Criminalizing the Crazy

If we were to play spot-the-difference between a depressed lady who chats to her cats and a ruthless Al-Qaeda terrorist, we’d be here for quite a while. The U.S. government’s most recent conquest in the war against terror seems more imbalanced than intimidating, and her image as a serious threat is difficult to take seriously. Similarly, the latest hacker to be caught—an autistic man in search of UFO evidence—hardly matches the profile of a high-level criminal mastermind. Were such individuals to be put on trial under normal circumstances, the code of the justice system would demand that their mental instabilities be taken into account. However, given that the victim in both these instances is the government, it seems highly unlikely that such protocol will be upheld. The overlap between insanity and criminality is multi-faceted and ill defined, but to argue that criminal mental impairment must be discounted under certain crimes is absurd. The insanity defense is a crucial aspect of all advanced legal systems, and it should not waver simply when the government is targeted.

The fear hyped around “Jihad Jane,” seems, frankly, overstated. While there is no doubt that the blonde intended to cause harm and committed a serious crime, she hardly seems a cause for great security concern. Legally named Colleen La Rose (“Jihad Jane” was a title created for a MySpace page), she was so inept that she advertised her terrorism skills on YouTube. LaRose suffered from depression and alcoholism, and even her intended victim, cartoonist Lars Vilks, joked about the woman “with this fantastic name,” who is “a bit low tech.” And despite adamant claims about her dedication to killing Vilks, the 46-year-old travelled to Sweden and returned to the U.S. without any attempt to commit the crime.

While LaRose appears to be an unhinged woman falsely raised to the status of a major terrorist, she is at least guilty of harmful intentions. However, Gary McKinnon, accused of “serious and deliberate damage,” seems to be simply a very good hacker who is foolish. The autistic, unemployed computer programmer hacked into U.S. military, intelligence, and government networks in order to look for evidence on UFOs, and left notes to demonstrate security weaknesses. While McKinnon’s actions caused harm, he clearly cannot be compared to a vindictive attacker attempting to damage U.S. information systems.

In fact, the U.S. government’s eagerness to imprison McKinnon seems to stem from embarrassment that an untrained hacker under the influence of cannabis could access high-security systems. Indeed, it is shameful that McKinnon apparently gained access by checking which system users still used the default “password” as their password. Few genuine threats to America have been caught in recent years, and it seems plausible that the excitement surrounding Jihad Jane and McKinnon is relief that someone can now finally be detained.

While the insanity defence is rarely used in full, it is absolutely essential that U.S. courts take “mitigating factors into account.” In order to correctly administer punishment, a legal system is moral required to consider the extent to which the defendant can be held responsible for their actions. A defendant may be acquitted if they acted  “under such defect of reason from disease of the mind” as to not realize why what they were doing was morally wrong.

Based on this legal practice, it would still be inconceivable that Jihad Jane will be acquitted. However, she is clearly mentally unstable, and it seems absurd to place LaRose’s punishment on the same level as those who have worked consistently toward terrorist ideology and attacks.

Conversely, it is entirely plausible to argue that McKinnon might be deemed not guilty. He has a mental disability, and it’s believed that were McKinnon tried in Britain, where the crime was partly committed, he would receive a non-custodial sentence, “since his actions were motivated by an undiagnosed disorder over which he had no control.” Furthermore, the 75-year sentence the U.S. has threatened seems particularly immoral, as someone with autism would suffer excessively in prison. According to Joel Sickler, head of the Justice Advocacy Group in Virginia, McKinnon would be “almost certainly be exposed to neglectful care,” as the U.S. Federal Bureau of Prisons “has a well-known and terrible track record of delivering on any type of health care required by an inmate, especially those with some form of mental impairment.”

The insanity defense is a necessary aspect of any legal system concerned with human rights. Neither McKinnon nor LaRose are the sinister threat that either is purported to be, and, while both have committed crimes, their blatant mental instabilities should affect their custodial sentence. A just legal system should be influenced only by the nature of the criminal, not the victim.

Olivia M. Goldhill ’11, a Crimson editorial writer, is a philosophy concentrator in Kirkland House. Her column appears on alternate Tuesdays.