ABA considers new stance on insanity defense

Controversy continues to swirl around the insanity defense and how it should be administered in the American system of justice. And now the American Bar Association, the nation's most prestigious legal group, is grappling with the issue at its midwinter meeting here this week.

Since late last June when John W. Hinckley Jr. - who had made an assault on President Reagan's life - was declared not guilty by reason of insanity, strong pressures have been placed on state and federal lawmakers either to abolish this defense, alter it, or strictly limit its use.

Even some of the strongest advocates of the insanity defense now seem willing to give ground. For example, the American Psychiatric Association (APA) in a recent position paper argues that this plea should be used only in cases of severe mental disturbance.

And APA concludes that psychiatrists should not be asked to make judgments as to whether a defendant is legally sane or insane. Their testimony might be restricted to an evaluation of his mental condition.

By the end of 1982, more than 40 bills had been introduced in Congress to abolish or substantially reform the insanity defense. So far, none have passed. And now over 20 states have considered or are debating such measures.

For example, David A. Roberti, president pro tem of California's Senate, is pushing legislation to replace the ''not guilty'' verdict in insanity cases with the ''guilty but mentally ill.'' Eight other states honor this verdict.

Last July, Idaho abolished the special defense of insanity. However, courts there do admit evidence relating to mental condition in limited circumstances. In 1979, Montana also placed strict restraints on the use of this plea.

Now the American Bar Association's committee on criminal-justice standards is submitting a report on the insanity plea which is certain to stir further controversy if adopted by the group's House of Delegates.

The ABA standards commmittee flatly rejects abolishing the plea, as urged by Sen. Strom Thurmond (R) of South Carolina and others. And it opposes an enactment of statutes which would replace the verdict of ''not guilty by reason of insanity'' with ''guilty but mentally ill.''

It argues that this legal disposition is little help in assessing a defendant's criminal responsibility. Instead of dwelling on the guilty or the not guilty verdict in relation to the plea of mentally ill, the ABA's criminal-justice standards committee would focus on ''burden of proof.''

For instance, the committee would require the prosecution to bear the burden of proof in states which focus on the question: Was the defendant able to ''appreciate'' the wrongness of his or her conduct?

Since 1975, ABA has supported the American Law Institute's Model Penal Code test for insanity. That test asks the question: Was the defendant able to conform his conduct to the requirements of the law? The ABA group says that reliance on the ''self-control factor'' places too great a burden on psychiatric testimony. It recommends the defendant give evidence to show why his conduct couldn't be controlled during a crime.

All federal courts and 26 states use the Model Penal Code standard for determining an insanity verdict. However, there is divergence in allocating burden of proof.

The federal courts place burden of proof on the prosecution. Twenty-four states place the burden on the prosecution. And 26 states (and the District of Columbia in nonfederal cases) place the onus on the defense.

ABA assessments counter the belief that the use of the insanity plea is on the upswing and that many criminals are being freed by misuse of this defense.

Although New York and Michigan show an increase in the number of insanity defense cases in recent years, elsewhere studies show this defense is seldom raised. When it is, acquittals are the exception rather than the rule.