– Alan M. Dershowitz, Harvard law professor, commenting on the jury verdict finding John W. Hinckley, Jr., not guilty by reason of insanity when he shot President Reagan.

I do not think nobody knows what was within his head that day.

– Woodrow Johnson, parking-lot attendant, one of the Hinckley jurors, commenting on what he learned from the eight-week trial to establish what was in Hinckley’s head that day.

GUISEPPE ZANGARA climbed on a chair at Bayfront Park in Miami on February 15, 1933, and fired five shots at an open car in which President-elect Franklin D. Roosevelt was talking with Chicago mayor Anton Cermak. He missed Roosevelt but hit Cermak, who died on March 6. Zan-gara’s motive, arguably the product of an insane mind, was that "since my stomach hurt, I get even with capitalists by kill the president." He was indicted for murder the day Cermak died, pleaded guilty, and was electrocuted two weeks later, complaining that there was "no one here to take my picture."

Forty-nine years later, on their second day of deliberations, the twelve jurors assigned to decide the guilt or innocence of John Hinckley, who had gunned down President Reagan and three others to win fame and to impress a movie actress, sent the judge a note, asking for a dictionary. They wanted ëto find out for ourselves, was all poetry fiction," the jury foreman, a twenty-two-year-old hotel-banquet worker named Lawrence H. Coffey, explained later to a subcommittee of gaping senators. Thus the jurors hoped to resolve a long, tangential debate between a defense lawyer, who interpreted Hinckley’s practice of scrawling morbid and bizarre images on notebook paper as proof of his insanity, and a prosecution psychiatrist, who dismissed Hinckley’s versified maunderings as "fiction."

So it came down to this: after the most elaborate insanity defense case ever staged – after thirteen months of pretrial maneuvering over procedural niceties and scraps of contested evidence; after thousands of pages of legal arguments; after eight weeks of courtroom combat orchestrated by opposing squadrons of lawyers; after long, dull days of learned theorizing by expert witnesses; after $1 million or more in fees for attorneys and the expert witnesses. Twelve conscientious men and women – eleven from Washington’s black working class and one white psychology graduate – locked up with orders to decide the fate of a would-be assassin by pondering riddles about free will, determinism, and moral responsibility that have confounded the world’s philosophers for millennia, got sidetracked into a purely semantic dispute between high-priced hired guns, and groped for a lexicographer’s simple answers. They might as well have asked for Hinckley’s horoscope.

"Even though we had the doctors and the professors there, they did not prove anything either with all their knowledge and degrees," juror Maryland T. Copelin, a fifty-year-old elementary-school cafeteria worker, observed after the verdict. "They couldn’t prove him insane, they couldn’t prove that he was sane – how can we laymen do it?" she said on another occasion.

The awesome complexity and expense of the legal machinery that was cranked up to deal with Hinckley seem especially absurd in light of the essential arbitrariness of the choices the jurors faced when that machinery finally stopped churning and dumped the decision in their laps. So they wanted a dictionary. Federal District Judge Barrington D. Parker denied this request. The jurors struggled on, reading Hinckley’s doggerel out loud to one another. ("We said, Wow, this doesn’t make sense," foreman Coffey recalled later.) Finally, at the end of the fourth day of sequestered deliberations, after Nathalia Brown, a thirty-one-year-old shop mechanic and the last holdout, caved in because she couldn’t stand being "incarcerated by justice" any longer, they returned their verdict in a sealed envelope.

Judge Parker, who had taken such pains to avoid any error that might tempt the liberal United States Court of Appeals for the District of Columbia circuit to reverse the conviction he apparently expected, opened it and read the words out loud thirteen times: not guilty by reason of insanity, as to each of the charges ranging from attempted assassination of the president to carrying an unlicensed pistol.

This was a man who, by all accounts, had shot down four innocent people on national television, knowing full well what he was doing, after studying literature about assassinations, stalking Jimmy Carter and Ronald Reagan for months, practicing his marksmanship, carefully choosing the time and place for his attempt, and loading his pistol with exploding bullets for maximum killing power. For all this, Hinckley was relieved of responsibility because he had been motivated to express himself through assassination by some crazy ideas, perhaps planted in his head by his fifteen viewings of Taxi Driver, that he could thereby win the love, or at least the attention, of a teenage actress named Jodie Foster.

HINCKLEY really was (and is) crazy, make no mistake about that – even though Dr. Park E. Dietz, a $120-an-hour prosecution psychiatrist who logged $122,742.91 in fees and expenses, somehow talked himself (but not the jury) into the opinion that Hinckley’s goal of making an impression on Miss Foster "was indeed reasonable because he accomplished it". Dr. Dietz did not have the benefit of the "sentencing speech" Hinckley wrote the day before the verdict and included in a letter to me a couple of weeks later – after any motive he once had for feigning insanity had been replaced by an incentive to appear healthy and normal.

The excerpted portion of the speech begins: "My actions of March 30, 1981 have given special meaning to my life and no amount of imprisonment or hospitalization can tarnish my historical deed. The shooting outside the Washington Hilton hotel was the greatest love offering in the history of the world. I sacrificed myself and committed the ultimate crime in hopes of winning the heart of a girl." It gets crazier as it goes on, reproaching Jodie Foster for her failure to "appreciate what I’ve done" to win her love, asserting that "we are a historical couple" like Napoleon and Josephine and Romeo and Juliet. It ends, "I’m sorry love has to be so painful."

But it is one thing to be crazy, and quite another to be so detached from reality or driven to act by delusions as to be morally blameless. Hinckley doesn’t deserve to be executed (neither did Zangara), but he does deserve to go to prison. If his acquittal stands for any principle, it is that anyone can take a shot at the president with the assurance of instant fame, and with a good chance of escaping punishment, as long as his motives seem sufficiently strange – especially if there is money to hire top-notch legal and psychiatric talent to nurture the seeds of doubt as to his sanity that grow out of the very nature of the crime.

For John Hinckley, a simultaneously sick and evil young man of twenty-seven who grew up in a comfortable world of backyard swimming pools, summer camp, dancing class, and family skiing and boating vacations, who financed his frenetic travels by stealing gold coins from his parents, crime paid. "Actually, I feel good because I accomplished everything on a grand scale," he said in one psychiatric interview after the shootings.

Hinckley wanted fame without having to work; he got it. Before the shootings, his scrawlings talked of committing "front-page murder" and included a ditty entitled "Guns Are Fun," in which he wrote: "This gun gives me pornographic power. If I wish, the president will fall and the world will look at me in disbelief." After the shootings, he described his life to psychiatrists as "a movie starring me," with Ronald and Nancy Reagan in supporting roles and "a cast of doctors, lawyers, and hangers-on." Hinckley wanted to be important to Jodie Foster; he succeeded. He wanted to get even with his parents for cutting off his money and withholding his inheritance; he turned their lives upside down, and cost his father, a self-made oil and gas entrepreneur, hundreds of thousands of dollars.

Finally, Hinckley got the verdict he wanted. Even his current confinement in a mental hospital, for an indeterminate period, seems a vast improvement on the sterile existence in cheap motels that he had faced. That was after his parents had exhausted their considerable reservoir of tolerance for their parasitic younger son’s unwillingness to finish college or get a job, and kicked him out of their home a few weeks before the shootings. Now he has access to a pingpong table, a gymnasium, news articles about himself, and other comforts, and sneaks in an occasional telephone call to the Washington Post. His ego is fed by other patients, who ask him for his autograph.

THE JURORS cannot be faulted for the absurdity of the verdict. There was even something noble about their willingness to weather the storm of public outrage it entailed. And their decision was quite plausible, although not logically compelled, given the contradictory psychiatric testimony and the law that they were instructed to apply-especially the idiotic rule that the prosecution must prove sanity beyond a reasonable doubt. "We felt locked in by the law," complained Mrs. Copelin.

Lawyers are fond of saying, after Oliver Wendell Holmes, that "hard cases make bad law." The Hinckley verdict demonstrates that bad law makes hard cases out of what should be easy ones. But the legal rules governing the insanity defense and the verdict that grew out of them were not the only things amiss here. Even if Hinckley had been convicted, his trial, and the legalistic jockeying that preceded and delayed it, would be examples of an adversary system of justice gone berserk.

These were good lawyers doing exactly what they are supposed to do. Vincent J. Fuller, the chief defense lawyer, is a thoroughly upright and engagingly witty man who, according to a profile in The New York Times, "enjoys tax evasion cases because they are so complicated." He is a partner in the elite Washington law firm of Williams & Connolly, which has a lucrative corporate practice and also specializes in the defense of political bribers, securities and tax defrauders, other white-collar criminals, and perhaps an occasional innocent who has been wrongly accused. At a cost of several hundred thousand dollars to Hinckley’s millionaire parents (bargain rates, compared with what the firm would have charged, say, General Motors), three younger attorneys (all graduates of Yale Law School with the best credenfials) and Fuller defeated three seasoned federal prosecutors, beat the odds, and got their man off the hook "Another day, another dollar," was Fuller’s comment to reporters who" besieged him in the hallway after the verdict. This quip was apparently intended as a self-deprecating understatement of the magnitude of his achievement. But the words drew uncomfortable attention to the mercenary aspects of justice in America: the role of defense lawyers as hired guns who become rich by getting guilty criminals off the hook, who are paid to win, if necessary by using every legal technicality and tactical maneuver at their command to keep the jury from learning the truth; the role of money in getting wealthy criminals more lenient treatment than others whose crimes are no more reprehensible; the cost to society of paying high-priced adversaries to spend long, billable hours manufacturing complexities when the simple truth cannot be squared with their clients’ interests.

It is a good system in some ways. It protects innocent defendants as well as guilty ones, and it safeguards, the civil liberties of the powerless and the politically unorthodox, better than any other. But in a case like that of John Hinckley, it becomes a parody of its own most asinine tendencies. The whole 448-day Hinckley "movie starring me," from the shootings on March 30,1981, through the verdict on June 21, 1982, probably cost the taxpayers more than $2 million and Hinckley’s parents $500,000 to $1 million or more. That covers the fees and salaries of the legal and psychiatric gladiators, including more than $300,000 for the private medical experts hired by the prosecution alone; more than $1 million the government spent to protect Hinckley from himself and others before and during the trial; thirty dollars a day and free meals for the twelve jurors and six alternates; $70,000 worth of transcripts of testimony prepared each night for the opposing legal teams; the salaries of the prosecutors, the judge, the court clerks, and assorted hangers-on.

Call it about $3 million in total costs to society, not counting what the media spent covering the whole extravaganza, with television crews that sat outside the courthouse door all day, trying to get footage of Hinckley’s parents going in and out, with courtroom sketch artists trying to capture Hinckley looking sad, Hinckley munching on his brown necktie, Hinckley mouthing obscenities at unfriendly witnesses, with dozens of reporters noting Hinckley’s every smirk and twitch. Some news organizations brought their own lawyers into the fray in attempts to pry various news nuggets from the judge. Some of the reporters paused occasionally, in their search for an angle that might push that day’s story onto the front page, to speculate uneasily about whether they could be helping to kindle the ambitions of other potential assassins lurking out there in the living rooms and motel rooms of America, feeding their imaginations on Hinckley’s fame. Then they typed on.

Three million dollars may not look like much when compared with the hundreds of millions poured into the prosecution and defense of the Justice Department’s antitrust suit against IBM, for example, which the Reagan administration abandoned as "without merit" in January, after thirteen years of appallingly wasteful legalistic dueling. But $3 million would pay the cost to the federal government of 2,380,952 free school lunches for poor children, at $1.26 per lunch. If a similar amount were spent to decide the guilt or innocence of each of the more than 20,000 persons charged with murder or man slaughter and the more than 150,000 charged with using firearms in aggravated assaults in the United States every year, it would add up to more than $500 billion, dwarfing any defense budget the Reagan administration might hope to see in its wildest dreams.

Of course, John Hinckley was not just another killer or would-be killer. His choice of targets, as well as his parents’ wealth, assured him both a high powered legal defense and a prosecution by hardworking, seasoned government lawyers prepared to match the defense dollar for dollar, expert for expert. Here, some have said, we have the adversary system of justice in its glory, orchestrating the most elaborate, carefully planned and rehearsed, finely tuned symphony of procedural fencing and eloquent advocacy money can buy. As Professor Dershowitz put it, here was "an independent jury given a great deal of information from a wide variety of sources, presented by an excellent team of defense attorneys and prosecutors in a trial presided over by a first-rate judge."

Or, one might say without disparaging the performances of the players, here was a legal system on an orgy of waste, throwing money and prime talent down a rathole, squandering scarce resources that could be better employed making safe and efficient automobiles, for example, on one probably unsalvageable human being and an obsession with legal process. For the ultimate decision regarding what should be done with Hinckley, which all this legal machinery was supposed to suffuse with the clear light of reason, was destined from the start to be essentially arbitrary.

The result was arbitrary in at least three senses.

FIRST, the law left the jurors adrift in a sea of conflicting evidence about the inner workings of Hinckley’s mind without any compass to guide them to a "correct" decision. That is because lawmakers have not really been able to make up their minds about how crazy is crazy enough to qualify for legal insanity. The law started by taking what could have been a very simple issue and making it very complex. Then it drafted, more or less at random, twelve citizens who had no particular aptitude for analyzing complex issues, and thrust onto their shoulders the burden of society’s ambivalence about who should be punished.

The issue could have been simple because even Hinckley’s lawyers and hired psychiatric experts had to concede that he had shot four innocent men after stalking presidents and planning his assassination attempt for months; that he knew what he was doing at the time of the shootings; and that he knew in an intellectual sense that it was wrong. The only defense was that his motives were so crazy, that he was so driven by bizarre fantasies and psychotic delusions of attaining a "magical union" with Jodie Foster, that he should not be held responsible.

The defense theories about what went on in his head were disputed by two prosecution psychiatrists whose testimony was just about as plausible as that of the four defense experts. They conceded that Hinckley had some strange fantasies, but said he did not have schizophrenia, only a few relatively mild and commonplace mental disorders. They said that he had had no delusions or psychoses because he had never lost touch with reality, including the reality that Jodie Foster would never feel affection for him. His real motives, they said, had been to win fame and to give Miss Foster and his parents a jolt.

What guidance did the law give the jurors in weighing these conflicting theories about the only issue in the case? It told them to bring in a verdict of not guilty by reason of insanity unless the prosecution could, as of the instant of the shootings, "prove beyond a reasonable doubt either that, the defendant was not suffering from a mental disease or defect, or else that he nevertheless had substantial capacity on that date both to conform his conduct to the requirements of the law and to appreciate the wrongfulness of his conduct."

This linguistic bowl of mush is the two-pronged "substantial capacity" test that was invented by the American Law Institute and has been adopted by most federal appeals courts, combined with an 1895 Supreme Court precedent requiring the prosecution to prove the defendant’s sanity beyond a reasonable doubt in federal cases. Buried deep in the soporific standard instructions that Judge Parker read to the jurors an hour and forty minutes after all the evidence was in, this test told them to judge Hinckley’s sanity or insanity by a three-step legal analysis that would put him somewhere on a sliding scale of psychiatric determinism and moral relativism. But the law gave the jury no guidance as to where on this scale the line of legal insanity should be drawn.

Some of the jurors indicated in interviews and in their testimony to a Senate subcommittee that they did not really understand either the psychiatric testimony or the complexities of the legal test, including the one thing it is supposed to make clear, which is that mental illness does not constitute legal insanity unless it reaches a degree that severely impairs self-control. For example, Woodrow Johnson, the forty-eight-year-old parking-lot attendant, explained his vote of not guilty by reason of insanity by saying, "I believe that he did have a mental problem. I think he was a little mixed up."

The second sense in which the Hinckley trial’s result was arbitrary was that little extra illumination was shed on the ultimate decision by the time, talent, and dollars invested in building toward it, including the testimony of the eighteen doctors and twenty-three other witnesses who testified.

Hours after the assassination attempt, while Jim Brady was struggling for his life as doctors picked bullet fragments out of his brain, and while John Hinckley was smugly inquiring about the size of the splash he had made in the media, a neatly written letter, addressed to Jodie Foster, was found, un mailed, in Hinckley’s Washington hotel room, right where he had told the police to look. "There is a definite possibility that I will be killed in my attempt to get Reagan," began the letter, dated an hour and forty minutes before the 2:25 P.M. shootings. "Jodie, I’m asking you to please look into your heart and at least give me the chance, with this historical deed, to gain your respect and love," it concluded.

They were all there, almost every one of the major themes that were to be developed ad nauseam in the psychiatric testimony at the Hinckley trial more than a year later – the crazy notion (stressed by the defense) that such a deed could gain the respect and love of an actress, balanced by the quite rational understanding (stressed by the prosecution) that he was about to risk his life in an illegal attempt to assassinate the president, an attempt that he quite accurately expected and hoped would make him famous and at least would win him Miss Foster’s attention.

All the words of the psychiatrists and lawyers, the laborious reconstruction of everything that had ever happened in Hinckley’s life from birth onward, the ink blot tests, the cat scans of his slightly shrunken brain, the multisyllabic psychiatric diagnoses, and all the rest, probably brought the jurors little more understanding of how sane or insane Hinckley was than they would have had from the uncontested facts of the incident, the so-called Jodie letter, and nothing else. If 1,000 people were asked to vote Hinckley sane or insane with only the Jodie letter to guide them, and then were forced to sit through the entire eight-week trial and reconsider, it is unlikely that more than a handful would change their votes.

SO WHY did it take almost fifteen months and $3 million from shootings to jury verdict? It was not that either side was stalling. Rather it was, for the most part, because in cases in which the stakes are high enough and there is money or glory enough to compensate the lawyers, our legal system creates incentives and opportunities for them to litigate to the eyeballs even over unimportant side issues. The computer printout listing the documents filed during the first year of legal maneuvering in the pretrial phase of the Hinckley case is more than fifteen feet long. It contains hundreds of entries representing thousands of pages of motions, memoranda of points and authorities, petitions, objections, requests for reconsideration and clarification, and appeals of every side issue imaginable.

The most time-consuming matters were the eight months of independent, redundant psychiatric evaluations of Hinckley by three separate teams of experts, and the six months of litigation over defense motions to prevent the jury from learning what Hinckley had said to three federal agents during a twenty-five-minute conversation several hours after the shootings, and what he had written in some mysterious notes taken from his prison cell in July 1981.

In what has to have been one of the most elaborate efforts in all history to plumb the mind of one human being, Hinckley was interviewed for hundreds of hours in separate, contemporaneous psychiatric evaluations by three psychiatrists and a psychologist for the prosecution (who prepared a 628-page report), three psychiatrists and a psychologist for the defense, and two prison psychiatrists and a psychologist who were appointed by the court to do their own evaluation. Total cost of the mental-health experts: more than $500,000.

As for the federal agents, the prosecution wanted them to testify because they would have said that Hinckley had seemed cool and rational only hours after he had squeezed off six shots in what the defense claimed was an insane frenzy. The defense wanted the agents not to testify, for the same reason. The defense won. But the excluded testimony was hardly worth the months of trial delay and litigation to anybody, because the prosecution still had five other witnesses who had spoken with Hinckley the day of the shootings. They later told the jury, with out contradiction by any defense witness, and without any apparent effect on the verdict, about how cool and rational he had seemed when they saw him.

The defense victory on this point is nonetheless memorable because it embodied an especially silly aspect of the famous Miranda rule. The contention of the defense lawyers was that Hinckley’s rights under the Fifth and Sixth Amendments had been violated because the federal agents had asked him some questions after he had requested a lawyer. All the evidence showed that Hinckley had been handled with exceeding gentleness by the police and federal agents after his assassination attempt, had been advised no less than four times of his "Miranda" rights to remain silent and to have a lawyer present, and had thereafter willingly answered the agents’ questions about his background and travels before the lawyer he had requested had been contacted. But the Supreme Court’s 1966 decision in Miranda v. Arizona not only required the reading of rights Hinckley was given, but also provided that "if the individual states that he wants an attorney, the interrogation must cease until an attorney is present," whether or not there is any evidence of coercion, intimidation, or "third degree" interrogation on the part of the police.

Nothing Hinckley told the agents was actually in dispute, and the agents’ potential testimony didn’t even relate to what he had said – only how he had said it. It’s hard to imagine a situation further removed from the original purposes of the Fifth Amendment’s ban on compelled self-incrimination. Nevertheless, Judge Parker, anxious to avoid any misstep, barred the three agents from testifying. The prosecution took the issue to the appeals court before the trial but lost there too. The defense lawyers, emboldened by this success, next advanced the audacious argument that all the prosecution’s psychiatrists should be disqualified from testifying because they had been "tainted" by knowledge of the suppressed conversation with the three agents. Judge Parker could not quite stomach this astonishing idea and rejected the motion after a special hearing.

Finally, there was the trial, the most elaborate and expensive in the modern history of the insanity defense, with elements of tragedy, melodrama, soap opera, psychiatric lecture, and mime. It began on April 27 with a week of jury selection, and ended on June 21. It was often reminiscent of Hinckley’s "movie starring me," particularly when he took an active role by suddenly stalking out of the courtroom when the videotaped image of Jodie Foster testified that she had had no relationship with him, and by excusing himself less dramatically on several other occasions when he seemed pained by testimony about his "pathetic" pursuit of the actress. On each occasion, a movie camera was set up in the courtroom and trained on the witness stand so that Hinckley could watch from his cell.

President Reagan, Jim Brady, and the other victims – "bit players," to Hinckley – quickly disappeared from the scene and faded into the recesses of memory. The Hinckley family tragedy, complete with tales of Titter the cat, was reenacted from the witness stand by the decent but guilt-ridden parents, who had kicked their son out and told him to support himself on the advice of Dr. John J. Hopper, Jr., a hometown psychiatrist. "I am the cause of John’s tragedy," John W. Hinckley, Sr., declared as his strong, sonorous voice gave way to tears. He may come to regret this assumption of responsibility: the lawyers for three of his son’s victims (all of them except Reagan) have filed multimillion-dollar lawsuits against John Jr., and lawyers for at least one of them are intensifying their efforts to find a legal hook to get at what is left of John Sr.’s assets. (Not to mention their efforts to get at any assets or malpractice insurance poor Dr. Hopper may have.)

Then the opposing teams of high-powered, hired psychiatrists and psychologists took over, with their ruminations on Hinckley’s "inner world," on his childhood shyness and long-standing friendlessness and depression, and on his fantasies about kidnapping Jodie Foster or skyjacking a plane so that he could demand that Reagan resign and vacate the White House and he and Jodie could move in. There were psychiatric interpretations of the bizarre images and oedipal themes in Hinckley’s writings, contradictory diagnoses, debates over the width of the wrinkles in his brain, and efforts to present the doctors’ carefully coached and rehearsed advocacy as objective scientific fact.

Dr. David M. Bear, a defense psychiatrist whose glittering curriculum vitae include the top academic ranking in Harvard College’s Class of 1965, told me after the verdict that he had spent "at least twenty to twenty-five hours" rehearsing his testimony with defense lawyers. They convinced him that he was "part of the adversary procedure" and should make "a clear, strong case." He said the lawyers told him to tell the truth, but not to "weaken your answers with all the qualifications you think you ought to make," and not to volunteer anything that might weaken the defense case unless the cross-examining prosecutor was sharp enough to bring such information out with pointed questions. "They said, ëOh, don’t mention the [exploding] bullets. My God, that’s so damaging to the case,’" Dr. Bear recalled. But he said, "I was determined never to tell a lie." The Harvard Medical School psychiatrist said he had been paid about $35,000 in fees and expenses for his work, including $125 an hour for his testimony that Hinckley was insane and could not justly be held responsible.

Perhaps the extreme of Freudian abstraction in the trial testimony came when Dr. Thomas C. Goldman, another defense psychiatrist, read from his report that Hinckley subconsciously saw Miss Foster as "an idealized mother who is all-giving and endowed with magical power," and saw Reagan as an "all-evil prohibitive figure who hates him, seeks to destroy him, and deny access to the idealized mother figure." Roger M. Adelman, the chief prosecutor, who specialized in beating up on defense psychiatrists in cross-examination and in his closing argument to the jury, had a lot of fun with that one. But it didn’t get him a conviction.

For every defense theory about how some episode showed Hinckley was crazy, the prosecution had an answer; for every piece of prosecution evidence that suggested he was sane, the defense had an explanation. Take Hinckley’s recollection, in psychiatric interviews, that Reagan "looked right at me" and waved on his way into the Washington Hilton Hotel, before Hinckley pulled his gun from his pocket and shot him on his way back out. The defense experts testified that this was an insane "idea of reference," a kind of momentary delusion that someone was sending him a message to act. The prosecution experts said what probably happened was that Reagan looked right at Hinckley and waved. As for all the prosecution witnesses who testified about how cool and normal Hinckley had seemed to them the day of the shootings, Dr. Bear countered for the defense that the appearance of being steely calm and "cool as a cucumber" fit only too well with his own diagnosis of latent or "pseudo-neurotic" schizophrenia.

THE THIRD SENSE in which the result of the Hinckley trial was arbitrary is that he was found not guilty by reason of insanity while so many others, just as crazy and in some cases far crazier than he, are convicted and sentenced to prison or even death. In 1972, Supreme Court Justice Potter Stewart voted to strike down the death penalty, in part because it had been used so rarely that those executed were "a capriciously selected random handful" among many similar criminals. A successful insanity defense of a lucid gunman like John Hinckley is almost as "wanton and freakish" (in Stewart’s words) as the death penalty, although obviously the consequences are more welcome to the defendant. Indeed, more than one legal scholar has noted that the characteristics of mad, senseless brutality and callous indifference to suffering that may qualify a murderer for the death penalty under modern criminal statutes and Supreme Court decisions are the same traits that make for a good insanity defense. When the same particulars can turn an ordinary murder into one deserving the ultimate sanction, or can excuse it completely, a criminal justice system is truly at war with itself.

Hinckley felt little compassion or remorse for James Brady, the presidential press secretary whom he disabled for life with a bullet that exploded in his brain, or for his other victims. Defense psychiatrists cited Hinckley’s view of the victims as "bit players," whose suffering was unimportant, as proof that he met the legal test of insanity. Psychiatrists hired by prosecutors seeking the death penalty of, say, a Mafia hit man might make very different use of very similar evidence of callousness.

The Warren Commission investigating the assassination of President Kennedy by Lee Harvey Oswald, and the murder of Oswald two days later by Jack Ruby, observed, as have various scholars, that all or almost all assassins and would-be assassins in the nation’s history seemed mentally deranged to some degree. But Ruby, whose defense of insanity was flamboyantly presented by San Francisco showman Melvin M. Belli, was convicted of murder despite psychiatric testimony that he was a "psychotic depressive" divorced from reality. So was Sirhan B. Sirhan, who assassinated Robert F. Kennedy in 1968. Sirhan was convicted of first-degree murder and sentenced by the jury to death (later reduced to life imprisonment when the California death pen-airy law was voided), after a three-month trial in which a battery of defense experts described him as a paranoid schizophrenic who was subconsciously killing his father in an oedipal rage, and a high-powered team of volunteer defense lawyers argued unsuccessfully that "diminished capacity" at the time of the crime made him incapable of premeditation.

Arthur H. Bremer, whose life as a publicity-seeking loner stalking presidents bears a striking resemblance to Hinckley’s, and whose sanity can be doubted just as plausibly, was convicted in 1972 of assault with intent to kill Gov. George C. Wallace of Alabama, after a four-day trial. A Maryland state jury took ninety minutes to reject his defense of insanity. Lynette Alice ("Squeaky") Fromme, a member of mass murderer Charles Manson’s mad cult of violence, and Sara Jane Moore, a wacko with a background in mental hospitals and radical politics, were both convicted of trying to shoot President Gerald Ford in unrelated attempts in September 1975 after each of them decided not to attempt an insanity defense. This decision alone casts doubt on their sanity.

Before Hinckley, the only assassin or would-be assassin tried for attacking a sitting president who had escaped conviction was an underemployed house painter named Richard Lawrence, who attempted to kill Andrew Jackson in 1835, in the first attempt on the life of a president. Lawrence’s two pistols inexplicably misfired after their percussion caps had exploded loudly, the second at point-blank range, before a crowd of dignitaries on the east portico of the Capitol. Several doctors said he had insane delusions. It took the jury five minutes to return its verdict of not guilty by reason of insanity, after a trial in which Lawrence proclaimed that he was the king of England, the United States, and Rome and that Jackson had denied him his fortune and his thrones. Francis Scott Key, who had turned to prosecuting criminals in the years after writing "The Star Spangled Banner," did not vigorously contest the insanity defense, possibly because, under the law at the time, Lawrence could have been sentenced to only a few years in jail if convicted. After the acquittal, Lawrence was sent to jail anyway as a lunatic. Twenty years later, he became one of the first patients in the new Government Hospital, where he died in obscurity in 1861, after twenty-six years in confinement. That hospital, later named St. Elizabeths, is where John Hinckley is now being held.

In more recent times, although the courts have broadened the legal definition of insanity considerably, a successful insanity defense of a celebrated, violent crime by a person other than a raving, hallucinating lunatic is still quite rare, and juries are generally thought to be hostile to the defense.

So what accounts for the success of Hinckley’s lawyers where so many others have failed? Nobody really knows. Money doubtless had something to do with it – the money that paid for their own high-priced skills and huge investment of time preparing their case, and allowed them to hire leading psychiatrists and put on the most elaborate insanity defense in history. The fact that none of Hinckley’s victims died probably helped. Hinckley’s courtroom demeanor, more sad and childish than raving and Manson-like, probably also helped. Perhaps it made him seem less crazy, but it also made him seem less frightening and dangerous. The instruction that the prosecution must prove sanity beyond a reasonable doubt also helped, although juries have happily ignored this near impossible standard in many other cases, including Bremer’s.

Finally, in hindsight it seems that the prosecution may have erred if, as some observers say (and the prosecutors deny), it tried to exclude educated white people from the jury. The thought may have been that the mostly black jurors, of mainly limited education, would not sympathize with a rich white kid, and would not linger over the niceties of "reasonable doubt." But the fact that Ronald Reagan is not a particularly beloved leader among inner-city blacks may have given Hinckley’s crime less visceral impact for the jurors than it would have had if the victim had been, say, Bobby Kennedy.

CAN ANYTHING be done to limit wasteful extravagances like the Hinckley trial? Can or should the insanity defense be changed? The answer to the first question is that little can be done directly. It would help to have simpler laws, written in a way designed to limit evidence and legal argument by sharpening the issues to be debated in court. But this is a pipe dream. Wasteful litigation, civil and criminal, is too deeply ingrained a habit in American culture and capitalism. More drastic efforts to attack litigious waste at its roots – such as legal limits on how much can be spent on prosecuting and defending a criminal case – would probably be unconstitutional.

One can hope that spectacles like the Hinckley trial and the IBM case will gradually produce changes in attitudes and cut down on incentives for lawyers to engage in such overkill, or even cut down on lawyers themselves. Judges could apply stricter standards of relevance and common sense to limit tangential or repetitious testimony. Jurors and judges alike could hold a special dose of skepticism in reserve to unload on defendants and other litigants who invest in particularly dazzling displays of virtuosity by the most expensive hired guns. Bright college students considering law school might think longer and harder about whether they really want to join in the national binge of legalistic waste.

As to the second question, the insanity defense should be narrowed, the class of people who qualify for it should be identified with greater precision, and the new, alternative verdict of "guilty but mentally ill" that some slates have enacted should be adopted more widely to deal with the John Hinckleys of this world, the partly crazies, who deserve neither to be absolved of responsibility nor to be treated just like ordinary criminals.

Abolishing the insanity defense, as some in Congress and elsewhere have proposed, would be going too far. Some people are so crazy that they literally do not know what they are doing. They think they are shooting the devil when they shoot another human being. But an insanity defense broad enough to encompass John Hinckley undercuts its own usefulness as a moral cornerstone of the criminal law, which is to reaffirm that most of us must be held responsible for the harm we do to others by making allowances for the very few whose crimes are committed in utter ignorance of their wrongfulness.

If John Hinckley cannot be punished for his crime, who can? Attempted murder is rarely the product of a rational decision. Almost all murderers are a little crazy at the moment of violence, a little "driven" by something, not often as chronically crazy as Hinckley, perhaps, but almost as far down the slippery slope of arguably impaired control that leads to the slough of determinism. If John Hinckley cannot be punished, how can we justly punish teenage ghetto dwellers who grow up on welfare without fathers in their homes, attend bad schools where violence stalks the hallways, turn to drugs for respite from the dreary monotony of their lives, turn to robbing grocery stores to support their drug habits, and finally panic and shoot the grocer because they think he may have a gun of his own under the counter?

The only reason today’s federal rules about the insanity defense, and similar state rules, don’t routinely produce intolerable results is that judges and jurors have enough common sense not to take the rules literally.

For federal offenses, the legal rules work like this: .if a defendant pleads insanity, the verdict must be not guilty unless the prosecution proves the defendant’s sanity at the time of the crime beyond a reasonable doubt. And, under the most logical reading of various court rulings, a defendant found not guilty by reason of insanity may be entitled to release soon thereafter, unless the government can prove by "clear and convincing evidence" that he is currently both mentally ill and dangerous. Add to this the commonplace observation by civil libertarians and psychiatric experts that modern learning cannot predict or prove with any precision, on the basis of past crimes, whether anyone will be dangerous in the future, and you have quite a formula.

Logically, almost any outwardly rational perpetrator of a bizarre (i.e., arguably insane) crime, like Hinckley, can be acquitted for want of proof "beyond a reasonable doubt" that he is sane, and released from the mental hospital soon after that for want of "clear and convincing evidence" that he is insane. If the evidence regarding sanity is inconclusive – as it almost always is – in theory at least there is no way to keep someone like Hinckley locked up, either in prison or in a mental hospital. Hinckley’s lawyers and parents have said that they will not try to get him out immediately, but will wait at least until they consider him no longer dangerous. But anytime he gets tired of St. Elizabeths, Hinckley can proclaim his desire for a new lawyer, and publicity-seeking volunteers will come running. "I’m going to walk out the door whether the public likes it or not" (if the doctors and judge give the go-ahead), Hinckley said, in an unsolicited phone call to a Washington Post reporter.

Up until about twenty years ago, people acquitted of serious crimes on grounds of insanity were almost invariably packed away to mental hospitals, often as horrible as prisons, for the rest of their lives. But psychiatric trends toward deinstitutionalization of the mentally ill, combined with judicial decisions expanding their civil liberties, have led to increasingly frequent early releases of criminals acquitted for insanity, who occasionally kill or maim again. "Perhaps for the first time in history, a successful plea of insanity has real bite," says Dr. Alan A. Stone, a psychiatrist at Harvard Law School.

THE MOST sensible solution would be to reverse the burden of proof about insanity at both stages of the process. The defendant who admits to committing a crime and seeks to avoid responsibility by claiming he was insane should be required to prove it. (Given the inherent uncertainties, however, requiring the defendant to prove his mental state "beyond a reasonable doubt" would be as unfair as the current rule imposing that burden on the prosecution.) It is also fair that the defendant who has been acquitted on grounds of insanity should have the burden of proving his current sanity, or harmlessness, before he is released from the mental hospital. Society deserves at least this much protection.

Congress has actually passed laws that require criminal defendants pleading insanity in the District of Columbia to prove it at trial, and then to prove their sanity if they later want out of the mental hospital. But a Rube Goldberg series of court decisions saved Hinckley from the first burden and might save him from the second. The D.C. federal appeals court ruled in 1968 that when a defendant is found not guilty merely because prosecutors could not prove his sanity beyond a reasonable doubt, this alone is not enough to keep him in the hospital. He has a constitutional right to release unless the government can then prove his insanity by the standards of ordinary commitment proceedings. To overrule this decision, Congress in 1970 put the burden of proof on District of Columbia defendants at both stages – trial, and petition for release from the hospital. But the federal appeals court ruled that this law cannot apply to federal trials, since that would unconstitutionally discriminate against federal defendants in D.C. as opposed to federal defendants elsewhere.

Hinckley was charged with three federal crimes and ten D.C. crimes. Ordinarily, defendants charged with D.C. crimes do have the burden of proving insanity. But Judge Parker feared (reasonably enough) that the jury would be confused if instructed that the prosecution must prove Hinckley’s sanity in shooting the president, but Hinckley must prove his insanity in shooting citizen Ronald Reagan. So, to be safe, the judge put the burden of proof on the prosecution for all thirteen counts, thus totally frustrating the will of Congress. Furthermore, since Hinckley was tried under the old "reasonable doubt" standard, the logic of the 1968 case seems to apply to him and he may be entitled to release unless the government – having failed to prove that he is sane – can now prove that he is insane.

Congress has never passed general federal legislation dealing with the insanity defense, but has let the courts set the rules. The courts have made a mess of it. Congress should get to work and clean the mess up, and, one might hope, inspire legislatures in states where similar messes exist to do the same.

Aside from shifting the burden of proof about insanity, Congress should replace the courts’ mushy "substantial capacity" test of legal insanity with one requiring the defendant to show that he was totally incapable of knowing what he was doing or knowing that it was wrong.

For partly crazy defendants like Hinckley, who would not qualify as insane under such a test, Congress should establish an alternative verdict of "guilty but mentally ill." As Lawrence Coffey, foreman of the jury that reluctantly acquitted Hinckley for want of any alternative to an unqualified conviction, told the Senate subcommittee, "It should be changed in some way where the defendant gets mental help, gets help enough that he is not harmful to himself and society, and then be punished for what he has done wrong."

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