Jeremy Jojola, 9 News investigative reporter, looked into the Aurora theater shooter's likely insanity plea in a great story from last night. He interviewed me as part of his investigation. Here is the video:
So, what exactly does it take for someone to be legally insane? Of course, no rational person would commit such a horrendous crime. But, being abnormal, or mentally ill for that matter, is not the same as being insane. Here is a breakdown of the definition for insanity in Colorado (C.R.S. § 16.8.-101.5):
1. The person must be "diseased or defective in mind." This is typically translated as having a mental illness (almost always a psychotic thought disorder like Schizophrenia or Schizoaffective Disorder). To be considered mentally diseased or defective, a condition must "grossly and demonstrably impair a person's perception or understanding of reality." Drugs and alcohol don't count, and neither does a diagnosis of Antisocial Personality Disorder. You can't be hammered and claim you were insane. Same goes with being a psychopath.
2. The person must have the "diseased or defective" mind at the time of the crime. It doesn't matter how psychotic he is right now. What matters is how psychotic he was at the time of the offense.
3. The person's significant mental illness (the diseased or defective mind) must cause the person to either be incapable of distinguishing right from wrong, or from being able to form "the culpable mental state of the crime charged." For the theater shooting, the culpable mental state is "knowingly," meaning he would need to be certain in his understanding that his actions were going to cause people to be murdered.
4. Look back at Bullet Point #3 again. Notice there is an 'either or' structure to it. If his mental illness caused him to not know right from wrong or be unable to form the culpable mental state, then he was insane at the time of the offense. He does not need to meet both of those criteria, just one of them.
5. "Moral obliquity" or "mental depravity" cannot lead to legal insanity. Roughly translated into English people can actually understand, this means a person who is a psychopath cannot be considered insane, even if his psychopathic nature leads him to be unable to understand right from wrong.
6. "Passion growing out of anger, revenge [,or] hatred" does not count either. Even when a person becomes extremely angry, blacks out in a blind rage, and loses the ability to form the culpable mental state, he is still legally sane.
And that is it. The legal definition of insanity in Colorado. To recap:
Insanity is a mental disease or defect that causes a person to not know right from wrong or not know that what he is doing will lead to an intended outcome. Drugs and alcohol don't count. Psychopathic tendencies don't count. Anger and revenge don't count.
If the theater shooter changes his plea to Not Guilty By Reason of Insanity, this is the definition his psychiatrist will use when evaluating him, and this is what the jury will use to make their decision in the case.
Thanks for watching-- Max Wachtel, Ph.D.