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Insanity Defense Essay Outline


The insanity defense refers to that branch of the concept of

insanity which defines the extent to which men accused of crimes may

be relieved of criminal responsibility by virtue of mental disease.

The terms of such a defense are to be found in the instructions

presented by the trial judge to the jury at the close of a case. These

instructions can be drawn from any of several rules used in the

determination of mental illness. The final determination of mental

illness rests solely on the jury who uses information drawn from the

testimony of "expert" witnesses, usually professionals in the field of

psychology. The net result of such a determination places an

individual accordingly, be it placement in a mental facility,

incarceration, or outright release. Due to these aforementioned

factors, there are several problems raised by the existence of the

insanity defense. Problems such as the actual possibility of

determining mental illness, justifiable placement of judged "mentally

ill" offenders, and the overall usefulness of such a defense. In all,

I believe that these problems, as well as others which will be

mentioned later, lead us to the conclusion that the insanity defense

is useless and should be abolished entirely. Insanity is a legal, not

a medical definition. Therefore, mental illness and insanity are not

synonymous: only some mental illness constitutes insanity. Insanity,

however, includes not only mental illness but also mental

deficiencies. Due to this, there are problems in exactly how to apply

a medical theory to a legal matter (Herman, 1983;128). The legal

concepts of mental illness and insanity raise questions in a conflict

between what are termed legalistic criminology and scientific

criminology: mens rea, punishment v. treatment, responsibility, and

prisons v. hospitals. This debate seesaws to and fro amidst a grey

area between law and science. The major difficulty with a theory such

as mental illness is that it is just that, a theory. To scientists

theories are a way of life, but applied to the concept of law theories

become somewhat dangerous. By applying a loose theory such as mental

illness to law we are in essence throwing the proverbial "monkey

wrench" into the wheels of justice.


At the center of the legal use of insanity lies the mens rea.

Every crime involves a physical act, or actus reus, and a mental act,

or mens rea, the non-physical cause of behavior. The mens rea is the

mental element required for a crime, and if absent excuses the

defendant from criminal responsibility and punishment (Jeffery,

1985;49). The difficulty here lies in analyzing the mens rea. In order

to do this lawyers apply one of several rules used by psychologists.

These rules range from the Irresistible Impulse Test to the M'Naghten

Rule. Each of these rules approach mental illness/capacity in a

different way and in my opinion each falls short of actual proof. I

will discuss each in detail. The M'Naghten Rule The M'Naghten Rule,

also known as the right-wrong test, arose in 1843 during the trial of

Daniel M'Naghten who argued that he was not criminally responsible for

his actions because he suffered from delusions at the time of the

killing. The M'Naghten Rule reads: A defendant may be excused from

criminal responsibility if at the time of the commission of the act

the party accused was laboring under such a defect of reason, from a

disease of the mind, as not to know the nature and the quality of the

act he was doing, or if he did know it, that he did not know that he

was doing what was wrong. Thus, according to the rule, a person is

basically insane if he or she is unable to distinguish between right

and wrong as a result of some mental disability. Criticism of the

M'Naghten Rule has come from both legal and medical professions. Many

criticize that the test is unsound in its view of human psychology.

Psychiatry, it is argued, views the human personality as an integrated

entity, not divisible into separate compartments of reason, emotion,

or volition (Herman, 1983;138). Additionally, the test is criticized

for defining responsibility solely in terms of cognition. While

cognitive symptoms may reveal disorder, they alone are not sufficient

to give an adequate picture of such a disorder or determine

responsibility. Also, it has been shown that individuals deemed insane

by psychologists have possessed the ability to differentiate right

from wrong. I believe that the major weakness of this test, however,

lies in the fact that courts are unable to make clear determinations

of terms such as disease of the mind, know, and the nature and quality

of the act. The Irresistible Impulse Test This rule excludes from

criminal responsibility a person whose mental disease makes it

impossible to control personal conduct. Unlike the M'Naghten Rule, the

criminal may be able to distinguish between right and wrong, but may

be unable to exercise self-control because of a disabling mental

condition. Normally this test is combined with the M'Naghten Rule.

Many of the criticisms of the Irresistible Impulse Test center around

the claim that the view of volition is so extremely narrow that it can

be misleading. Just as the M'Naghten Rule focused on cognition rather

than the function of the person in an integrated fashion, the

Irresistible Impulse Test abstracts the element of volition in a way

that fails to assess a person's function in terms of an integrated

personality. Additionally, it has been asserted that the concept at

best has medical significance in only minor crimes resulting from

obsession-compulsion, and that seldom, if ever, can it be shown that

this disorder results in the commission of a major crime (Seigel

1993;144). Such a claim is subject to the objection that it cannot be

conclusively proven. Interestingly, it has been shown by many

psychiatric authorities that no homicidal or suicidal crime ever

results from obsession-compulsion neurosis. Another criticism of this

test is the difficulty, if not the impossibility, of proving the

irresistibility of the impulse, which the definition of the test

requires. The jury, as I said earlier, has the final decision, and is

faced with deciding when the impulse was irresistible and when it was

merely unresisted, a task that psychiatrists suggest is impossible to

perform. We are also able to argue that the test is one of volition.

It is too narrow in that it fails to recognize mental illness

characterized by brooding and reflection (Herman 1983;140). The test

is misleading in its suggestion that where a crime is committed as a

result of emotional disorder due to insanity, it must be sudden and

impulsive. The Durham Rule The Durham Rule, also known as the Products

Test, is based on the contention that insanity represents many

personality factors, all of which may not be present in every case. It

was brought about by Judge David Bazelon in the case of Durham v. U.S.

who rejected the M'Naghten Rule and stated that the accused is not

criminally responsible if the unlawful act was the product of mental

disease or defect. The primary problem with this rule of course lies

in its meaning. Again it is impossible for us to define mental disease

or defect, and product does not give the jury a reliable standard by

which to base a decision. It is unnecessary to offer further

criticism, for my purpose I believe this attempt fails at it's onset.

The Substantial Capacity Test Another test is termed the Substantial

Capacity Test which focuses on the reason and will of the accused. It

states that at the time of the crime, as a result of some mental

disease or defect, the accused lacked the substantial capacity to (a)

appreciate the wrongfulness of their conduct or (b) conform their

conduct to the requirements of the law. This test is disputable in the

fact that it is not only impossible to prove capacity of reason or

will, but to even test such abstracts seems absurd. Additionally, the

term "substantial capacity" lies question in that it is an abstract

impossible to define.


The meaning of insanity is the legal definition as put forth

in a rule such as the M'naghten Rule or whatever school of thought is

in use on any given day. The legal test is applied in an adversary

system which pitches lawyer against psychiatrist and psychiatrist

against psychiatrist. Because of this, the psychiatrist is often

perceived not as a scientist but a partisan for the side which is

paying for his testimony (Jeffery, 1985;56). The major problem in this

case being that the use of a neutral expert is impossible to

implement. In the end the determination of insanity is a layman's

decision since it is the jury which ultimately decides whether the

defendant is sane or insane. This of course is ludicrous since

professional scientists cannot agree on the meaning of mental illness.

How can a layman make such a decision especially after listening to

contradictory testimony which is manipulated by opposing lawyers. I

believe that the major problem that we can point out here is in the

futility of asking psychiatrists to testify in terms of legal concepts

of insanity. The psychiatrist finds himself in a double bind: he has

no medical definition of mental illness and he must answer questions

from lawyers concerning legal insanity, right and wrong, and

irresistible impulses. As stated by Packer: "The insanity defense

cannot tolerate psychiatric testimony since the ethical foundations of

the criminal law are rooted in beliefs about human rationality,

deterribility, and free will. These are articles of moral faith rather

than scientific fact."


In the insanity defense we have no variable independent of the

criminal behavior we are studying. Insanity refers to a class of

behaviors known by observing the behavior of the patient, and

criminality is a class of behavior likewise known by observing the

behavior of the defendant. We are involved in classification and

labels. Where we have one class of behaviors labeled as schizophrenia,

and the other class labeled as crimes, what we have are two

co-existing classes of behavior in the same individual, and not a

cause or effect relationship (Simon, 1988;47). A person can be

Catholic and commit a robbery without a casual relationship existing;

likewise, a person can be schizophrenic and a robber without a casual

relationship existing between the two classes of behavior. Coexistence

does not show a casual relationship. Behavior cannot cause behavior.

What we must do, in order to prove a relationship between mental

illness and criminal behavior is produce some independent link between

the two classes of behavior on a biochemical level. We must have a

definition of mental illness independent of the behavioral symptoms in

order to establish a casual relationship between crime and mental

illness. There is such a view and it is termed the Biological

Psychiatric view. The view basically states that there is some defect

or malfunction in the actual make-up of the brain of an individual

which causes schizophrenia. This same defect then causes the criminal

behavior such as robbery or murder. The problem here is that we have

no actual way of mapping the brain and conclusively determining

exactly what portion thereof is responsible for either type of

behavior much less that one area is responsible for both. In essence

even if true this theory is unprovable. There is also a statistical

relationship between crime and mental illness. Guttmacker and Weihofen

found 1.5 percent of the criminal population psychotic, 2.4 percent

mentally defective, 6.9 percent neurotic, and 11.2 percent

psychopathic (Jeffery, 1985:66). These figures are very unconvincing.

Additionally they are based on old diagnostic categories and

procedures which are most unreliable. Also, the meaning of neurotic or

psychotic or psychopathic is uncertain within the context of these

studies and they do not refer to modern biological categories of brain

disease. Terms such as insanity, mental illness, and mens rea have no

scientific meaning, therefore we must leave as unspecified and

uncertain the relationships between insanity, mental illness and

criminal law. We certainly cannot conclude that mental illness bears

any relationship to diseases of the brain, nor can we conclude that

mental illness or insanity causes criminal behavior.


Not only is there no agreement as to the meaning of insanity

and mental illness, but to add further confusion, there is a school of

thought that states that mental illness is a myth and does not exist.

This approach is found in the works of such persons as Thomas Szasz

(1961;1963) who argues that mental illness is a myth and label applied

to behavior by psychiatrists who are making political and ethical

decisions, and Laing (1969;1971) who claims that labels are being used

by society to impose violence and control on people. View such as

these and others deny the physical and biological basis of behavioral

disorders. They separate completely biology and behavior, brain and

behavior, and mental and physical. The fact that we refer to "mental"

disease has been cited as evidence that we do not regard it as disease

but as something outside the realm of biological science. Szasz

states, for example, that the psychiatrist confuses physical disease

and neurological disorders with mental diseases. A study in evidence

of this was done by Rosenhan (Ziskin, 1975:54) known as "Being Sane in

Insane Places." Rosenhan, a psychologist, placed eight normal people

in mental hospitals as "pseudo-patients." They were diagnosed as

schizophrenic, and later on when they appeared normal, rediagnosed as

schizophrenia in remission. After one experiment one hospital

challenged Rosenhan to send them "pseudo-patients" during the next

several months. At the end of the period the hospital announced that

they had discovered that 12 percent of their admission were

"pseudo-patients" from Rosenhan went in fact none had ever been sent.


As we have already seen, there is much confusion dealing with

the placement of insanity and mental illness, it's definition, and

even it's very existence. We have likewise seen the use of several of

the various testing techniques used to determine mental illness and

their shortcomings. This information alone would lead us to believe

that the insanity defense needs at least to be revised and improved in

many areas. What we have looked at thus far is what precedes the

actual judgment of sanity. What we have not looked at, however, is

that implementation of the actual judgment of sanity. That is to say,

the actual results of the defense when successful. I believe that it

is here that we will see the most heinous travesties of justice. There

are several decisions which can be reached when insanity is at last

proven. These judgements include not guilty by reason of insanity

(NGI), and guilty but mentally ill (GMI), with the later verdict not

being implemented until the early eighties in an attempt to reform the

insanity defense and decrease the amount of NGI verdicts. The NGI

verdict is the more dangerous verdict and the one which I believe has

the strongest argument against the insanity defense. The objection

here is that it allows dangerous men to return to the streets where

they commit heinous crimes. Of the 300 persons committed on NGI

verdicts 80 percent were released from mental hospitals by

psychiatrists, and in several instances these mental patients went on

to kill again (Jeffery, 1985;73). My belief is that psychiatrists and

mental hospitals do not cure the mentally ill. This is the reality of

the insanity defense which I find irrefutable; in many cases criminals

are released due to loopholes such as the insanity defense to simply

commit the same crime again. Even is these cases make up 10 out of

100,000, there now exist 10 crimes that need not have happened. The

guilty but mentally ill approach has three serious flaws. First it

strikes indirectly at the mens rea requirement, introducing the

slippery notion that the accused had partial, but not complete,

criminal intent. Second, it creates a lesser and included offense that

judges and juries may choose as simply a compromise verdict. They

believe the accused probably did something wrong and deserves some

punishment, but they are unwilling to bring in a verdict of guilty on

the top charge. The GMI verdict would allow them to split the

difference. Finally the GMI verdict is fraudulent on the issue of

treatment. As proposed, it makes no provision for treatment of the

person who has been declared mentally ill. The GBI option has already

proved to be a bogus reform. A 1981 Illinois law added the GMI as an

additional verdict, retaining the traditional insanity defense. In

Cook County, verdicts of not guilty by reason of insanity actually

increased from 34 to 103 between 1981 and 1984. At the same time GMI

went from 16 in 1982, the first year the option was available, to 87

in 1984. There has been much evidence of a "hydraulic" effect that was

contrary to the law's intent. In both Illinois and Michigan, GMI

verdicts involved people who would otherwise have been found guilty,

not defendents who would have been found not guilty by reason of

insanity (Walker, 1994;155-156). The real function of the GBI option

is to appease public opinion. The public has little concern for the

details of what actually happens to a mentally ill criminal defendent.

Basically, it wants a symbolic statement of "guilty." In practice, the

GMI verdict has as much meaning as "guilty but brown eyes." How

dangerous is the GMI verdict? As we say with the NGI verdict, many

extremely dangerous mentally ill criminals were simply released onto

the streets where they committed the same crimes. Does the GMI verdict

solve this problem? We have some "natural experiments" on this questio

rising from some court decisions. A 1971 decision forced to

reassessment of 586 inmates of Pennsylvania's Fairview State Hospital

for the Criminaly Insane who were placed there under the GMI verdict.

Over two-thirds were eventually released. Over the next four years, 27

percent were rearrested. Eleven percent were rearrested for violent

crime. Including some others who were rehospitalized for a violent

act, a total of 14.5 percent of those released proved to be dangerous.


Abolishing the insanity defense is easier said than done for

the simple reason that the mens rea requirement remains a fundamental

legal principle. The proposal that "mental condition shall not be a

defense to any charge of criminal conduct" could be interpreted in one

of two ways. The broader interpretation would mean that absolutly no

aspect of mental condition could be taken into account. In effect,

this interpretation would abolish the mens rea requirement altogether.

The prosecution would not have to prove anything about the accused's

mental state. This is unneccessarry. For one thing, it would wipe out

the distintions that separarte first-degree murder, second-degree

murder, and manslaughter. It is doubtful that anyone againt the

insanity defense would choose to take this approach. So sweeping, in

fact, would be it's effect, that it would probably be declared

unconstitutuional. A more limited reading of the wording "mental

condition shall not be a defense to any charge of criminal conduct"

would mean that an affermative plea of "not guilty by reason of

insanity" could not be raised. The crucial distinction here is drawn

between affermative and ordinary defenses. An ordinary defense is

simply an attempt to shown that the prosecution has failed to connect

the accused with the crime, a defense used in everyday law. An

affermative defense is raised when the prosecution has connected the

accused with the crime, as in an example of self-defense. The defense

argues that, yes, the accused did shoot and kill the person and did so

intentionally, but because the act was commited in self-defense the

accused does not bear criminal responsibilty for it. The same is true

in the case of a criminal act commited under duress. The insanity

defense, in this respect, is an affermative defense. It is this usage

that needs to be abolished. In cases such as self defense it may be an

adequate and totally acceptable defense, for in how many cases do you

hear of a man being aquitted due to a self-defense plea returning to

the streets in order to kill again? To draw a comparison between the

two and argue that both defenses are neccessarry to the total order is

naive and unfounded.


The law of insanity involves the conceptes of mens rea and

punishments, as does the criminal law in general. Insanity is a legal

concept, not a medical concept, and insanity is defined within the

context of an adversary system wherin psychiatrists and lawyers battle

one another over the meaning of terms such as "right and wrong" and

"ability to control one's behavior." Mental illness and mental disease

are psychoanalytic concepts, not scientific concepts. Mental illness

is defined by talking to people or by giving them written tests, and

there is no agreement among psychiatrists as to the meaning of this

illness or whether or not it really exists. Some psychiatrists call

mental illness a myth. The psychoanalyst has not been successful in

treating or predicting mental illness. The psychoanalyst has never

established a casual relationship between mental illness and criminal

behavior. The insanity defense would require both a mental illness and

a relationship between the illness and the criminal behavior, neither

of which could be scientificly established. Of the criminals both

aquited and convicted using the insanity defense, a good number have

shown conclusive evidence of recidivism. Many dangerous persons are

allowed to return to the streets and many non-dangerous persons are

forced into facilities due to an insanity plea adding further

confusion and injustice within both the legal and medical systems. In

my opinion the iunsanity defense is impossible to maintain on the

basis of rules such as the M'Naghten Rule, and the relationship

between law and psychiatry must be reestablished on a more scientific

level, based on the neurological work now going on in the brain

sciences. The insanity defense is impracticle in it's present usage

and should therefore be abolished.


Society has long recognized the need to distinguish between those defendants charged with a crime who are and those who are not responsible for their acts.[1][2] The insanity defense exists to identify which individuals fall into the latter category because of a mental disability. When the nature of defendants’ mental impairments are such that they are not criminally responsible for their acts, it is not only unjust to impose criminal liability and punishment, but it is also ineffective.[2] Therefore, the Mental Health America’s position is as follows:

  • It is vital that states provide for the ongoing availability of a complete insanity defense resulting in a verdict of not guilty by reason of insanity.
  • When the insanity defense does not apply, the availability of mens rea and diminished capacity defenses remains critically important.
  • “Guilty but mentally ill” laws should be abolished as they are ineffective, unjust and misleading.
  • States must provide individuals who are acquitted by reason of insanity with appropriate, recovery-based treatment, rather than treat these defendants as if they have been found guilty.
  • The decision whether to plead insanity must be entirely the defendant’s, although courts should take action to ensure that the defendant is capable of understanding the consequences of the decision.

The Insanity Defense

Criminal sanctions promote public safety through the deterrent effect of the punishment itself and through the stigma of a criminal conviction. Criminal sanctions also further retributivist goals. Without blameworthiness, however, punishment is not justified.[1] When an individual is determined to be not criminally responsible, acquittal via a verdict of “not guilty by reason of insanity” (NGRI) is the only appropriate action. Since concerns about public safety and the need for treatment usually remain after acquittal, these concerns should be addressed through involuntary treatment in mental hospitals rather than through confinement in prison.

Necessary Components of a Comprehensive Insanity Defense

In order to effectively distinguish between those who are and those who are not criminally responsible for their acts, the insanity defense must contain both a “cognitive” prong and a “volitional” prong.[3] That is, an insanity defense should exculpate both those who are unable to understand that their act is wrong, as well as those who are unable, due to mental disability, to control their actions.

Section 4.01 of the Model Penal Code (MPC), promulgated by the American Law Institute (ALI),[4] provides a comprehensive insanity defense. Section 4.01 of the MPC remains substantially unchanged from when it was initially drafted in 1962 and currently provides as follows:

Section 4.01: Mental Disease or Defect Excluding Responsibility.

(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he [or she] lacks substantial capacity either to appreciate the criminality/wrongfulness of his [or her] conduct or to conform his [or her] conduct to the requirements of the law.

(2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

This formulation represents the consensus of American legal scholars on the appropriate scope of the insanity defense.[3] § 4.01(1) establishes both “cognitive” and “volitional” prongs, ensuring that the defense is appropriately inclusive, but § 4.02(2) minimizes the risk that the defense will be over inclusive or actually encourage repeated criminal activity.[5] Mental Health America (MHA) endorses the MPC formulation of the insanity defense.

The Insanity Defense in Practice

Despite public fears, defendants do not abuse the availability of the insanity defense. In felony cases, the defense is invoked less than 1% of the time, and even when it is employed, it is only successful 25% of the time.[6] Further, in approximately 70% of the cases in which the defense has been successfully employed, the prosecution and defense have agreed on the appropriateness of the insanity plea before the trial.[6] That individual invocations of the defense are contested relatively infrequently suggests that it is no more likely for a defendant to be incorrectly found not guilty by reason of insanity than to be incorrectly found not guilty for any other reason. Finally, there is a high likelihood of court-mandated treatment following an insanity acquittal, often lasting a substantial length of time, which serves protect the public from defendants who may be dangerous and also to discourage people from pretending to be mentally ill in order to use the defense.[7] These realities all refute perceptions that the insanity defense creates a loophole in criminal liability.

Although the wariness with which the public often views the insanity defense is unmerited, some states’ insanity laws nonetheless reflect this suspicion. After the MPC was first promulgated, most states initially incorporated identical or substantially similar defenses into their laws. Since the late 1970s, however, many states have taken action to limit their insanity defense laws and to bring them back toward pre-MPC formulations.[8] As of 2004, only 20 states still had insanity defense laws that incorporated the MPC formulation in its entirety or in a substantially similar fashion.[9] As of 2010, four states (Idaho, Kansas, Montana, Utah) had eliminated the insanity defense entirely,[10] and the remainder have limited the insanity defense to the cognitive prong.[9]

The two-pronged protection of § 4.01 is necessary in order to comply with two different constitutional requirements: due process and the prohibition against cruel and unusual punishment.[11] In considering these issues, however, the Supreme Court has left considerable discretion to state courts. The Court has indicated that states may be required to provide at least some minimal defense based on mental illness, but has not yet found a state’s law to be below that minimum and has declined to specify exactly what that minimum entails. The court upheld Arizona’s limited insanity defense in Clark v. Arizona,[12] and denied certiorari in Delling v. Idaho,[13] a case alleging that Idaho’s replacement of the insanity defense with a “guilty but mentally ill” verdict constitutes a due process violation. Still, three justices dissented from the Court’s denial of certiorari in Delling, arguing that Idaho’s practice does violate the constitution. MHA agrees with this dissenting position.

MHA strongly opposes the popular, scientifically-unfounded belief that mental illness predisposes a person to act violently. See MHA Position Statement 72, Violence: Community Mental Health Response, http://www.mentalhealthamerica.net/positions/violence Thus, restricting the insanity defense would not enhance public safety.

The Mens Rea and Diminished Capacity Defenses

To be guilty of a crime, a person must intend to do the act that the state seeks to punish. This “mens rea” is a constitutional requirement, although courts have allowed states to limit it in certain ways. Thus far, the Supreme Court has held that a diminished capacity defense is not constitutionally guaranteed. But Mental Health America believes that people accused of crimes should be able to assert mens rea and diminished capacity defenses at trial using expert psychological evidence.

Defining the Defenses

In anything more than trivial offenses, a finding of guilt in a criminal trial generally requires some form of mens rea, or “guilty mind,” often expressed as knowledge or intent.[14] A defendant that does not have the required mens rea is not guilty of the crime.[15] This is the mens rea defense.

A diminished capacity defense is different from a mens rea defense, but the two overlap considerably and there is not always a clear distinction between the two. A diminished capacity defense allows for mitigation of a criminal conviction based on the defendant’s mental impairment, even if the insanity and mens rea defenses have both failed.[16] The diminished capacity defense reflects the notion that a defendant, while guilty, may, nevertheless, be guilty of a less serious crime due to  mental impairment.

The Defenses in Practice

A crime’s required mens rea is a critical element of the offense, and without it a defendant cannot be found guilty.[15] However, some courts have upheld state laws that interfere with this requirement. The Supreme Court in Clark upheld Arizona’s rule that effectively precludes the use of most psychological evidence in making a mens rea or diminished capacity defense at trial, and instead relegated it to use only in pleading insanity.[17] In so holding, the Court simultaneously limited the defendant’s ability to establish a mens rea defense and declared that diminished capacity defenses are not constitutionally required. As of 2007, only three states still allowed a diminished capacity defense.[18]

As the dissent in that case noted, the practical effect of this rule is that “a person would be guilty of first-degree murder if he knowingly or intentionally …committed the killing under circumstances that would show knowledge or intent but for the defendant’s mental illness.”[19] MHA joins this dissent in arguing that such a rule is unconstitutional because it results in a guilty verdict even when the defendant did not satisfy a critical element of the crime. Moreover, even if the defendant possessed the required mens rea, the mental illness may remain relevant to determining the extent of his or her blameworthiness, thus necessitating a diminished capacity defense as well.

The MPC Approach

The MPC both assures a mens rea defense and establishes a limited diminished capacity defense in the same section, which provides as follows:

Section 4.02: Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense; Mental Disease or Defect Impairing Capacity as Ground for Mitigation of Punishment in Capital Cases.

(1) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind that is an element of the defense.

(2) Whenever the jury or the Court is authorized to determine or to recommend whether or not the defendant shall be sentenced to death or imprisonment upon conviction, evidence that the capacity of the defendant to appreciate the criminality [wrongfulness] of his [or her] conduct or to conform his [or her] conduct to the requirements of law was impaired as a result of mental disease or defect is admissible in favor of a sentence of imprisonment.

Viewed in light of § 4.01, § 4.02 indicates that mens rea and diminished capacity defenses are to be available independently of the insanity defense. § 4.02(2) provides a diminished capacity defense only in capital cases. While this formulation is more protective than the current law in the vast majority of states, the diminished capacity defense should not be limited to capital cases. A broader, but still sufficiently limited, defense would allow diminished capacity mitigation in all specific intent crimes, not only in capital crimes.

Guilty but Mentally Ill Laws

Laws establishing a “guilty but mentally ill” (GBMI) verdict are inappropriate for two reasons. First, they are inappropriate because the GBMI verdict is no different in practice from a finding of guilty. Second, they are inappropriate because this alternative to the insanity defense may confuse jurors. These fundamental problems persist whether the GBMI verdict is provided in addition to, or as a replacement for, the NGRI verdict.

A GBMI verdict provides no benefit to society or to criminal defendants because it has the same consequences as a guilty verdict.  Someone found GBMI may be given any sentence that she or he could have been given if found guilty.  That includes a sentence of death.[20]  Virtually every person found GBMI is sent to prison.   Persons found GBMI are entitled to mental health services while imprisoned.  However, they have no greater right to mental health services in prison than those simply found guilty.  That is because all persons confined in prison have a constitutional right to mental health services.[21] While GBMI statutes typical permit defendants to be transferred to mental hospitals, these provisions are permissive rather than mandatory and are rarely utilized.[22]

Because the GBMI verdict is indistinguishable from the guilty verdict, GBMI laws serve no purpose other than to confuse jurors. Jurors may understandably believe that the GBMI verdict is a compromise between the NGRI and guilty verdicts, and thus the availability of a GBMI verdict may cause them to find a defendant GBMI when they would not have been willing to give a guilty verdict. This issue is compounded by the fact that jurors are often wary of the NGRI verdict. [23] Although empirical evidence from actual trials is not yet available, researchers have considered, in the mock trial setting, the impact on jury preferences of the simultaneous availability of NGRI and GBMI verdicts.[24] Research indicates that juries may use GBMI as a mechanism for “avoiding the difficult moral and social issues raised by an insanity defense.”[24]

Defendants’ challenges of the GBMI verdict as a due process violation have yet to succeed.[25] As of 2009, over 20 states provided for a GBMI verdict.[26]  Four of these states had eliminated the NGRI verdict entirely and replaced it with GBMI.[10] The remaining 16 states with GBMI laws allow for both an NGRI verdict and a GBMI verdict.  In either context, the GBMI verdict is inappropriate and seriously undermines the important policies that require maintaining the insanity and diminished capacity defenses, discussed above.

The Consequences of Pleading Insanity

An individual who is acquitted on the basis of insanity should be treated. However, it is critically important, both out of concern for promoting the public safety and out of concern for the defendant’s rights, that the purpose of this treatment is rehabilitation, not to serve as a punitive alternative to imprisonment. That is, the aim of the treatment should be to eventually release an individual into the community, not to punish that individual for a crime for which the defendant has been judged not morally culpable.

In Jones v. US, the Supreme Court found it constitutional for states to confine insanity acquittees in a mental health facility for periods longer than they would have been imprisoned had they been found guilty of the crime.[27] In reality, this routinely occurs.[28] This practice is appropriate only for as long as the additional period of confinement is clinically justified and serves a valuable rehabilitative purpose. It is critical that insanity acquittees are released when they are no longer dangerous to society.

Allowing these extended treatment periods may very well further legitimate goals, but the policy of long-term treatment after NGRI verdicts increases the risk of treatment being used as a pretext for punishment. In order to protect against this, states should adopt rigorous standards and procedures.. Review boards that are as independent of the criminal justice system and of the courts as possible are one mechanism to achieve this goal. These boards serve to monitor an insanity acquittee’s clinical progress and evaluate the need for continued treatment on an ongoing basis. The modern trend in states with a full insanity defense is toward use of such a system.[29] Independent review boards serve to place the treatment and release decision-making process in the hands of those most qualified to make such determinations, and those who are most likely to act only out of public safety and treatment concerns.

The Decision to Plead Insanity

People found not guilty by reason of insanity will often be confined longer than they would have been had they been found guilty.[30]  The conditions of their confinement will also be quite restrictive.  Of course, it is true that in most jurisdictions most persons with serious mental illnesses will be safer and receive better care in a mental hospital than in a prison.  But respect for individual autonomy requires that the defendant be permitted to choose between these two difficult outcomes.  It is critical that the decision to plead insanity is left to the defendant.

However, precisely because the decision whether to plead insanity is difficult, it is important that courts insure that criminal defendants have the capacity to make this choice and are provided with all of the relevant information. The likely length of confinement after an NGRI verdict and the likely treatment to be received are critical factors in deciding whether or not to invoke the insanity defense.  And these consequences may be difficult to predict. Just as courts must ensure that defendants are competent to plead guilty and are aware of the consequences, so too should courts ensure that defendants are competent to plead insanity and are informed about the likely consequences of the plea.[31]

Call to Action

MHA encourages policy and legal changes as necessary in order to achieve the following goals:

  • States should provide a full insanity defense. When defendants’ mental illnesses prevent them from understanding the wrongfulness of the act or prevent them from controlling their behavior, they should be acquitted by reason of insanity. Criminal liability in these instances is neither appropriate nor effective.
  • Even if a defendant does not qualify for an insanity acquittal, the mental illness may remain critically relevant to the criminal proceedings. States should therefore also provide for separate, albeit related, mens rea and diminished capacity defenses.
  • “Guilty but mentally ill” verdicts are ineffective and unjust.  States should neither replace the insanity defense with this disposition nor offer it as an alternative to judges and jurors considering an insanity defense.
  • People acquitted because of a finding of  insanity should be treated in an appropriate clinical setting. The purpose of this treatment should be rehabilitative, not punitive.
  • Because of the weighty implications of the decision to plead insanity, the defendant must be the one to decide whether to use the insanity defense.  However, courts should act to ensure that the defendant is capable of understanding the consequences of the decision. Until a defendant can do so, the state should not find him or her fit to stand trial.

Effective Period

The Mental Health America Board of Directors approved this policy on June 8, 2014. It will remain in effect for five (5) years and is reviewed as required by the Mental Health America Public Policy Committee.

Expiration: December 31, 2019


[1] Livermore, Joseph and Paul Meehl. The Virtues of M’Naghten. Minnesota Law Review. Vol. 51. 789: 790-793 (1966).

[2] Winkel, Susan. Free Fill, Responsibility & Forensic Psychiatry: An Exploration of Justifications for the Insanity Defense. GGzet Wetenschappelijk, Vol. 17, No. 1: 36, 44 (2013).

[3] Bonnie, Richard. The Moral Basis of the Insanity Defense. American Bar Association Journal. Vol. 69, No. 2: 794, 795 (1983).

[4] About the American Law Institute. American Law Institute. Available at http://www.ali.org/index.cfm?fuseaction=about.overview (Last visited Feb. 15, 2014).

[5] Robinson, Paul. An Overview of Mental Illness Under U.S. Criminal Law. University of Pennsylvania Law School, Public Research Paper, 2 (2013).

[6] Costanzo, Mike and Daniel Krauss. Forensic and Legal Psychology. Worth Publishers, 206 (2012).

[7] Braff, Jeraldine, et al. Detention Patterns of Successful and Unsuccessful Insanity Defendants. Criminology, Vol. 21, No. 3: 439, 446 (1983).

[8] Robinson, Paul and Markus Dubber. An Introduction to the Model Penal Code. University of Pennsylvania Law School, 15. Available at http://www.law.upenn.edu/fac/phrobins/intromodpencode.pdf (Last visited Feb. 15, 2014).

[9] State Court Organization, The Defense of Insanity: Standards and Procedures. Department of Justice. Table 35, 209-212 (2004). Available at http://www.bjs.gov/content/pub/pdf/sco04.pdf (Last visited Feb. 15, 2014).

[10] Lillienfeld, Scott and Hal Arkowitz. The Insanity Verdict on Trial. Scientific American, Dec. 23, 2010. Available at http://www.scientificamerican.com/article/the-insanity-verdict-on-trial/ (Last visited Feb. 21, 2014).

[11] Robitscher, Jonas and Andrew Haynes. In Defense of the Insanity Defense. Emory Law Review, Vol. 31: 9, 59 (1982).

[12] See Clark v. Arizona, 548 U.S. 735, 755 (2006).

[13] See Delling v. Idaho, 133 S.Ct 504, 504 (2012).

[14] Arenella, Peter. The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage. Columbia Law Review, Vol. 77, No. 6: 827, 829 (1977).

[15] Parry, John and Eric Drogin. Mental Disability Law, Evidence, andTestimony. American Bar Association, 207 (2007).

[16] Id. at 208.

[17] Clark v. Arizona, 548 U.S. 779.

[18] Parry at 209.

[19] Clark v. Arizona, 548 U.S. 797 (Kennedy, J., dissenting) (emphasis added).

[20]See People v. Crews, 122 Ill.2d 266, 294 (1988); State v. Anderson, 966 So.2d 973, 984 (2008).

[21]  See Estelle v. Gamble, 97 S.Ct 285, 291 (1976)(holding that deliberate indifference to prisoner’s serious medical needs constitutes a violation of the 8th Amendment’s prohibition again cruel and unusual punishment). See also Brown v. Plata, 131 S.Ct 1910, 1947 (2011)(Reaffirming that the 8th Amendment requires the state to provide medical treatment, specifically mental health treatment, to prisoners).

[22] See, e.g., 730 ILCS 5/5-2-6.

[23]Smith, Steven. Neuroscience, Ethics, and Legal Responsibility: The Problem of the Insanity Defense. Springer. Journal of Science and Engineering Ethics, Vol 18: 475, 478 (2012).

[24 ]Melville, John and David Naimark. Punishing the Insane: The Verdict of Guilty but Mentally Ill. American Academy of Psychiatry Law Journal, Vol. 30: 553, 553 (2002).

[25] See, e.g.,People v. Lantz, 186 Ill.2d 243, 255 (Reversing an appellate court decision that held that Illinois’s GBMI law violates due process).

[26] Kutys, Jennifer and Jennifer Esterman. Guilty but Mentally Ill (GBMI) vs. Not Guilty by Reason of Insanity (NGRI): An Annotated Bibliography. The American Society of Trial Consultants. The Jury Expert, 28. Available at http://www.thejuryexpert.com/wp-content/uploads/KutysTJENov2009.pdf (Last visited Feb. 19, 2014).

[27] See Jones v. US, 463 U.S. 354, 370 (1983).

[28] Silver, Eric. Demythologizing Inaccurate Perceptions of the Insanity Defense. American Psychiatric Association Journals, Law and Human Behavior, Vol. 18, No. 1: 63, 63 (1994).

[29] Hafemeister, Thomas and John Petrila. Treating the Mentally Disordered Offender: Society’s Uncertain, Conflicted, and Changing Views. Florida State University Law Review, Vol. 21: 729, 749-750 (1993); Shaefer, Michele and Joseph Bloom. The Use of the Insanity Defense as a Jail Diversion Mechanism for Mentally Ill Persons Charged with Misdemeanors. American Academy of Psychiatry Law Journal, Vol. 33: 79, 81 (2005).

[30] Ellis, James. The Consequences of the Insanity Defense: Proposals to Reform Post-Acquittal Commitment Laws. Catholic University Law Review, Vol. 35: 961, 1019 (1986).

[31] Reisner, Andrew, et al. Competency to Stand Trial and Defendants Who Lack Insight Into Their Mental Illness. American Academy Psychiatry Law Journal, Vol. 41: 85, 86 (2013).

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