civil commitment and the criminal insanity plea in israeli law

Available online at www.sciencedirect.com

International Journal of Law and Psychiatry 31 (2008) 308–318

Civil commitment and the criminal insanity plea in Israeli law☆

Josef A. Toib ⁎

University of Virginia, USA

Abstract

In Israeli jurisprudence there is a substantial difference towards mentally ill patients between the civil and penal law systemsthat goes well beyond differences required by their separate objectives. Mentally ill people dangerous to others due to their illnessbelong in the hospital, not in the community or in jail. The data gathered especially for this paper make it hard to escape theconclusion that contemporary practice in Israel does not accord with this objective. On the civil front, inaccuracy in predicting whois dangerous may lead to involuntary commitment of people who are not dangerous. On the criminal side, too few people are sentto the hospital in Israel and correspondingly too many to jail. Comparison with US data and practice shows that on the civil sideprediction has been improved by using actuarial methods, while on the penal side more up to date definitions of mental illness havebeen adopted. Whatever the appropriate solution for Israel, surely the first requirement is recognition of the problem.© 2008 Published by Elsevier Inc.

1. Preface

Jacob is a mentally ill patient diagnosed as suffering from Schizophrenic Disorder, Paranoid Type. He is living at hisfather's apartment in Tel-Aviv. Recently, he told his sister that he thinks his father is plotting to kill him. In self-defense, he isthinking of killing his father first with a kitchen knife. It may be assumed that there is a causal relationship between Jacob'smental illness and the danger he presents to his father. If Jacob is stopped while he is raising the knife, he will probably becivilly committed on the grounds that he is dangerous to others. However, if Jacob is caught a second after he stabs his father,he will probably be sent to prison because his insanity plea will not be accepted.

This fictitious example highlights the main claim of this paper: The Israeli legal system treats mental patients in thecivil and criminal fields differently in situations where they ought to be treated alike.

In this paper, I will first present and discuss current Israeli mental health law in both the criminal and the civil fields.Thereafter, I will present data concerning the application of the law in each of these fields as it stands. Next, I willpresent possible explanations for these results, and in order to contextualize the data I will present similar researchconducted in the U.S. Finally, I will conclude with some overall comments as to the possible uses of my results.

☆ Presented at the XXIXth International Congress of Law and Mental Health, July 2-8, Paris.⁎ Tel./fax: +1 973 376 6245.E-mail address: [email protected].

0160-2527/$ - see front matter © 2008 Published by Elsevier Inc.doi:10.1016/j.ijlp.2007.11.012

mailto:[email protected]

http://dx.doi.org/10.1016/j.ijlp.2007.11.012

309J.A. Toib / International Journal of Law and Psychiatry 31 (2008) 308–318

2. Civil law

2.1. Civil commitment in Israel — The law and its implementation

Israeli civil commitment arrangements can be found in the “Treatment of Mental Patients Law” of 1991 (TMPL)which establishes a medical model which relies on psychiatrists' decisions.1 This stands in contrast to the practice ofU.S. jurisdictions which apply a legal model in which the Court determines the necessity of the commitment.

In order to civilly commit a person, then, Israeli law and Courts demand that each of these four conditions be met:

a. The person suffers from a distinct “mental disease” that, in fact, impairs his judgment or sense of reality,b. The person presents an immediate threat to himself and/or to others,c. There is a causal relationship between a and b, i.e. the danger derives from the mental illness,d. The person refuses to commit himself.

The first of these four conditions requires a definition of “mental illness”.2 There is no such definition within the lawitself. Until recently, the interpretation of this condition by the courts was very specific, depending on the particularcase that was brought before them.3 Recently, the courts moved forward, ruling that “mental illness” refers to realillness, in the sense of psychosis, and not to any mental disorder, no matter how severe.4 Before this ruling, thedistinction between mental disorder and mental illness was used de-facto, on a case-to-case basis. Unfortunately, theclassic distinction between mental illness5 and mental disorder was abolished in the last editions of both the DSM-IV(1994) and the ICD-10 (1992) leaving only mental disorder as a general term to include all “mental abnormality”.6

Along with the mental illness, the mentally ill person must suffer from an impairment that affects his judgment orsense of reality. This impairment was interpreted by the courts as a state of psychosis or “psychotic disease” thatseverely damages the person's sense of reality and his judgment.7 The use of the terms “psychotic disease” and“neurotic disease” were adopted by the Israeli courts in the early 1960s,8 when these definitions were used by thepsychiatric discipline to distinguish between different states of mental pathology.9 These definitions, as mentioned

1 Treatment of Mental Patients Law, 1991, S.H. no. 1339, p. 58.2 This definition of “mental illness” is tautological and was criticized by the courts: Cr.A. 2111/93 Yosef Avineri v. The State of Israel 48(5) P.D. 133

Section 7 of the verdict. Cr.A (B.S.) 747/97, The state of Israel v. The psychiatric committee, Takdin (D.C.) 98(1), 525, Section 14 of the verdict.The samedefinition of “mental illness”was incorporated in the former law and was harshly criticized by scholars, see, Uri Aviram, Dan Shnit,Psychiatric treatmentand civil liberties — The involuntary hospitalization of mentally ill persons in Israel (Zmora, Bitan, Modan – Publishers, Tel-Aviv 1981) pp. 66. AdiParosh, The legal justifications for involuntary civil commitment— The legal situation and the changes needed in the future, Mishpatim 13 pp. 377, 387.3 In one case it was held that schizophrenia is a “mental illness” as designated by the law: A.Sh. (T.A.) 1025/92, Plonit v. The Attorney General,

Takdin (D.C.) 92(3) 54 Section 2 and 8 of the verdict. Note that “Plonit” and “Plony” are the Israeli equivalents of “Joan Doe” and “John Doe” inUS legal usage. In another case, it was held that a person who suffers from a “delusional and psychotic state” is suffering from mental illness: A.Sh(T.A.) 2372/99, Plony v. The Attorney General, Takdin (D.C.) 99(3) in Section 16 and 22 of the verdict. In a third case, it was decided that a personthat suffers from a “paranoid and psychotic state” is suffering from mental illness: A.Sh (T.A.) 227/00, Plony v. The Attorney General Takdin, (D.C.)2000(2) 29658 in Section 1 and 5 of the verdict. In a fourth case, it was held that a person that suffers from a “psychotic disease” is suffering frommentalillness: A. Sh (T.A.) 432/00, Plony v. The Attorney General Takdin, (D.C.) 2001(1) 700 in Section 2 of the verdict.4 A.Sh (T.A.) 1171/03, Plony v. The psychiatric committee, (not published) Takdin (D.C.) in Section 8–9 of the verdict.5 The group of “mental illness” included: schizophrenia, paranoia, schizoaffective disease and the group of the affective disorders.6 ICD-10 — The classification of mental and behavioral disorders, WHO, Geneva, 1992, pp 5: “The term ‘disorder’ is used throughout the

classification, so as to avoid even greater problems inherent in the use of such terms as ‘disease’ and ‘illness’. Disorder is not an exact term, but it isused here to imply the existence of clinically recognizable symptoms or behavior associated in most cases with distress and with interference withpersonal dysfunction”. DSM–IV-TR, American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition(American Psychiatric Association, Washington DC, 1994) pp. xxxi: “Moreover, although this manual provides a classification of mental disorders,it must be admitted that no definition adequately specifies precise boundaries for the concept of ‘mental disorder’”.7 Yosef Avineri v. The State of Israel, supra note 2, in Section 8 of the verdict. A.Sh (T.A.) 1171/03,Plony v. The psychiatric committee, (not published) Takdin (D.

C.) in Sections 8–9 of the verdict.A.Sh (T.A.) 432/00,Plony v. The psychiatric committee, (not published) Takdin (D.C.) 2001(1), 700 in Section 2 of the verdict. A.Sh (T.A.) 2372/99, Plony v. The psychiatric committee, (not published) Takdin (D.C.) 1999(3), 5891 in Sections 16 and 22 of the verdict.8 Yosef Avineri v. The State of Israel, supra note 2, in Section 8 of the verdict. Cr.A. 172/62; 181/62 , Yosef Garame v. The Attorney General, 17(2)

P.D. 925, 934–935, 939–940. Cr.A. 187/61, Aliza Phano v. The Attorney General, 16(5) P.D. 133 1109.9 American Psychiatric Association, Diagnostic and Statistical Manual — Mental disorders, 1952, Washington D.C. PP. 1 (DSM-II). Harold I.

Kaplan, M.D. Benjamin J. Sadock, M.D., Synopsis of psychiatry— Behavioral sciences/clinical psychiatry, 8th ed. Lippincott Williams & Wilkins,Baltimore, pp. 302–303.

Table 1People committed in Israel due to mental illness

Danger/year 2000 2001 2002

n % n % n %

Danger to self 74 28.24 88 32.2 89 30.9Danger to others 103 39.31 105 38.5 121 42.0Both 85 32.44 80 29.3 74 25.7Not specified 0 0 0 0 4 1.4Total 262 100 273 100 288 100

310 J.A. Toib / International Journal of Law and Psychiatry 31 (2008) 308–318

above, have been replaced in psychiatric practice during the early nineties by the general term “mental disorder” due toinability to set clear boundaries between “mental illness” and “mental disorder”.10

A look into the definition of mental illness used in the American jurisdictions indicates that all the States require thatthe person be generally diagnosed as suffering from “mental illness” or “mental disorder” without stating the nature ofthe disorder that justifies the commitment. This definition does not include persons who are diagnosed as sufferingfrom Antisocial Personality Disorders.11 The American definition is therefore broader than the Israeli one by includingmental disorders in addition to mental illness.

The second condition for civil commitment demands that the person, as a consequence of his “mental illness”,present an immediate threat to himself and/or to others. The same condition is used by the American jurisdictions.12

The third condition for civil commitment requires a causal relationship between the fact that the person is mentallyill and that he/she is dangerous. This condition seeks to ensure that the deprivation of liberty be enforced only onpersons that are dangerous due to their mental illness.13 Similar criteria of danger to oneself or to others are used byAmerican jurisdictions.14

The final condition for civil commitment demands that the procedure of civil commitment be imposed only on personswho otherwise refuse to be committed. The mentally ill must have the opportunity to commit themselves voluntarily.

2.2. Data on civil commitment in Israel

In the Statistical Annual of Mental Health,15 the Ministry of Health reports data on the civil commitment of mentallydisabled persons on a yearly basis. These Statistical Yearbooks provide an overview of the number of mentally disabledpersons that are committed annually, and include both compulsory and voluntary admissions. However, it has not beenpossible to ascertain from these Statistical Yearbooks, or from any other source, the number of people who arecommitted because they are considered to be a danger to themselves, to others or both.

2.3. Methods

In order to determine the ratio between the different causes for commitment (danger to oneself and danger to others), I decided tocollect a random sample of 5% of all the files opened during the years 2000–2002. These files recorded cases in which the DistrictPsychiatrist was asked to make a decision regarding commitment.16

Every 20th file (5%) of the relevant years was checked. If the person was committed, the reason for the commitment was noted. Incases where no order was issued, the next selected file was examined (i.e. 20 files further along). In the case of more than one

10 See supra note 6.11 Bruce J. Winick, Civil commitment — A therapeutic jurisprudence model (Carolina Academic Press, Durham North Carolina, 2004), pp. 48–49. Ralph Reisner, Christopher Slobogin, Arti Rai, Law and the mental health system — Civil and criminal aspects (4th ed. West, a ThomsonBusiness, Minnesota 2004) p. 688. (hereinafter “Reisner, and Slobogin”). A.Weiner, J.D., Robert M. Wettstein, M.D., Legal issues in mental healthcare, (Plenum Press, New York, 1993) p.48.12 Reisner, and Slobogin, supra. Note 11 pp. 689, 742.13 Other dangerous people (criminals for instance) are presumed to have an ability to control their actions. The fact that they are dangerous shouldnot result in imprisonment as long as they do not carry out any harmful action.14 Reisner, and Slobogin, supra. Note 11 pp. 712, 742.15 Hereinafter — “The Statistical Yearbook”.16 Since the total number of persons who were hospitalized is published in the Statistical Yearbook a random sample of 5% is of sufficient size forthis paper's purposes.


commitment order per year in a single file, it was determined whether these orders were an extension of the first commitment or werenew commitment orders. Only new commitment orders were counted.

2.4. Results

2.4.1. The rate and percentage of persons committed according to commitment criteriaTable 1 presents the number of commitment orders and their percentage in the random sample.17

The data in Table 1 show that, in the years 2000 to 2002, a plurality of the patients (around 40%) were committed because theywere considered a danger only to others (without also being danger to themselves). Approximately 30% of the patients werecommitted because they were considered only a danger to themselves (without being also a danger to others), and another 30% werecommitted because they were considered a danger both to others and to themselves. It is worth noting that the rate of patients whowere committed on account of danger to others as compared to the rate of patients committed because they were considered a dangerto themselves was found to be approximately 10% higher. Thus approximately 70% of the patients were dangerous to others and60% were dangerous to themselves.

2.5. Discussion

2.5.1. The legitimacy of the “danger to others” criterionThe Statistical Yearbooks show that, in the year 2000, the District Psychiatrists issued 3247 commitment orders.18

In the year 2001, the number of commitment orders was 334919 and, in 2002, the number of orders was 3888.20 This isan annual average of 3494 commitment orders.

In order to assess how many patients are dangerous to others, it is necessary to examine the psychiatrists' abilities toaccurately predict future danger. This might be indicated by an examination of situations in which a person undergoespsychiatric evaluation prior to being committed.

A few years ago, just such a study was conducted in Israel. The study examined, over a seven-month period, theaccuracy of psychiatric evaluations in predicting future danger before a commitment decision was made. Theresearchers compared 99 forms that were used to admit patients in the emergency room.21 These forms were filled outby Residents who examined these persons. In these assessment forms, the Residents were asked to assess on a 5-pointscale (0, 25, 50, 75, or 100%) the chance that a person would be violent to others. They could also mark “unknown”.

This study indicates that the total accuracy of the residents staffing psychiatric emergency rooms stands at 61%. Thisfigure means that six out of ten patients predicted to be violent were actually violent during their commitment at thehospital. It is interesting to note that, although residents' abilities to predict violence was only modestly better than 50%,their confidence in these predictions was high. They report that they are “certain” of their predictions in 90% of the cases.22

This study does have methodological problems. First, it can be assumed that some of the patients that acted violentlydid so in response to what they perceived were illegitimate attempts to commit them rather than due to mental illness.Second, at least a few of the patients were less violent because of the medication that they received while committed.Note that these effects operate in contrary direction and thus offset each other.

Nevertheless, other similar studies record similar rates. The best known study which examines the ability ofpsychiatrists to predict patients' violent behavior was conducted in the mid-1990s by Charles Lidz and hiscolleagues.23 Their results showed that 53% of the patients assessed by psychiatrists as likely to be violent wereactually violent when discharged into the community. This rate is close enough to the rate found by Rabinowitz and his

17 In the year 2002 there were 4 commitment orders (1.4%) which did not specify the reason for the commitment. This is statistically insignificant.18 Ministry of Health, Mental Health Services, Department of Information and Evaluation,Mental Health in Israel, The Statistical Yearbook, 2001, p. 72.19 Ministry of Health, Mental Health Services, Department of Information and Evaluation, Mental Health in Israel, The Statistical Yearbook 2002, p. 75.20 Ministry of Health, Mental Health Services, Department of Information and Evaluation, Mental Health in Israel, The Statistical Yearbook 2003, p. 69.21 Jonathan Rabinowitz, Rachel Garelik-Wyler, Accuracy and confidence in clinical assessment of psychiatric inpatients' risk of violence,International Journal of Law and Psychiatry (1999) vol. 22, no. 1, pp. 99–106.22 Data on patients who were violent but predicted not to be so are not readily available, for many of them are not evaluated: they are only seenonce the are violent, not before. Thus, we have numbers on “false positives” but not on “false negatives”. We might have some data of this sort, if itwere possible to track those patients evaluated but not committed who later turned out to be violent. As far as this author knows, no such studyexists with regard to Israel.23 Charles W. Lidz, PhD; Edward P. Mulvey, PhD; William Gardner, PhD, The accuracy of predictions of violence to others, 296 J. AM. MED.ASSN, February 1007 (1993).


colleagues in their study to lend the latter credence, provided the circumstances in both countries are sufficientlysimilar.24

The research by Rabinowitz and his colleagues was conducted in the emergency rooms in Israel. It is comparable tothe Lidz results because in the U.S. and in Israel the training of residents is similar, the definitions of mental disordersare the same, the way patients are assessed are the same and the overall practice in ERs are the same. Hence, thecircumstances surrounding both studies appear indeed to be similar. We conclude, then, that the results of these twostudies suggest that the psychiatrists' abilities to predict violent behavior are limited.25

It is possible, then, to project from these data that only 60% of the persons deemed to be violent would actually havebeen dangerous. Approximately 2400 persons were committed during the years of the survey. 60% of that numbersuggests approximately 1440 persons were actually dangerous. Correspondingly, some 1000 persons wereinvoluntarily committed who were actually not dangerous to others.

3. Criminal law

3.1. The Israeli insanity plea — The legal framework and related data

Section 34H of the Israeli Penal Law sets the framework for the insanity plea.26 The Israeli courts define this sectionvery narrowly by accepting the insanity plea only when all of the following conditions are fulfilled:27

1. The defendant was suffering from “a disease that adversely affected his spirit (“mind” J.A.T) or because of a mentalimpediment”, i.e. the defendant was suffering only from mental illness28 or from a “mental impediment”.29 Thedistinction between “mental disorder” and “mental illness” customary in civil commitment proceedings also appliesto the insanity plea. In order to benefit from the insanity plea, the defendant must prove that he was suffering from“mental illness” according to the “classical” definition: “mental disorder” alone is not sufficient.30

2. The defendant's mental illness or mental impediment must result in a lack of any real ability:

a. “…to understand what he did or the wrongful nature of his act”. This is a cognitive test that examines if the defendantunderstands the morality underlying his act i.e. whether he can distinguish between right and wrong.31 The well knownIsraeli Scholar, Professor S.Z. Feller explains that the cognitive test is based upon two sub tests:The first test focuses on theability of the person to understand the physical nature of his act. Amentally ill person is not able to comprehend themeaningof his act, e.g., a person throws an object in the air with no expectation that this object will fall; a person decapitates anotherperson in order to assemble the head on someone else's body.The second test focuses on the person's ability to perceive thewrongfulness of his deeds.Amentally ill person has committed an act of violence because of his inability to understandwhythe act is forbidden. The violent act, in this case, is not committed out of ignorance of social behavioral codes or lack ofwillingness to conform to the values of the society. For example, a mentally ill person goes out into the street unclothed,believing that everyone else is free to act the same way.32

24 Strictly speaking a statistical analysis of the difference between the two percentages should be undertaken, however, that level of precision is notrequired for the purposes of this paper.25 ApparentlyLidz's study is one of two studies conducted in order to check the validity of prediction of violence in the community— see JohnMonahan,A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators and Patients, 92 Va. L. Rev. 391, 407.26 Section 34H to the Penal Law 5737 — 1977 Forth Edition.27 For example see: Cr.A. 7761/95 Abu Hamed v. The State of Israel 51(3) P.D. 245, 250.28 See Abu Hamed v. The State of Israel, supra. Note 28. pp. 245, 250.29 “Mental impediment” was interpreted by the courts both as mental retardation or mental impediment caused by brain diseases or accidents whichseriously impair mental ability.30 See supra notes 5 and 6.31 This test is based upon the M'Naghten rules, which were developed in the nineteenth century as a consequence of the trial of Daniel M'Naghten.M'Naghten, after killing the Prime Minister's secretary, mistakenly thinking he was the Prime Minister, was charged with murder. During his trialhe was diagnosed as suffering from delusions of persecution symptomatic of paranoid schizophrenia, and eventually was acquitted by reason ofinsanity. Richard J. Bonnie, Anne M. Coughlin, John C. Jeffries, JR. Peter W. Low, Criminal law, (3rd ed. The Foundation Press, Inc, New York1997) pp. 449-451.32 Feller, Shneur Zalman, Fundamentals in criminal law (The Harry and Michael Sacher Institute for Legislative Research and Comparative Law,The Hebrew University, Faculty of Law, Jerusalem 1984) Vol. 1 pp. 665.


b. “…to abstain from committing the act”. This is a volitional test which measures the defendant's ability to control hisacts, even when he grasps that his deeds are unlawful. The volitional test was accepted by the Israeli Supreme Courtin the 1950s.33 Almost forty years later, the volitional test was added to Israeli Penal law.34 In his explanation of thenature of this test, Professor Feller clarifies that, even if a defendant's perception of reality is intact, the person stillmight not be held criminally responsible. A disruption of his mind might have forced him to commit a violent act(i.e. a person is ordered by God to set something on fire, or to eliminate someone in order to save the human race).35

The Israeli courts have ruled that the purpose of the phrase “…lacked any real ability…” is to stress that symptoms ofmental illness should be total, in comparison to less severe symptoms.36 Therefore, the insanity defense is relevantonly in cases where the defendant is suffering from a “defined and concrete mental illness”, and not from “mentalproblems” that do not reach “mental illness designated as psychosis”.37 Furthermore, in order to establish the insanitydefense there must be a causal relationship between a state of psychosis deriving from mental illness and the allegedoffense.

The American formulation of the insanity defense varies from State to State. The General outline of the defense issimilar to the Israeli one i.e. the defendant committed the alleged offense due to a severe mental disorder that affects hisability to understand what he is doing (and in some jurisdictions to control his behavior). Although similar in its generalstructure, the U.S. version of this defense is different in some major aspects from the Israeli one.

The first aspect is related to the definition of “mental disorder” that qualifies the defendant to benefit from theinsanity defense. The definition of “mental disorder” is somewhere in-between any mental abnormality that causes thelack of understanding or control38 and “severe” mental disease that excludes non psychotic episodes.39

The second aspect is related to the elimination of the Volitional Test that asks to examine the defendant's ability torefrain from committing the act. In 1984, as a consequence of Hinckley's acquittal, the U.S. Congress adopted aninsanity test that did not include a volitional test. By adopting the new legislation the Congress abolished the reliance ofthe Federal Court on the Volitional Test embraced by the Model Penal Code.40

The third aspect is concerned with changes made in the mid 1980s regarding the way in which the insanity defenseshould be handled during the trial. One introduced a change in burden of proof — today instead of the prosecutionproving the defendant is sane, two thirds of the U.S. jurisdictions demand that the defendant prove that he was insane.41

The second change relates to narrowing the psychiatric expert testimony to only the defendant's mental state and thediagnosis attributed to him without allowing him to testify on other “legal” concepts.42

The last aspect is related to the general attitude of different U.S. jurisdictions towards the essence of the insanitydefense and the changes made in the mid 1980s as a consequence of changes in this attitude due to Hinckley's acquittal.One approach, which was taken by Montana, Idaho and Utah, led to the complete abolition of the insanity defense.Another approach, which was adopted by a quarter of the States, added an additional alternative43, that of declaring thedefendant as “Guilty but Mentally Ill”. This alternative results in the defendant's conviction and sending him fortreatment.44

33 Cr.A. 118/53 Mandelbrot v. The Attorney General, 10 P.D. 281.Cr.A. 186/55 Mizan v. The Attorney General, 11 P.D. 769.34 It must be mentioned that some scholars argue that the volitional test is not independent, because, whenever a person's ability to control himselfis affected the person suffers from cognitive impediment. Therefore, there is no place for an independent volitional test. See Richard J. Bonnie,LLB, Morality, equality, and expertise: Renegotiating the relationship between psychiatry and the criminal law, Bulletin of the American Academyof Psychiatry and Law, vol. 12, no. 1, 1994, 5, p. 16.35 See Feller, supra. Note 32, p. 665.36 Cr.A. (Hi) 163/94 The State of Israel v. Hosam, Takdin (District) 96(1), 925, 946.37 Cr.A. 228/76 Bottel v. The Attorney General, 17 P.D 1105, 1109. Cr.A. 423/89 Sason v. The State of Israel 44(4) P.D. 824, 828. Cr.A. 5031/01Plonit v. The State of Israel (not published yet) in Section 8 of the verdict.38 Wayne R. LaFave, Criminal Law (4th ed. Thomson–West, 2003) p. 377.39 Reisner, and Slobogin, supra. Note 11 pp. 545–546. Reisner, and Slobogin also stating that the interpretation given to the definition of “mentaldisorder” is broader when used in correlation with the cognitive test than with the volitional test.40 Richard J. Bonnie, John C. Jeffries, Jr. Peter W. Low, A case study in the insanity defense— the trial of John W. Hinckley, Jr. (2nd ed. New YorkPress, New York, 2000) pp. 127–131 (hereinafter “Bonnie and his colleagues”). Reisner, and Slobogin, supra. Note 11 pp. 535–536.41 Bonnie and his colleagues supra. Note 40 pp. 132–133. Reisner, and Slobogin, supra. Note 11 pp. 536–537.42 Bonnie and his colleagues supra. Note 40 pp. 133–135.43 The typical alternatives are: acquittal, acquittal by reason of insanity, and conviction.44 Bonnie and his colleagues supra. Note 40 pp. 135-137, 131-132.

Table 2Israeli criminal cases and cases involving mental health issues

Year 2000 2001 2002

Total cases a 112400 117042 122011Estimated no. of insanity pleas and competency to stand trial that were raised a 841 1121 1339Commitment orders (insanity + competency that were accepted) a 485 587 671Number of insanity pleas b 59 70 105a Based on the data received from the judicial authority.b Based on the date received from the health ministry.


The conclusion that might be derived from this summary is that in comparison to the Israeli Insanity Defense, theAmerican formulation is much narrower.

3.2. Data on the insanity defense in Israel

In order to learn about the use and acceptance of the insanity defense in Israel, it was necessary to process data inexistence but not previously analyzed. Both the Health Ministry and the Judicial Authority45 maintain data on criminalinsanity. From this source, the author, in previous work,46 extracted the annual number of criminal cases tried, thenumber of cases in which the insanity plea was raised, the number of cases in which the plea was accepted, the numberof cases in which competency47 to stand trial was raised, and the number of cases in which it was accepted. These datado not constitute a sample, but include the entire population.

4. Results

Table 2 illustrates that an average of 117 thousand criminal cases are decided annually. Out of these, either or both insanity pleasand competency to stand trial are raised in an average of 1100 cases, and are accepted in half of these cases. The insanity plea alone isaccepted on average in only 78 cases each year.48

The data presented in Fig. 1 indicate that during each year surveyed, the average rate of insanity pleas and competency to standtrial barely comprise 1% of all criminal cases. The rate of the cases in which either or both pleas were accepted stands at no more than0.5%, and the rate of cases in which the insanity plea was accepted by itself averages 0.07% of all criminal cases.

In order to contextualize these data, it is useful to check these rates in the U.S. The American data are the result of a studyconducted by Professor Henry Steadman and his colleagues.49 This is the most comprehensive study ever conducted on the insanityplea in the U.S. The initiative to conduct this research came after John Hinckley made an attempt on the life of President RonaldReagan in 1981. At the end of the trial, Hinckley was found Not Guilty by Reason of Insanity by a jury. This acquittal caused suchoutrage among the public that legislators in most States of the Union were moved to change some aspects of the formulation of theinsanity defense in order to lower the number of insanity-based acquittals. In this study, researchers checked the effect these changeshave had on the rate of insanity acquittals. They sampled four States for a period of ten years before and after Hinckley's acquittal.

Steadman and his colleagues found that the insanity defense was raised in almost 1% (0.93%) of the cases, which is higher thanthe Israeli rate. Israeli data show the insanity plea and competency to stand trial together were raised in 0.9% of all cases. Therefore,the rate of the insanity plea alone is lower than that in the U.S. The picture becomes even clearer when we consider the rate ofinsanity pleas that were actually accepted. In the U.S., the average rate stands at around a quarter of a percent (0.23%); in Israel thisrate is three times lower, an average of 0.07% of all cases.

45 The Judicial Authority is the body charged with the administration of the Israeli courts.46 Toib, J.A. “Law and psychiatry a comparison between the psychiatric/legal definitions found in Israeli law and the corresponding definitions incontemporary psychiatry”, Doctoral Dissertation submitted to the Hebrew University of Jerusalem, December 2005.47 The criteria for accepting a lack of competency to stand trail is that the defendant can not defend himself due to mental illness of which he suffer- see Section 2 to the TMPL, supra note 1.48 In 2002, there was a sharp increase in the number of insanity pleas that were accepted in comparison with the previous years. In order todetermine whether this represents a tendency over the years to accept more insanity pleas, or whether this was a one-time-only increase, I examinedthe total number of insanity pleas that were accepted in 2003. These data reveal that 69 insanity pleas were accepted in 2003. This numberstrengthens the assumption that in 2002 there was a temporary sharp increase in the number of insanity pleas accepted.49 Henry J. Steadman, Margaret A. McGreevy, Lisa A. Callahan, Pamela Clark Robbins, Carmen Cirincione, Before and after Hinckley —Evaluating insanity defense reform (The Guilford Press, New York, 1993).

Fig. 1. Comparison of cases that involve mental health issues (in percent of total cases).


It could be suggested that the difference in rates between these two countries is a consequence of major differences in theirjudicial systems, in which case a contextualization is useless. However, both countries have a common-law system that developedfrom English common-law. The Israeli insanity defense is similar in essence to the formulation of the insanity defense in Section1.04 of the Model Penal Code.50 Secondly, after the acquittal of Hinckley, most of the States in the U.S. changed their laws,abandoning the Model Penal Code formulation in order to narrow the defense and lower the number of acquittals. Therefore, thereshould be proportionately fewer insanity defense instances in the U.S. than in Israel. The opposite shows up in the data.

One might also suggest that the difference between rates results from the fact that there are no juries in the Israeli penal system.According to that line of thought, professional judges are harder for the defendant to manipulate into accepting the insanity plea thanjuries. Although this argument might sound appealing, it is not borne out by the facts. The data indicate that the vast majority ofinsanity cases in the U.S. are decided by judges, either through bench verdicts or by accepting a plea bargain without a jury.51

Steadman and his colleagues sampled only felonies, while the Israeli data cover all types of offenses. This difference, however, hasonly a negligible effect on the outcome, due to the fact that the vast majority of the criminal cases tried in U.S. courts are felonies andnot misdemeanors.52 The length of punishment for misdemeanors is another reason for not raising the insanity plea. The maximumpunishment for misdemeanors is no more than a year of imprisonment and the average length of commitment is usually greater thanthe length of imprisonment.53 A study of the rate of insanity plea acceptance in misdemeanors discovered that this rate stands at lessthan 10% of the total number of insanity pleas.54 All of these considerations reinforce the feasibility of this contextualization.

Finally, one could hypothesize that the existence of capital punishment in the U.S. and its absence in Israel affects the acceptanceof the insanity defense. However, the Steadman data show that excluding murder cases makes no qualitative difference to the resultof the comparison between Israeli and U.S. data, as will be shown in what follows.

50 Bonnie et. al. supra. Note 31 Appendix A-12.51 Steadman et al. supra note 49 pp.32–44, 81, 71–72, 128. Paul S. Appelbaum M.D., Almost a revolution –– Mental health law the limits ofchange, (Oxford University Press, New York 1994) Ch.5 pp.190.52 Caseload highlights, examining the work of the State Courts, Neal Kauder, author, Vol. 2 (1) p.1. http://www.ncsconline.org/D_Research/CSP/Highlights/HIGHLITE.PDF (last visited 5.9.05).53 Michael L. Perlin. “The borderlinewhich separated you fromme”: The insanity defense, the authoritarian spirit, the fear of faking, and the culture ofpunishment, 82 lowa L. Rev (1997), pp. 1375, 1423.There is even a notion that raising the plea for a misdemeanor could lead to a malpractice suitagainst the lawyer: “Some Lawyers even suggest it would constitute malpractice to advise a mentally ill client charged with a misdemeanor to plead the[insanity] defense” SJR 381Not Guilty by Reason of Insanity, Report of The Virginia State Crime Commission, Commonwealth of Virginia, Richmond,May 2002 pp.4. http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD312004/$file/RD31.PDF (last visited 5.9.05).54 Carmen Cirincione, Charles Jacobs, Identifying insanity acquittals: Is it any easier?, Law and Human Behavior,(1999) vol. 23(4) pp.487, 492.

http://www.ncsconline.org/D_Research/CSP/Highlights/HIGHLITE.PDF

http://www.ncsconline.org/D_Research/CSP/Highlights/HIGHLITE.PDF

http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/RD312004/0ile/RD31.PDF

Fig. 2. Cases of competency and insanity and severity of offense.


4.1. The relation between the insanity plea and the severity of the offense

It is useful to examine the relation between the severity of the offense and the insanity plea. Fig. 2 presents the number of cases inwhicheither or both insanity pleas and competency to stand trial were accepted, divided into sub groups according to the severity of the offense.

Fig. 2 illustrates that the vast majority of cases in which either or both pleas accepted were misdemeanors. Amisdemeanor in Israel isan offense that deserves less than three years of imprisonment. The second largest group are crimes designated as an offense that deservesmore than three years of imprisonment and less than ten years,55 and the least number are the severe crimes which are designated as anoffense that deservesmore than ten years of imprisonment.56 The number of cases of severe crime inwhich either or both pleas have beenaccepted is extremely low.

More is revealed by examining the ratio between competency to stand trial and insanity pleas and the ratio between inpatient andoutpatient commitments.

Fig. 3 demonstrates that more competency to stand trial than insanity pleas have been accepted. The ratio between competencyand insanity pleas in outpatient commitment stands at four to one, meaning that for every four competency to stand trial acceptedthere is one insanity plea. When inpatient commitment is compared, this ratio is even higher, at around six to one. Among insanitypleas alone, the ratio between outpatient and inpatient commitment is two to one. If the assumption that only defendants whocommitted moderate crimes are being sent to outpatient commitment is correct, the argument that there is an inversely proportionaterelationship between the severity of the offense and the willingness to accept the insanity plea is strengthened.

A combination of the data presented in both diagrams suggests the following conclusions: first, almost half of the pleas thatwere accepted(both insanity and competency) ended in outpatient commitment. This might indicates that these offenses were moderate. Second, Fig. 2.shows an annual rate of twelve cases of severe crime which ended with acceptance of either or both insanity and competency to stand trial.Even if all the pleas accepted, in regard to the severe crimes, were only insanity pleas, this rate is still only 15% out of all insanity acquittals.

To contextualize these data, it is again useful to compare Israeli rates to rates in the U.S. Steadman's study presents a division ofcases according to offenses.57 The total rate of insanity pleas accepted in the U.S. in crimes considered to be severe, according to theIsraeli Penal law, stands at 59%. This rate sums 22.5% cases of murder,58 4.6% of rape,59 7.4% of robbery,60 and 29.5% of

55 Section 24 to the Penal Law 5737 — 1977.56 Courts Law [Consolidated Version], 5744 — 1984, Sections 40 and 51.57 Steadman and his colleagues supra note 49 pp. 30.58 According to the Israeli Penal Law, this offense deserves mandatory punishment see Section 300 of the Penal Law 5737 — 1977.59 According to the Israeli Penal Law, this offense deserves 16 years of imprisonment see Section 345 of the Penal Law 5737 — 1977.60 According to the Israeli Penal Law, this offense deserves 14 years of imprisonment see Section 402 of the Penal Law 5737 — 1977.

Fig. 3. Cases in which competency and insanity were accepted according to placement.


aggravated assault.61 The maximum rate of insanity pleas accepted in severe crimes according to the Israeli Penal Law stands, asshown above, at no more than 15%. This rate is four times lower than its equivalent rate in the U.S.

It may be concluded that, in the U.S., the insanity defense is accepted in cases that are designated by the Israeli Penal Law as“severe crimes”. This is not the case in Israel, where the vast majority of insanity pleas accepted is for moderate offenses andmisdemeanors. It could be argued that this U.S. behavior reflects the existence of a harsher penalty, capital punishment. However,Steadman's breakdown, cited above, indicates that substantially higher U.S. acceptance of the insanity plea holds even if we excludethe murder cases.

4.2. The use of the insanity plea in Israeli Jurisprudence

In Israeli law the rate at which the insanity plea is raised and accepted is both substantially low in absolute numbers and incomparison to the rates in the U.S. The plea is accepted in only 0.07% of all criminal cases. The rate of insanity pleas accepted incases designated as “severe crimes” stands at no more than 15% out of this 0.07%. The rate of insanity pleas accepted in casesdesignated as “severe crimes” in the U.S. stands at almost 60% of all insanity pleas that were accepted. These findings suggest that (i)the willingness of the Israeli courts to accept the insanity plea in general is very low, and, (ii) where cases of severe crime are beingtried this willingness is even lower.

5. Conclusion

5.1. The connection between civil commitment and the insanity plea

The preceding analysis indicates that in the Israeli jurisprudence there is a substantial difference towards mentally illpatients in situations where the approach, ostensibly, should have been at least similar. While the purposes of criminal andcivil laws are arguably different, they ought to apply the same underlying principles. Civil commitment is aimed atpreventing dangers to oneself 62 and to others.63 On the other hand, the aims of criminal procedures include retribution,rehabilitation, creating general and individual deterrence, and incapacitating the offender.64 The criminal system punishes

61 According to the Israeli Penal Law, this offense deserves between 7 and 20 years of imprisonment see Sections 333 and 329 of the Penal Law5737 — 1977.62 Known also as the “Parens Patriae” authority.63 Known also as the “Police Power”.64 See Bonnie et al., supra. Note 31 pp. 40.


persons for crimes already committed,65 in otherwords, “…the criminal law is supposed to punish people for having committedharmful acts in the past;whereas civil commitment is supposed to prevent people fromcommitting harmful acts in the future”.66

The difference between these systems creates justified differences in the implementation of the law.The civil systemmust becautious when there is a need to decide whether to commit a person believed to be a danger to himself or to others in order toprotect himor the public. In turn, the criminal systemmust not bepermissive towards defendantswho raise the insanity defense.

However, civil commitment procedures and criminal insanity procedures need to be fundamentally consistent:mentally ill people dangerous to others due to their illness belong in the hospital, not in the community nor in jail. Thisobjective is not easily achieved.

The data gathered especially for this paper make it hard to escape the conclusion that contemporary practice in Israeldoes not accord with this practice.

On the civil front, inaccuracy in predicting who is dangerous leads to involuntary commitment of people who are notdangerous. The U.S. faces a similar problem, and resolves it somewhat differently, so has less excess commitment.However, the problem can only be effectively dealt with if prediction is improved. This requires moving to an actuarialprediction method.67

On the criminal side, too few people are sent to the hospital in Israel and correspondingly too many to jail. In thiscase there is no question of who is dangerous, that lies already in the past. The problem arises regarding who is mentallyill. Israel uses definitions abandoned by psychiatry more than 20 years ago. The U.S. has updated its definitions morerecently. But psychiatry has not changed its classifications without cause: the field has learned over the years to moveaway from “simple” models of mental illness and to adopt more complex models and therefore more “fuzzy” lines ofdistinction. This more complex reality burdens the legal sentencing mechanism, but that is no reason to applysimpleminded criteria and send people to jail who belong in the hospital.

There is no way of telling whether the U.S. has gotten its sentencing right. But we do know that it is using more up todate scientific categories. Accordingly, we can conclude that Israel is accepting too few insanity pleas. It couldsimultaneously be true that the U.S. is accepting too many and that the correct proportion lies somewhere between thetwo countries. Future developments in psychiatry may give us the answer. In the meantime, we must do the best we can.

Other countries can look at the comparative experience of Israel and the US, two common law countries very similarin the intellectual base, and draw their own conclusions on where they fit into this picture: how consistently they treatthe mentally ill in the civil and penal fields, and how well their sentencing accords with statistical prediction of dangerto others and contemporary knowledge of the etiology and processes of mental illness.

The existing situation in the Israeli legal system creates a discrepancy between the criminal and civil systems forpersons suffering from mental illness. It results in a situation where, “In effect, such persons would be treated68 asunable to choose to obey the law while still behaving legally and yet able to obey the law69 after acting illegally”.70

A discussion of what is needed to rectify this situation would take us well beyond the confines of this paper. Suffice it tosay that the first requirement for change to occur is surely recognition of the problem by all the relevant actors in society.

Acknowledgments

This article is dedicated to the memory of Dr. John Reuben Stoltzfus, a friend from the Institute of Law Psychiatryand Public Policy, School of Law, University of Virginia, who died in an automobile accident, July 12, 2005.

I would like to thank Professor Richard J. Bonnie and Professor John Monahan from the Institute of Law Psychiatryand Public Policy, School of Law, University of Virginia for helping me during all stages of this work; Special thanksare due to Professors Irene Shashar and Daniel M. Schydlowsky for their comments, help and support in the crafting ofthis paper and its underlying research. I am also grateful to the Israeli Department of Mental Services, Ministry ofHealth and the Israeli Judicial Authority for their cooperation.

65 See Monahan, supra. Note 25 pp. 391–435.66 Alan Dershowitz, Dangerousness as criterion for commitment, 11 Bull. Amer. Acad. Psychiatry and Law (1974) 127.67 Monahan, supra. Note 25 pp. 391–435. Monahan, J., Steadman J. H., Appelbaum, S. P., Grisso, T., Mulvey, P. E., Roth, H. L., Robbins, C. P,Banks, S., Silver, E, (2005). The classification of violence, Risk, Behavioral Sciences and the Law (in press).68 Civilly committed.69 While not entitled to benefit from the insanity defense.70 Developments in the law — Civil commitment of the mentally ill, Harvard Law Rev., April, 1974, 1201, 1207.

civil commitment and the criminal insanity plea in israeli law

Documents