Only a limited number of the defendants are likely to have prior mental health contacts of an in or out patient nature. However, a fairly large number have incurred prior arrests. The offense to which the acquittee pled insanity represented a wide gamut of crimes ranging from homicide to misdemeanors but the more serious crimes against the person are overrepresented. Based upon records and after the fact, it is difficult and perhaps dangerous to “second-guess” court decisions. Yet, if one accepts the underlying philosophy of the insanity plea from the mental health data available, it would seem that the insanity plea process operates fairly well in conformity to Hawaii’s statutory provisions. Generally, exculpated from criminal responsibility are those individuals who suffer from a severe mental disorder. Thus 22% of acquittees experienced prior hospitalization and a like proportion had received out-patient treatment. Most were accorded psychotic diagnoses and evaluated as insane at the time that the criminal act was committed by supposedly impartial court-appointed examiners. A large number were also evaluated as incompetent to stand trial. Similarly, after discharge from the court ordered mental health care following acquittal, a sizeable number were later admitted to public mental hospitals or out-patient facilities. In accord with the majority of publications reporting on the matter, a relatively high rate of criminal recidivism, as measured by arrests, was found subsequent to the insanity verdict. These rearrests tended though to be of a less serious nature than that offense to which the defendants pled insanity. This high rearrest rate occurred despite the fact that, upon being granted conditional release, acquittees were required by the court of jurisdiction to receive some type of out-patient mental health care and be subject to the supervision of an assigned probation officer. This finding is quite discrepant from that reported by Rogers and Bloom (1982) on the operation of Oregon’s Psychiatric Review Board in which follow-up services are also mandated for the conditionally released acquittee. Two possible explanations are offered for this observed difference. These are: (1) the PSRB does a more successful job in providing postacquittal care and supervision of acquittees than the procedure followed in Hawaii; or (2) the follow-up period in the present study is much longer than that in the Oregon study, and with longer release time for the Oregon acquittees, the presently observed differences will be minimized. Contrary to expectations, differences between members of each of the six dispositional alternatives available to Hawaiian courts were found to be minimal. In this respect the major finding is that, probably based on a perceived
294
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
threat to others, the court is most likely to order hospitalization for persons who have incurred a number of antecedent felony arrests. The data provide no clearly discernable rationale for the insanity judgment of no1 prosecution rendered by the courts. It is quite likely, but unknown at the present time, that the no1 prosecution judgement might represent an agreement between prosecution and defense that some type of insanity ruling is required in a given case. The matter of possible pre-trial agreements made between prosecution and defense is one that has not yet been addressed in the literature and is a topic that is certainly worthy of investigation. Interestingly, the restrictiveness of the disposition had no relation to subsequent rearrests. It was equally likely that acquittees committed, conditionally released, or released without condition would incur an arrest following the court verdict. With respect to the follow-up arrest data, our results are somewhat discouraging. They continue to raise questions, as expressed previously (Pasewark, Pantle, & Steadman, 1982), regarding the effectiveness of psychiatric treatment in ameliorating the criminal activities of many of the individuals constituting an NCR1 population. References Bloom, J., Rogers, J., & Manson, S. M. (1982). After Oregon’s defense: A comparison of conditional release and hospitalization. International Journal of Law and Psychiatry, 5, 391-402. Dixon, W. J., Brown, M. B., Engleman, L., Frane, J. W., Hill, M. A., Jennrich, R. I., & Toporek, J. D. (1981). BMDP Statistical Software. Berkely: University of California Press. Fukunaga, K., Pasewark, R. A., Hawkins, M., & Gudeman, H. (1981). Insanity plea: Inter-examiner agreement and concordance of psychiatric opinion and court verdict. Law and Behavior, 5, 325-328. Hawkins, M., & Pasewark, R. A. (1983). Characteristics of persons utilizing the insanity plea. Psychological Reports, 53, 191-195. Hodgins, S. (1983). A follow-up study of persons found incompetent to stand trial and/or not guilty by reason of insanity in Quebec. International Journal of Law and Psychiatry, 6, 399-411. Morrow, W. R., & Peterson, D. B. (1966). Follow-up of discharged offenders-‘Not guilty by reason of insanity’ and ‘Criminal sexual psychopaths.‘Journal of CriminalLaw, Criminology and Police Science, 57, 31-34. Nie, N. H. (1975). Statisticulpackugefor thesocialsciences. New York: McGraw-Hill. Pantle, M. L., Pasewark, R. A., & Steadman, H. J. (1980). Comparing institutionalization periods and subsequent arrests of insanity acquittees and convicted felons. Journal of Psychiatry and Law, 8, 305-316. Pasewark, R. A., & McGinley, H. (1985). Insanity Plea: National survey of frequency and success. Journal of Psychiatry and Law, 13, 101-108. Pasewark, R. A., Eantle, M. L., & Steadman, H. J. (1979). The insanity plea in New York State, 1965-76. New York State Bar Journal, 52, 186-189, 217-225. Pasewark, R. A., Pantle, M. L., & Steadman, H. J. (1982). Detention and rearrest rates of persons found not guilty by reason of insanity and convicted felons. American Journal ofPsychiatry, 139, 892-897. Pasewark, R. A. (1986). A review of research-on the insanity defense. Annals of the American Academy of Political and Social Science, 484, 100-l 14. Phillips, B. L., & Pasewark, R. A. (1980). Insanity plea in Connecticut. Bulletin of the American Academy of Psychiatry and the Law, 8, 335-344. Quinsey, V. L., Preusse, M., & Fernely, R. A. (1975). A follow-up of patients found ‘unfit to stand trial’ or ‘not guilty because of insanity.’ Canadian Psychiatric Association Journal, 20, 461-467. Rogers, J. L., & Bloom, J. D. (1982). Characteristics of persons committed to Oregon’s Psychiatric Security Review Board. American Academy of Psychiatry and the Law, IO, 155-164. Rogers, R., Seman, W., & Sampley, J. (1984). A study of socio-demographic characteristics of individuals evaluated for insanity. National Journal of Offender Theories and Comparative Criminology, 28, 3-10.
INSANITY ACQUITTEES
295
Spodak, M. K., Silver, S. B., & Wright, C. U. (1984). Criminality of discharged insanity acquittees: Fifteen year experience in Maryland reviewed. Bulletin of the American Academy of Psychiatry and the Law, 12, 373-382. Steadman, H. .I., Keitner, L., Braff, J., & Arranites, T. M. (1983). Factors associated with a successful insanity defense. American Journal of Psychiatry, 140,401-403.
Vol. 10,283-295,
1987
0160.2527/87 $3.00 + .OO Copyright 0 1987 Pergamon Journals Ltd.
Follow-up of Insanity Acquittees in Hawaii Robert P. Bogenberger,* Richard A. Pasewark,** Howard Gudeman,*** and Stephen L. Beiber****
Among the few follow-up studies reporting upon the subsequent criminal recidivism of “not guilty by reason of insanity” (NGRI) acquittees, the majority report a relatively high rate (Hodgins, 1983; Morrow & Peterson 1966; Pantle, Pasewark, & Steadman, 1980; Pasewark, Pantle, & Steadman, 1982; Phillips & Pasewark, 1980; Spodak, Silver, & Wright, 1984). In contrast, investigations conducted in Canada and Oregon indicate a fairly low recidivism for acquittees. In Canada, Quinsey, Preusse, and Fernely (1975) found that, of 56 dischargees, only 3 experienced rearrest. Unfortunately, this study is somewhat contaminated as it included a number of defendants found unfit to stand trial. Additionally, length of hospitalization for subjects upon discharge averaged 8 years. Thus, at discharge, acquittees were probably older than is the case in most jurisdictions and, hence, at lower risk for repeated criminal activity. The Oregon study of Bloom and associates (Bloom, Rogers, & Manson, 1982) is of particular interest in that it presents outcome information on an innovative mechanism, the Psychiatric Security Review Board (PSRB). The PSRB was established by statute in 1978 to supervise the care and treatment of NGRI acquittees. It comprises five members, “a psychiatrist, a psychologist, a lawyer, a person familiar with parole and probation, and a lay citizen” (Rogers & Bloom, 1982, p. 155). Management responsibilities for NGRI acquittees are vested in the board; and, in exercising this responsibility, it may contract with other agencies. These agencies include, but are not restricted to, the public mental health system.
*Doctoral Candidate in Clinical Psychology, Department of Psychology, University of Wyoming, Laramie, WY 82071, U.S.A. **Professor and Chairperson, Department of Psychology, University of Wyoming, Laramie, WY 82071, U.S.A. ***Administrator, Hawaii State Hospital, Kaneohe, HI 96744, U.S.A. ****Associate Professor, Departments of Statistics and Psychology, University of Wyoming, Laramie, WY 82071, U.S.A. Reprint requests should be sent to Dr. Pasewark. The authors express sincere thanks to the many individuals in the Hawaiian mental health and justice systems who provided access and other assistance. Particular acknowledgment is made to Donna Hamano, Central Register, Division of Mental Health; Steven Vidinha, Director, and Velma Matsuda, Criminal Data Center; Lester Cincade, Administrative Director, Hawaii Courts; John Blaylock, Director, and Violet Kam, Joyce Lee, and Caroline Oragaki, Division of Courts and Corrections. 283
284
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
Subjects in the Oregon study were 36 acquittees granted conditional release following trial and 90 acquittees granted conditional release following hospitalization from 1978 to 1980. During this period, an additional 138 acquittees were not conditionally released. Of the 126 releases, 40 were rehospitalized for “some breach of the conditional release plan or for deterioration in their mental condition,” (Bloom, Rogers, & Manson, 1982, p. 399); six were “charged with new crimes .” On the one hand, the Oregon data might, as the authors suggest, attest to the success of the PSRB in indicating a low recidivism rate. However, the data prove difficult to evaluate. First, the termination day of the follow-up period is not given nor is the average release time of the subjects provided. Even if the followup had been to the time of the initial paper presentation in 1982, it represents a much shorter follow-up period than that utilized in other investigations. Second, criminal recidivism is provided in terms of “crimes charged” without explanation of this term. The term might very well mean that the legal process proceeded past the arrest stage to arraignment or indictment; and, if this is the case, it would denote something quite different than that of arrest used as a criterion in other studies.
Method Subjects were all 107 criminal defendants who had been adjucated insane in Hawaii from January 1, 1970-June 30, 1976. The 1976 cut-off was established because, at that time, a court decision altered in more stringent fashion the criteria for involuntary hospitalization. During the time period of concern, and to the present, Hawaii was governed by the American Law Institute rule. Differing from most other jurisdictions, six dispositions are available to defendants deemed not responsible for a criminal act due to insanity. At any point in the proceeding, the court may enter an order of no1 prosecution because of insanity. Following such a court order, three dispositions are possible. The individual may: (1) be hospitalized until such time as she/he remits from her/his symptomology and is no longer a danger; (2) conditionally released to the community; or (3) released with no condition imposed. If the case proceeds to trial, and receives an NCR1 adjudication, the same three dispositions are available. If hospitalized or placed upon conditional release, consideration for a change in status is initiated by petition of the Director of the Health Department or the acquittee, and demands a court hearing. In all cases of conditional release, whether immediately following the court verdict or following hospital release, the acquittee is required to receive some type of mental health treatment. Additionally, and probably unique to Hawaii, the acquittee is assigned to a probation officer for supervision. Termination date of the study was June 30, 1984. All persons entering the insanity plea during the study period were identified through records of the Division of Courts and Corrections, Department of Health. This agency is responsible for the creation of insanity commissions to evaluate defendants entering the insanity plea. During the study period, there were 437 cases in which the plea was made by 404 criminal defendants. In 107
INSANITY ACQUITTEES
285
cases (24Vo),l a verdict of insanity rendered. These 107 cases formed the data base for the present study. In addition to court records, arrest records were obtained from the Crime Data Center. Mental hospitalization and out-patient records were derived from the Central Register of the Division of Mental Health, Department of Health. As relatively scant information exists about the insanity acquittee (Pasewark, 1986), and because of the somewhat unique nature of the Hawaiian population, the initial segment of the paper presents information on the characteristics of the defendant group. In the latter section, differences between the six dispositional groups are analyzed. Results
Characteristics of Acquittees As in most states, within the acquittee group, there are many more males (100) than females (7); and, the acquittee tends to be older than the general criminal defendant (M=29.0) with ages ranging from 18-70 years. Also in accord with prior studies, acquittees are primarily single (61%), of limited educational status (M= 10.7 years), and unemployed at the time of the NCR1 offense (71 (r/o). Reflecting Hawaii’s racial composition, a varied ethnicity is found among acquittees: Caucasian (42%); Hawaiian (19%); Japanese/Chinese (14%); Filipino (9070); Black (6%). Contrary to popular Hawaiian myth, the majority (54%) of NGRI acquittees are life residents. Of those whose residency status is known, only 10% had lived in the state for less than 1 year. Because of its military importance, Hawaii has a large military presence; 3 (3%) of acquittees were servicemen. As is the case in other jurisdictions (Bloom, Rogers & Manson, 1982; Morrow & Peterson, 1966; Pasewark, 1986; Pasewark, Pantle, & Steadman, 1979; Phillips & Pasewark, 1980; Quinsey, Preusse & Fernley, 1975), the NGRI offense often does not represent the first encounter of acquittees with law enforcement agencies. Of the acquittees, 61 (57%) had incurred a prior arrest and 40 (37%) had been arrested previously for a felony. In all, 286 pre-arrests had been incurred by the 107 defendants and of these, 105 were felonies. Frequency of arrests ranged from 11 defendants with one arrest to a single defendant with 19 arrests. Prior arrests for the group averaged 2.67, while felony arrests 0.99. It was much more likely for males (60%) than females (27%) to have incurred a previous arrest. Specific pre-arrest charges are given in Table 1. In descending order of frequency among prearrest categories were crimes against property (42Vo), against public order (23%), against persons (17%), and drug offenses(l2Vo). Also, in agreement with studies reporting upon prior mental hospitalizations (Hawkins & Pasewark, 1983), a significant proportion (78%) of the acquittees IIn comparison to the few states able to report on the matter, this is a fairly high success rate for the plea. Comparable rates are: Maryland 16%; Michigan 5%; Montana 8%; Ohio 14%; South Dakota; 0% Vermont 27%; Wyoming Oslo (Pasewark & McGinley, 1985). Unfortunately, no extant investigation addresses the possible reasons for the wide variations observed between jurisdictions in the frequency and success rates of the plea.
286
BOGENBERGER, PASEWARK, GUDEMAN, and BEIBER
TABLE 1 Arrests Incurred Prior to Commission
of NGRI Offense
Arrests
Against person Murder Assault Rape/Sexual assault Robbery Harassment Terrorist threat Indecent exposure (Subtotal) Against property Burglary Criminal trespassing/Property damage Larceny Auto Theft Criminal loitering Desecration Forgery/Credit card (Subtotal) Against public order Escape Weapon Possession Disorderly Conduct Traffic Offense Parole Violation Promotion of Gambling Lewdness Simple Trespassing (Subtotal) Drug offenses Promoting illegal drugs Promoting intoxicating compounds Liquor-unspecified Driving under influence (Subtotal) Other offenses Unspecified
N
010
3 18 4 18 2 3
1.0 6.3 1.4 6.3 .7 1.0
(5:)
(17::)
36 6 56 11 2 1
12.6 2.1 19.6 3.8 .7 .3
(12:) 7 10 27 3 1 4 1 (::)
Total
(4:::) 2.4 3.5 9.4 1 .o .3 1.4 .3 (2;:;)
10 16 4
3.5 5.6 1.4
(3:)
(I: ::,
(13) 00 286
(4.5) 99.6
-
had not been hospitalized previously; and males were much more likely to have prior hospitalizations than females. Of the 100 males, 24 (24%) had previous hospitalizations while no female had been hospitalized. Prior hospitalizations ranged from 14 persons with one hospitalization to three with four admissions. Not reported in previous investigations are out-patient services received by
INSANITY ACQUIT-TEES
287
acquittees prior to the NGRI offense; and, it is found that 20% of the males and 43% of the females had received such out-patient care. NGR I Offense The most serious alleged crimes with which the 107 acquittees were charged are listed in Table 2. Comparable to other studies, Table 2 reflects a wide array of NGRI offenses. These range from murder to credit card fraud. Crimes against the person represent 52% of the charge with murder accounting for 22070, robbery 14%, and assault 9%. Property offenses contribute 36% with burglary most prevalent (21 (r/o)within this offense category. Psychiatric Evaluation Diagnoses. At the time of the court-ordered evaluation, 69 (64%) of the acquittees were accorded some type of psychotic diagnosis. Of these, 28 (26%) were diagnosed as paranoid schizophrenic; 27 (25%) as some other type schizoTABLE 2 NGRI Offenses of Acquittees Arrests
Against person Murder Manslaughter/Negligent homicide Assault Rape/Sexual assault Sex Abuse Robbery Criminal coercion (Sub-total) Against property Burglary Criminal Trespassing/Property damage Larceny Auto theft Credit card fraud (Sub-total) Public order Escape Weapon possession (Sub-total) Drug offenses Promoting illegal drug Driving under influence (Sub-total) Other offenses Total
N
o/o
24 2 10 2 2 15
22.4 1.9 9.3 1.9 1.9 14.0
(5:)
(52::)
22 4 8 4
20.6 3.7 7.5 3.7
(3:)
(36::)
3
2.8
(:)
(3:;)
288
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
phrenia; 3 (3Vo) as a major affective disorder; 3 (3010)as an organic psychosis; and 8 (7070)as some other type psychosis. Other diagnostic categories represented were personality disorders (7C70),mental retardation (60/o), neuroses (3%), alcohol abuse (1 Vo), and sexual deviation (1 Vo). One acquittee was found to be without mental disorder. In 17 (16%) cases, no diagnoses were indicated; and in 1 (1 olo) case, there was a disagreement among examiners regarding diagnosis. Evaluation on Issue of Insanity. In the 107 cases, a psychiatric opinion of insanity had been formulated for 91 (85%) defendants. In 9 (8.4%) instances, a defendant evaluated as sane was accorded an insanity verdict by the court. For five cases, no finding on the issue of insanity was rendered by examiners; and in two cases the examiners disagreed on the issue. This high level of concordance has also been reported for other jurisdictions by Steadman, Keitner, Braff, and Arranites (1983) and Rogers and Bloom (1984), as well as in a previous Hawaii investigation (Fukunaga, Pasewark, Hawkins, & Gudeman, 1981). Evaluations on Issue of Competency. On the issue of incompetency, there is a much lower level of agreement between findings during the evaluation and court decision on the matter. Of the 107 defendants, 48 (45%) had been evaluated as incompetent. However, the court ruled that only 16 (15%) were unfit to immediately stand trial. Agreement between the results of psychiatric evaluation and court ruling on the matter of incompetency obtained in only 61 (57%) of the cases (Table 3). Two possible explanations are offered to explain the low level of agreement between the examiners and the courts on the issue of competency. These are: (1) psychiatric evaluators are not sufficiently familiar with the criteria employed by the judiciary in determining competency; or (2) as a result of treatment or spontaneous remission, symptom severity of defendants are ameliorated substantially from the time of psychiatric evaluation to the time of court decision on the matter. This later phenomenon is, for example, quite common during involuntary hospitalization proceedings wherein an acutely disturbed individual is hospitalized under emergency hospitalization procedures. However, prior to court appearance, there is a remission of blatant symptoms resulting from treatment by psychotropic drugs or removal from the stress situation precipitating the symptoms. l)pe of Legal Representation Consistent with the large proportion of defendants who were unemployed at the time of the offense of concern, 92 (86%) were represented by public defenders or court appointed attorneys. Type of Court Procedure and Court Disposition As indicated previously, Hawaii’s criminal procedure law allows for a no1 prosecution insanity disposition prior to trial; and in 27 (25%) of the 107 cases, this procedure was utilized. Of the 80 (75%) cases that were tried, only 2 (2.5%) were by jury. The most common disposition made of acquittees by the courts was manda-
289
INSANITY ACQUITTEES
TABLE 3 Agreement of Psychiatric Opinion and Court Decision on Issue of Competency Court Decision Competent
Total
Incompetent N
%
5.6 9.3 00 2-F
57 48 2
53.3 44.9 1.9
14.9
107
100.0
Psychiatric Opinion
N
%
N
%
Competent Not competent No opinion
51 38 2
47.7 35.5 1.9
6 10 0
Total
91
85.1
Is
Of the 107 persons, 64 (60%) were hospitalized; 43 (40%) following trial and 21 (20%) as a result of the no1 prosecution procedure. Accorded acquittals with a conditional release stipulation were 35 (33%); 31 (29%) following trial and 4 (4%) by the no1 prosecution process. Eight (8%) of the acquittees were released without condition; 6 (60/o) following trial and 2 (20/o) by no1 prosecution.
tory hospitalization.
Subsequent Mental Health Admissions Excluding the hospitalization and mental health care ordered as a concomitant of the insanity acquittal or in conjunction with another criminal offense, 44 (41%) of the 107 acquittees, all males, were rehospitalized under civil statutes. In all, 182 civil post-hospitalizations were experienced ranging from 28 patients with a single subsequent hospitalization to 1 patient with 13 hospitalizations. Males were more likely to be rehospitalized than females. Of the 100 men, 44 (44%) experienced at least one post-hospitalization. None of the 7 females were rehospitalized. Of the 107 acquittees, 51 (48%) were later admitted to a public outpatient facility; 48 were males and 3 females. Number of admissions totaled 105. These ranged from 27 patients with one admission to one subject having 9 admissions. TABLE 4 Court Dispositions
Commit
Conditional Release
Release
N
%
N
%
N
%
Result of trial No prosecution
43 21 ----
40.2 19.6
31 4
29.0 3.7
6 2
5.6 12
Total
64
59.8
35
32.7
8
7.5
290
BOGENBERGER,
There was no difference in receiving out-patient mental The relatively high rate accord with the severity of suggests a group with fairly
PASEWARK,
GUDEMAN,
the proportion health services of mental care the diagnoses severe emotional
and BEIBER
of men (48%) and women (43%) (x2 = .07; p = .79; df = 1). services provided acquittees is in accorded defendants. Generally, it problems necessitating treatment.
Arrests Following Insanity Acquittal For the group as a whole, a relatively high rearrest rate was experienced. Of the 107 acquittees, 72 (67%) were arrested subsequent to the insanity adjudication and 60 (56%‘0) had been apprehended on a felony charge. In all, the acquittees had accumulated 362 arrests (M= 3.4). One female experienced two felony arrests. Frequency of arrest varied from 35 (33%) with no post-arrests; 21 (20%) with one arrest; 28 (26%) having a 2-5 apprehensions; and, 23 (22%) incurring 6-23 arrests. In contrast to studies in other jurisdictions (Pasewark, 1986) mean postarrests for males (3.4) did not differ significantly from that for females (2.7; two-tailed t = 1.9; p = .17). Postadjudication arrests by category are given in Table 5. It is of some interest that of the 64 defendants involuntarily hospitalized following an insanity verdict, 17 (27%) incurred a total of 44 arrests while still under hospital jurisdiction. Of these 44 arrests, 16 were for escape. For five of the rearrested acquittees, escape represented the only arrest incurred. The 12 acquittees rearrested for crimes other than escape experienced arrest under a variety of conditions, some on more than one occasion. Six were arrested for offenses committed while on escape or on leave without consent status; six were arrested after being granted conditional release by the court; three were arrested while on inpatient status; and three were arrested, (one acquittee eight times), while on convalescent leave or home visit status. Similarly, of the 35 acquittees granted conditional release following the insanity verdict, 11 experienced an arrest while under post-acquittal care and supervision. Essentially, results indicate that despite the provisions for hospitalization, mental out-patient treatment, and probation officer supervision, a relatively high rearrest rate was observed for NGRI acquittees. Although acquittees continue to experience rearrests following the NGRI verdict, the offenses for which they are arrested tend to be less serious than the NGRI offense itself. Thus, for example, Felony A offenses, the most serious offense category in Hawaii, constituted 36% of the NGRI offenses but only 7% of the post-arrests. Of the NGRI offenses, 52% were crimes against the person while only 17Vo of the post acquittal arrests are in this offense category.
Differences Among the Six Dispositional Groups Upon initiation of the study, it was anticipated that significant differences would prevail among defendants assigned to each of the six dispositional groups. For example, it was expected that in contrast to members of the “acquit and commit” group, defendants in the “no1 prosecution and commit” category would contain defendants who were primarily female; older; have more prior hospitalizations; have been diagnosed as more seriously mentally disturbed; have fewer pre-arrests; have been charged with a less serious NGRI offense; and
291
INSANITY ACQUllTEES
TABLE 5 Subsequent Arrests of Insanity Acquittees Arrests
Against person Murder Manslaughter/Negligent homicide Assault Sodomy Sexual assault Sexual offense Robbery Harassment (Sub-total) Against property Burglary Criminal trespassing/Property damage Larceny Auto theft Forgery/fraud (Sub-total) Public order Escape Disorderly Conduct Open Lewdness Criminal Possession Weapon Prohibitions Traffic Offenses Revoke Probation Criminal Tampering Criminal Loitering Impersonating Public Official Prison Contact Resist Arrest Promote Pornography (Sub-total) Drugs & Alcohol Promoting drugs Promoting intoxicating compounds Liquor law violation Driving under influence (Sub-total) Other offenses Total
N
%
3 1 22 1 1 1 24
.8 .3 6.1 .3 .3 .3 6.6
(6:)
(1 Z)
(15:)
12.2 7.2 18.8 1.4 2.2 (41.8)
50 23 7 2 1 2 2 1 1 1 1 1
13.8 6.4 1.9 .6 .3 .6 .6 .3 .3 .3 .3 .3
(9:)
(26: :)
28 11 4
7.7 3.0 1.1 1.4 (13.2) (2.5)
44 26 68 5
(4:) 0 362
100.4
292
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
would be more likely to be found incompetent by both the psychiatric evaluators and the court. However, for the most part, these speculations proved unfounded. To determine whether a significant association prevailed among the six dispositional types and subject characteristics, log linear analysis (Dixon et al, 1981) and post-hoc x2 tests (Nie, 1975) were conducted. Following these initial analyses, the six dispositional categories were collapsed into: (1) the three broader categories of “hospitalized,” conditionally released,” and “released without condition”; and (2) the two categories “acquitted by trial verdict” and “no1 prosecuted because of insanity.” Log linear analysis and post-hoc x1 tests were then applied to determine the significance of associations among these more inclusive categories and the variables considered. Resulting from these analyses, the following significant associations were found: 1. Those defendants, who were hospitalized following acquittal, were more likely to have had two or more prior felony arrests (x2 = 11.1; df = 1; p = .OOl). 2. Individuals diagnosed as psychotic at the time of court ordered evaluation were more likely to be acquitted as a result of trial (74%) than those defendants without a psychotic diagnosis (37%; x2= 12.7; df = 1; p = .0004). 3. Defendants with previous outpatient admissions were more likely to be acquitted as a result of trial (96%) than by means of the no1 prosecution procedure (4%; x2 = 10.1; df = 4; p = .04). 4. No significant association prevailed between type of attorney (i.e. private or public) and whether a defendant was hospitalized following acquittal. However, if represented by a private attorney, it was more likely that the acquittee would be released without condition (20%) than if represented by a public attorney (5%). If represented by a court-appointed lawyer, it was more likely (37% versus 7%) that the defendant be released with conditions (x2 = 11.7%; df= 5; p = .05). 5. Although no significant association is found between type of disposition and whether or not a defendant incurs a particular category of arrest (e.g. against person) following acquittal, those hospitalized accumulate more arrests for the combined categories of crimes against the person and property as opposed to the combined categories of public order and drug offenses than do persons released conditionally or without condition (x2 = 4.4; df = 1, p = .04). 6. Defendants hospitalized as a result of court disposition were more likely to have a subsequent out-patient admission, exclusive of that ordered as a condition of hospital release, than were defendants released or released conditionally (x2 = 4.7; df = 1; p = .03). Aside from these findings, no significant association prevailed between restrictiveness of disposition or type of court judgment (i.e., NGRI verdict following trial or no1 prosecution because of insanity) and the variables of age, sex, ethnicity, marital status, residency, military status, employment status,
INSANITY ACQUITTEES
293
number of prior or subsequent arrests, type of prior or subsequent arrest, number of prior or subsequent felony arrests, previous or subsequent hospitalizations, type of NGRI offense, or diagnosis at the time of psychiatric evaluation. Summary and Discussion Despite the ethnic and cultural differences between Hawaii and mainland jurisdictions, the picture of the Hawaiian NGRI acquittee corresponds fairly closely to that derived elsewhere (Hawkins & Pasewark, 1983). The portrait evolved is that of a male resident of the state, somewhat older than the general criminal defendant, of limited education, and with a poor employment record. Only a limited number of the defendants are likely to have prior mental health contacts of an in or out patient nature. However, a fairly large number have incurred prior arrests. The offense to which the acquittee pled insanity represented a wide gamut of crimes ranging from homicide to misdemeanors but the more serious crimes against the person are overrepresented. Based upon records and after the fact, it is difficult and perhaps dangerous to “second-guess” court decisions. Yet, if one accepts the underlying philosophy of the insanity plea from the mental health data available, it would seem that the insanity plea process operates fairly well in conformity to Hawaii’s statutory provisions. Generally, exculpated from criminal responsibility are those individuals who suffer from a severe mental disorder. Thus 22% of acquittees experienced prior hospitalization and a like proportion had received out-patient treatment. Most were accorded psychotic diagnoses and evaluated as insane at the time that the criminal act was committed by supposedly impartial court-appointed examiners. A large number were also evaluated as incompetent to stand trial. Similarly, after discharge from the court ordered mental health care following acquittal, a sizeable number were later admitted to public mental hospitals or out-patient facilities. In accord with the majority of publications reporting on the matter, a relatively high rate of criminal recidivism, as measured by arrests, was found subsequent to the insanity verdict. These rearrests tended though to be of a less serious nature than that offense to which the defendants pled insanity. This high rearrest rate occurred despite the fact that, upon being granted conditional release, acquittees were required by the court of jurisdiction to receive some type of out-patient mental health care and be subject to the supervision of an assigned probation officer. This finding is quite discrepant from that reported by Rogers and Bloom (1982) on the operation of Oregon’s Psychiatric Review Board in which follow-up services are also mandated for the conditionally released acquittee. Two possible explanations are offered for this observed difference. These are: (1) the PSRB does a more successful job in providing postacquittal care and supervision of acquittees than the procedure followed in Hawaii; or (2) the follow-up period in the present study is much longer than that in the Oregon study, and with longer release time for the Oregon acquittees, the presently observed differences will be minimized. Contrary to expectations, differences between members of each of the six dispositional alternatives available to Hawaiian courts were found to be minimal. In this respect the major finding is that, probably based on a perceived
294
BOGENBERGER,
PASEWARK,
GUDEMAN,
and BEIBER
threat to others, the court is most likely to order hospitalization for persons who have incurred a number of antecedent felony arrests. The data provide no clearly discernable rationale for the insanity judgment of no1 prosecution rendered by the courts. It is quite likely, but unknown at the present time, that the no1 prosecution judgement might represent an agreement between prosecution and defense that some type of insanity ruling is required in a given case. The matter of possible pre-trial agreements made between prosecution and defense is one that has not yet been addressed in the literature and is a topic that is certainly worthy of investigation. Interestingly, the restrictiveness of the disposition had no relation to subsequent rearrests. It was equally likely that acquittees committed, conditionally released, or released without condition would incur an arrest following the court verdict. With respect to the follow-up arrest data, our results are somewhat discouraging. They continue to raise questions, as expressed previously (Pasewark, Pantle, & Steadman, 1982), regarding the effectiveness of psychiatric treatment in ameliorating the criminal activities of many of the individuals constituting an NCR1 population. References Bloom, J., Rogers, J., & Manson, S. M. (1982). After Oregon’s defense: A comparison of conditional release and hospitalization. International Journal of Law and Psychiatry, 5, 391-402. Dixon, W. J., Brown, M. B., Engleman, L., Frane, J. W., Hill, M. A., Jennrich, R. I., & Toporek, J. D. (1981). BMDP Statistical Software. Berkely: University of California Press. Fukunaga, K., Pasewark, R. A., Hawkins, M., & Gudeman, H. (1981). Insanity plea: Inter-examiner agreement and concordance of psychiatric opinion and court verdict. Law and Behavior, 5, 325-328. Hawkins, M., & Pasewark, R. A. (1983). Characteristics of persons utilizing the insanity plea. Psychological Reports, 53, 191-195. Hodgins, S. (1983). A follow-up study of persons found incompetent to stand trial and/or not guilty by reason of insanity in Quebec. International Journal of Law and Psychiatry, 6, 399-411. Morrow, W. R., & Peterson, D. B. (1966). Follow-up of discharged offenders-‘Not guilty by reason of insanity’ and ‘Criminal sexual psychopaths.‘Journal of CriminalLaw, Criminology and Police Science, 57, 31-34. Nie, N. H. (1975). Statisticulpackugefor thesocialsciences. New York: McGraw-Hill. Pantle, M. L., Pasewark, R. A., & Steadman, H. J. (1980). Comparing institutionalization periods and subsequent arrests of insanity acquittees and convicted felons. Journal of Psychiatry and Law, 8, 305-316. Pasewark, R. A., & McGinley, H. (1985). Insanity Plea: National survey of frequency and success. Journal of Psychiatry and Law, 13, 101-108. Pasewark, R. A., Eantle, M. L., & Steadman, H. J. (1979). The insanity plea in New York State, 1965-76. New York State Bar Journal, 52, 186-189, 217-225. Pasewark, R. A., Pantle, M. L., & Steadman, H. J. (1982). Detention and rearrest rates of persons found not guilty by reason of insanity and convicted felons. American Journal ofPsychiatry, 139, 892-897. Pasewark, R. A. (1986). A review of research-on the insanity defense. Annals of the American Academy of Political and Social Science, 484, 100-l 14. Phillips, B. L., & Pasewark, R. A. (1980). Insanity plea in Connecticut. Bulletin of the American Academy of Psychiatry and the Law, 8, 335-344. Quinsey, V. L., Preusse, M., & Fernely, R. A. (1975). A follow-up of patients found ‘unfit to stand trial’ or ‘not guilty because of insanity.’ Canadian Psychiatric Association Journal, 20, 461-467. Rogers, J. L., & Bloom, J. D. (1982). Characteristics of persons committed to Oregon’s Psychiatric Security Review Board. American Academy of Psychiatry and the Law, IO, 155-164. Rogers, R., Seman, W., & Sampley, J. (1984). A study of socio-demographic characteristics of individuals evaluated for insanity. National Journal of Offender Theories and Comparative Criminology, 28, 3-10.
INSANITY ACQUITTEES
295
Spodak, M. K., Silver, S. B., & Wright, C. U. (1984). Criminality of discharged insanity acquittees: Fifteen year experience in Maryland reviewed. Bulletin of the American Academy of Psychiatry and the Law, 12, 373-382. Steadman, H. .I., Keitner, L., Braff, J., & Arranites, T. M. (1983). Factors associated with a successful insanity defense. American Journal of Psychiatry, 140,401-403.