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Copyright (c) 2005 Trustees of Indiana University
Indiana Law Journal

Fall, 2005

81 Ind. L.J. 1479

LENGTH: 13988 words

NOTE: The Insanity Defense in the Twenty-First Century: How Recent United States Supreme Court Case Law Can Improve the System



* J.D. Candidate, 2006, Indiana University School of Law--Bloomington; B.S., 2003, University of Illinois at Urbana-Champaign. I would like to thank my parents, Christine and Gary, and my sister Catherine for your love and encouragement these past three years. I would not be where I am today without your constant support. A special thank you to Professor Joseph Hoffmann for his insightful comments. Thank you also to Tess, Zack, and the Notes and Comments Editors for your help and suggestions.

... A mentally ill prisoner "responded to the stress [of hearing another prisoner's murder] by cutting himself, and was subsequently given a disciplinary report and placed in an isolation cell for 'destruction of state property.'" ... This recommendation also involves shifting the responsibility of selecting the appropriate punishment of the mentally ill offender from the lay jury to a mental health sentencing board composed of a variety of professionals. ... In order to successfully plead the insanity defense, a defendant must not only show that he is mentally ill, but must also show that there was a nexus connecting the mental illness and the criminal offense at issue. ... Society's recognition of a moral difference between the acts of a sane person and a mentally ill person results in the insanity defense serving dual roles in the criminal justice system: 1) as a way to distinguish between offenders who are able to conform their conduct to the law as a result of punishment from those offenders who are not able to conform their conduct to the law despite punishment, and 2) as a method of ensuring offenders posing a threat to society are restrained. ... The mentally ill offender is essentially undeterrable since he has little, if any, moral culpability. ... The GEI verdict supports the premises underlying both the criminal justice system and the insanity defense. ...  


A mentally ill prisoner "responded to the stress [of hearing another prisoner's murder] by cutting himself, and was subsequently given a disciplinary report and placed in an isolation cell for 'destruction of state property.'" n1 Examples such as this illustrate that the treatment of mentally ill offenders is a debated issue in criminal law because of the danger posed to society by those inflicted with mental illness n2 and because of the significant number of mentally ill offenders in our correctional system today. n3 In fact, this debate over how the criminal justice system should handle mentally ill offenders has been present since the insanity defense came into existence. n4 Despite recent legislative action targeted at non violent mentally ill offenders, n5 the judicial system must be improved in order to deal more effectively with all mentally ill offenders, regardless of the degree of crime for which they stand accused.

The underlying problem of this debate centers around the reality that mentally ill offenders, particularly violent offenders, are not given the opportunity to obtain adequate rehabilitative treatment while serving their sentences. Therefore, this Note offers a two-part recommendation for remedying this problem by increasing the  [*1480]  effectiveness of the rehabilitative treatment received by mentally ill offenders. This recommendation includes: 1) adoption of a guilty-except-for-insanity verdict and 2) creation of a mental health sentencing board. This recommendation is based on a combination of the current insanity defense system's components and improvements developed from a recent line of case law that began with Apprendi v. New Jersey. n6 In Part I, a definition of the insanity defense introduces the criminal justice system's basic approach to dealing with mentally ill offenders. Part I also discusses the policy rationale behind the insanity defense, which will provide a basis to later evaluate the effectiveness of the current treatment of these offenders. Part II illustrates the evolution of public views regarding the insanity defense by providing an overview of the history of the insanity defense and the treatment mentally ill offenders receive. Part III of this Note then differentiates between common public misconceptions and justified public concerns regarding the insanity defense. Finally, Part IV addresses the justified public concerns by recommending that a revision should be made to the current system. By creating a more accurate and uniformly applied insanity standard, more mentally ill offenders will be appropriately determined "mentally ill," thereby providing for them the opportunity to receive effective rehabilitative treatment. This recommendation also involves shifting the responsibility of selecting the appropriate punishment of the mentally ill offender from the lay jury to a mental health sentencing board composed of a variety of professionals. Based on the Apprendi line of case law, the mental health sentencing board would have the authority to select the appropriate method of punishment falling within the boundaries of the jury-determined sentencing range in order to meet the mental health needs of each offender.


A. The Insanity Defense Defined

All state and federal courts find criminal liability only when the defendant's conduct fulfills every element of the charged offense. n7 The United States Constitution requires that the prosecution prove each element beyond a reasonable doubt. n8 Even when the prosecution has met this burden of proof, the insanity defense serves as an affirmative defense for the defendant. By pleading the insanity defense, the defendant acknowledges that he committed the crime, but asserts that he is nonetheless "not guilty" due to his mental illness. More specifically, a plea of not guilty by reason of insanity (NGRI) claims that due to an extenuating circumstance (mental illness), the defendant should not be held morally blameworthy for the crime. n9 The reasoning  [*1481]  behind this plea is that the mental illness affects the defendant's ability to comprehend his actions and conform his conduct to the law. n10 This rationale illustrates the notion that there cannot be punishment when blame cannot be imposed. n11

By focusing on blameworthiness, the insanity defense addresses the long-standing connection between mens rea/guilty mind and culpability. The United States Supreme Court describes mens rea as "the ancient requirement of a culpable state of mind." n12 Mental illness itself does not preclude criminal responsibility. In order to successfully plead the insanity defense, a defendant must not only show that he is mentally ill, but must also show that there was a nexus connecting the mental illness and the criminal offense at issue. n13

B. The Policy Rationale Underlying the Insanity Defense

The insanity defense addresses the policy issues inherent in the question of criminal culpability: n14 the connection between responsibility and blameworthiness. The view is that in a criminal justice system based on free will, n15 the acts of mentally ill persons lacking complete free will cannot fairly be judged in the same way as the acts of sane, free-willed persons. Therefore, the insanity defense reflects the "criminal justice system's view that the conduct of individuals who lack some degree of mental capacity should not be judged according to general volitional and cognitive principles." n16 Society's recognition of a moral difference between the acts of a sane person and a mentally ill person n17 results in the insanity defense serving dual roles in the criminal justice system: 1) as a way to distinguish between offenders who are able to conform  [*1482]  their conduct to the law as a result of punishment from those offenders who are not able to conform their conduct to the law despite punishment, n18 and 2) as a method of ensuring offenders posing a threat to society are restrained. n19 The insanity defense is used to identify offenders for whom punishment would not serve the three policy rationales of deterrence, retribution, and rehabilitation.

Punishment of the mentally ill does not promote the normal goal of punishment: deterrence. The mentally ill offender is essentially undeterrable since he has little, if any, moral culpability. n20 And if the mental illness has caused loss of free will, the offender has lost his ability to freely choose whether or not to recommit the offense, and he is therefore undeterrable through punishment. n21 Additionally, punishment of the mentally ill precludes the deterrence of others because sane would-be wrongdoers cannot identify with the mentally ill who are punished and are therefore also not deterred from committing a crime. n22

Punishment of the mentally ill also runs counter to the retributive theory of criminal justice, which holds that it is only just to punish those defendants who "freely choose to do wrong." n23 Since mentally ill offenders lack free will, they do not affirmatively choose to commit a crime in the same way in which a sane offender decides to commit a crime. Therefore, notions of equity and justice caution against using punishment in the typical retributive way against these offenders.

Similar to the other two policy rationales of punishment, rehabilitation is also inapplicable to mentally ill offenders. Mentally ill offenders do not suffer from a moral defect that is subject to rehabilitation, but instead suffer from a mental disease that is in need of medical treatment. n24 Therefore, mentally ill offenders should be appropriately placed in a secure medical institution, n25 an approach which also addresses the public concern that these offenders pose a threat to society.

C. Historical Development of the Insanity Defense

The insanity defense, existing since ancient times, n26 has undergone significant changes. As the requirements for successfully raising the insanity defense increased over time, the number of successful insanity pleas decreased. By the eighteenth  [*1483]  century, defendants were required to show a complete lack of cognitive ability in order to successfully raise the defense. n27 Jury instructions during this time stated that "no man could be held responsible for an act committed while deprived of his reason." n28 After this time, modern insanity tests began to develop at common law. The first modern insanity test, the M'Naghten Test, was developed in 1843 and is still used by some courts today as a cognitive test of insanity. After the M'Naghten Test, courts began to develop volitional tests of insanity, including the Irresistible Impulse Test and the Durham Test. In 1962, the American Law Institute (ALI) created an insanity test which took into account both cognitive and volitional ability. The current federal test of insanity was created in 1984, largely in response to public outcry over insanity acquittals at that time. Recent modifications of the insanity test have included the mens rea approach and the guilty but mentally ill verdict (GBMI).

In 1843, the first modern insanity test resulted from the famous M'Naghten case. n29 M'Naghten, suffering from schizophrenia, attempted to kill the British Prime Minister but instead killed the Prime Minister's secretary. n30 At trial, M'Naghten was acquitted by reason of insanity. On appeal, the House of Lords devised the famous M'Naghten Test. n31 This purely cognitive test excuses a defendant suffering from "a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing" or a defendant who "did not know he was doing what was wrong." n32 A defendant needs to establish only one of these elements for a successful insanity plea. American courts used the M'Naghten Test as the test of insanity for the next century. n33

The Liberal Era of American criminal law, occurring during the 1960s and 1970s, saw a dramatic increase in the scope and use of the insanity defense. n34 Due to criticisms of the perceived rigidness of the M'Naghten Test, n35 courts adopted other insanity tests. Many states turned to volitional tests of insanity, which were first articulated in the mid-nineteenth century. One volitional test, known as the Irresistible Impulse Test, excuses a defendant whose mental illness "so subverts his will as to destroy his free agency by rendering him powerless to resist by reason of the duress of the disease." n36  [*1484]  This is a very narrow volitional test, since it requires total impairment of volitional capacity. n37

Another broader more recently devised volitional test is the Durham Test, articulated in 1954 by Judge David Bazelon in response to modern scientific discoveries regarding insanity. n38 The Durham Test states that "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." n39 Due partly to its possibility for an expansive definition of insanity, the Durham Test has since fallen out of favor. n40

In response to the ambiguities present in the Durham Test n41 and the "single-minded emphasis on the concept of right and wrong commonly associated with the M'Naghten rule" n42 in 1962, the ALI and Model Penal Code (MPC) developed a test containing both cognitive and volitional prongs, combining the M'Naghten Test and the IIT with recent scientific knowledge. n43 The ALI/MPC Test excuses a defendant who "as a result of mental disease or defect . . . lacks substantial capacity either to appreciate the criminality . . . of his conduct or to conform his conduct to the requirements of law." n44 By use of the words "substantial capacity," "appreciate," and "conform," the ALI/MPC Test attempted to lessen the rigidness of previous insanity tests. n45

During the 1980s, the American criminal justice system began a new era: the Neoconservative Era. n46 During this period, community safety was greatly emphasized, at the expense of the individual rights of the mentally ill. n47 The popularity among the public of the insanity defense dramatically decreased after the successful insanity plea in 1982 by John W. Hinckley Jr., failed assassin of President Reagan, n48 and efforts were made to once again revise insanity tests to prevent similar acquittals in the future. One such test was the current federal insanity test, devised in 1984, n49 which requires a "severe mental illness," rather than the previously less-stringent requirement of a  [*1485]  "mental disease or defect." n50 This test removed the ALI/MPC's volitional prong in favor of a total impairment cognitive prong, n51 excusing a defendant who is "unable to appreciate the nature and quality or wrongfulness of his acts." n52 The 1984 federal test also shifted the burden of proving insanity from the prosecution to the defense. n53

The ideology of the Neoconservative Era also prompted efforts to abolish the insanity defense altogether. Between 1979 and 1983, three states (Idaho, Montana, and Utah) abolished the insanity defense and adopted the mens rea approach. n54 Under this approach, evidence of insanity can only be introduced as a means to rebut the prosecution's evidence of the mens rea element needed to prove the crime.

Another recent development in many jurisdictions is the adoption of the guilty but mentally ill verdict to supplement, or in a few jurisdictions, to replace, the NGRI verdict. The GBMI verdict is used when the offender's mental illness "did not impair him severely enough to meet the legal definition of insanity." n55 Usually, the GBMI defendant receives the normal prison sentence that would be given to a sane offender, but is also given a medical evaluation and necessary treatment according to the state's statutory procedures. n56

A recent review conducted in 2002 by the American Academy of Psychiatry and the Law reported the type of insanity test used by each state. n57 The results of this study reveal that 25 states use the M'Naghten Test, n58 17 states use the ALI/MPC Test, n59 4 states have abolished the insanity defense, n60 3 states utilize the IIT, n61 and 1 state uses the Durham Test. n62

D. History of the Treatment of Mentally Ill Offenders

As the insanity defense evolved, so did the treatment of mentally ill offenders. In comparing these two evolutions, this section reveals a correlation between the scope of the insanity test used at the time and the level of treatment received. In short, the  [*1486]  broader the scope of the insanity defense, the higher the level of treatment mentally ill offenders received.

As the scope of the insanity defense increased during the 1960s and 1970s, n63 a simultaneous shift in the underlying focus on the goals of confinement also occurred. This shift emphasized rehabilitation of mentally ill offenders, instead of punishment. Many believed that scientific advances in mental health treatment would allow these people to one day become productive members of society. n64 Offenders were prescribed anti-psychotic drugs, making them more amendable to treatment efforts. n65 De-institutionalization of treatment efforts was simultaneously taking place, driven by the belief that treatment was more effective if given in familiar community settings. n66

However, the emphasis on rehabilitation was abandoned during the narrowing of the insanity defense in the 1980s. Citing lack of evidence showing the effectiveness of rehabilitation, the "just deserts" model of punishment gained significant support among the public and politicians. n67 The primary goal was no longer rehabilitating mentally ill offenders, but rather guaranteeing appropriate punitive punishment regardless of mental illness. n68 Some states passed mandatory sentencing laws for serious crimes, while other states reinstated the death penalty in order to ensure that mentally ill offenders were placed and remained in prison. n69


The public receives a substantial amount of information regarding the insanity defense from the media, and the portrayal is not always accurate. n70 This inaccuracy is largely a result of high profile cases, which the public uses to form generalizations about the insanity defense. n71

The media gave large amounts of attention to recent cases in which the defendant has invoked the insanity defense, such as the Lee Boyd Malvo trial, n72 the Andrea Yates  [*1487]  trial, n73 the Unabomber case, n74 and the John Hinckley Jr. trial. n75 These cases renewed the insanity defense debate, n76 regardless of whether the defendant was actually mentally ill n77 or whether the insanity plea was ultimately successful. n78

The widespread public belief that defendants frequently use the insanity defense to avoid punishment n79 is largely attributable to high profile cases and the attention the media gives them. The public also believes that the availability of the insanity defense will result in the opportunity for those faking mental illness to avoid punishment. n80 These inaccurate concerns are largely attributable to the public's suspicion of mental illness due to its perceived "invisibility." n81

Based on empirical studies, the insanity defense is not as frequently or successfully used as many believe. According to the Virginia Department of Mental Health, Mental Retardation, and Substance Abuse Services, only one percent of felony defendants nationwide raise the insanity defense. n82 The rate of these defendants successfully  [*1488]  pleading the insanity defense is even lower--less than 0.002%. n83 This low success rate is partially due to the fact that there is little incentive to plead the insanity defense unless the defendant is confident of its success. If the insanity plea is unsuccessful, the defendant is unable to bargain for a reduced charge because an insanity plea is viewed as an admission of committing the crime. n84

Beliefs regarding the abuse of the insanity defense also lack evidential support. n85 Empirical evidence reveals that only a small number of defendants fake mental illness in order to be acquitted; n86 in reality, offenders often deny mental illness. n87 Mental health professionals can usually discover this small percentage of defendants who fake mental illness. Mental health doctors are between ninety-two and ninety-five percent successful in determining whether a defendant is faking mental illness, n88 making abuse of the insanity defense unlikely in reality.


Despite the persistence of public misconceptions regarding the frequency and success of insanity pleas, some justified concerns exist. These concerns, coupled with the fact that mentally ill offenders comprise a significant portion of the criminal justice system, n89 warrant a renewed examination of the insanity defense. The most significant concerns involve the anti-therapeutic nature of the criminal justice system's treatment of the mentally ill, which hinders the achievement of the policy goals of the insanity defense.

 [*1489]  A. The Current System of Treatment

Mentally ill offenders do not receive the most beneficial rehabilitative treatment available. The current system of treatment is best described as "anti-therapeutic." n90 This characterization is supported by the President's New Freedom Commission on Mental Health's 2003 Final Report, which states that "[m]any people with serious mental illnesses . . . remain . . . housed in institutions, jails, or juvenile detention centers. These individuals are unable to participate in their own communities." n91

Studies documenting the harshness of mentally ill offenders' prison sentences state that because of the perception that mentally ill offenders are more dangerous than sane offenders, mentally ill offenders receiving prison sentences often serve longer sentences than similarly situated sane offenders. n92 While serving prison sentences, mentally ill offenders usually receive little, if any, rehabilitative treatment, but instead are targets of abuse and cruelty by sane offenders. n93 Due to the unavailability of adequate mental health treatment, mentally ill offenders are sent to the penitentiary or state correctional facility to serve their sentence among the general prison population. n94 At the end of their prison sentence, mentally ill offenders are often still dangerous when they return to society because they have not received psychiatric treatment in prison. n95 Unlike the danger posed by sane offenders returning to society after serving their sentences, the cause of the danger posed by mentally ill offenders could have been medically treated during their sentences.

B. Failure to Achieve the Policy Goals of the Insanity Defense

Although the public routinely misconceives the insanity defense, some public concerns, particularly those involving the treatment of mentally ill offenders, remain justified n96 but have often been ignored. n97 The public's real concern regarding the  [*1490]  insanity defense is not based on the issue of blameworthiness, but rather it is centered around the issue of at what time the mentally ill are released back into society. n98 Many question whether "treatment for dangerous mental illness is effective" or whether "dangerous mentally ill people can get better." n99 The mentally ill, a group for which we cannot insure that the goals of punishment are carried out, n100 are ineffectively being punished since they are not receiving potentially beneficial mental health treatment. While being punished, the proper placement of those offenders posing a threat to society in a psychiatric treatment facility is not guaranteed in all cases.

A main policy rationale of the insanity defense (as well as the criminal justice system in general) n101 is the assurance that dangerous mentally ill offenders do not pose a threat to society. The best way to accomplish this policy rationale is the restraint of mentally ill offenders in rehabilitative facilities, in which the offender is released, and subsequently monitored, only upon a satisfactory mental health examination. n102 Early release of the mentally ill from prison on parole or from a treatment facility before adequate treatment is received not only poses a threat to society, n103 but also "rob[s] [the offender] of needed psychiatric treatment." n104 Furthermore, early release weakens the public's confidence in the legal system's ability to protect society from harmful individuals. n105

Even when mentally ill offenders are placed in psychiatric treatment facilities, treatment is not used to rehabilitate the offender; the treatment facility merely resembles a "de facto prison." n106 Treatment is used more as a punitive tool than as a rehabilitative tool. n107 Despite the fact that even Congress noted the inappropriateness of retributive punishment, the impairment of the offender's volitional control is often  [*1491]  disregarded for purposes of punishment. n108 Some psychiatrists recognize the highly punitive nature of the treatment being received, calling the commitment of offenders "America's newest form of slavery." n109 Many judges then propagate these views by punitively basing their decisions on stereotypical views that the mentally ill are incompetent and do not exercise enough self-restraint, n110 thus continuing the deficiencies present in the insanity defense system.


The current insanity defense system must be improved in order to appropriately address its deficiencies and the justified public concerns. Two improvements can substantially impact the current system: the adoption of a guilty-except-for-insanity (GEI) verdict and the creation of a mental health sentencing board to determine the treatment of offenders found by a jury to be GEI. When combined, these two solutions will constitutionally ensure that mentally ill offenders are sentenced appropriately and receive the treatment necessary for them to return to society as productive members.

A. Adoption of a GEI Verdict

Presently, there is no uniform insanity test used across the nation. Although the 1984 federal test is used by all federal courts, state courts use different verdicts employing varying insanity tests, n111 all of which have displayed flaws upon implementation. The resulting increase in uniformity of insanity determinations as more states adopt the insanity standard this Note recommends would have two benefits. First, notions of equity and justice will be enhanced, since similar offenders will be treated in the same manner. Second,, since an insanity determination serves as a prerequisite to receiving an effective treatment as part of the sentence, more offenders in need of this treatment will be given the opportunity.

The superior insanity standard that should be adopted is based on Oregon's GEI verdict. Determination of insanity under this standard asks whether "as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of the law." n112 Under this insanity test, defendants would be found guilty of commission of the underlying crime except for insanity if they were unable to conform their conduct to the law (volitional impairment) or appreciate the criminality of their conduct (cognitive impairment) due to a mental illness or defect present at the time of the offense. By taking into account both the  [*1492]  volitional and cognitive abilities of the offender, the GEI verdict avoids the flaws of exclusively cognitive or volitional insanity tests. n113 The GEI verdict appropriately takes into consideration offenders with volitional incapacities that are amenable to treatment in mental health facilities n114 as well as offenders with cognitive incapacities. Additionally, the GEI verdict does not unnecessarily narrow the definition of insanity, thereby forcing the criminal justice system to ignore blameworthiness in order to protect society. n115 The GEI verdict supports the premises underlying both the criminal justice system and the insanity defense. The basic requirement of criminal responsibility, free will, is not disregarded. The policy goals of the insanity defense are furthered because there is a greater probability that the offender will receive rehabilitative treatment through a finding of GEI than through a finding under another insanity standard resulting in a strictly punitive prison sentence. n116

1. Why Other Methods of Determining Insanity Are Flawed

The GEI verdict is a solution to the problems inherent in other methods of determining insanity. Criticisms involving exclusive use of cognitive or volitional determinations of insanity led to the creation of alternative methods of insanity determination. Since these other methods also revealed various flaws, they should similarly be characterized as inappropriate. Except for the GBMI alternative, these insanity tests lead juries to inaccurately find mentally ill offenders insane and thus acquit them. Mentally ill offenders usually return to society upon acquittal, without receiving any treatment. Alternatively, these insanity tests do not accurately identify mentally ill offenders, but instead treat these offenders as sane offenders and sentence them to a regular prison term with no mental health treatment. This scenario also results in mentally ill offenders returning to society after serving their sentences without receiving any treatment.

In addition to the fact that volitional tests n117 of insanity often result in an acquittal and no mandatory treatment for mentally ill offenders, other arguments claim that strictly volitional tests do not accurately determine insanity. The volitional test for insanity fails to properly distinguish between mentally ill offenders and blameworthy offenders capable of free will and instead "creates a huge potential for chaos in the culpability-based criminal justice system we have today." n118 This chaos results because volitional tests for insanity disregard the existence of the offender's free will, which is  [*1493]  a prerequisite for criminal responsibility. Offenders asserting volitional insanity pleas based on predisposition or subjective urge are "asserting simply that their criminal behavior is driven by factors outside their control," not that they lacked the free will upon which to commit the act. n119 Therefore, mentally ill offenders capable of exercising free will are often incorrectly found to be insane, and thus acquitted.

Criticisms of the exclusive use of cognitive ability to determine insanity have focused primarily on the inadequacies of the M'Naghten Test. The M'Naghten Test's analysis of cognitive ability usually reduces the fact-finder's inquiry into whether the actor was aware of his conduct, but it fails to take into account other relevant factors such as "the existence or classification of the mental defect" and volitional abilities, such as the "actor's ability to will, control, or appreciate the consequences of his acts." n120 Offenders found to have the cognitive ability to understand that their conduct was wrong are found guilty, despite other mental impairments that may exist. n121 Psychiatric research subsequent to the creation of the M'Naghten Test revealed that the unconscious mind plays a significant role in a person's actions, n122 illustrating that cognitive ability alone does not control one's actions. Therefore, exclusive use of cognitive ability to determine insanity may also disregard the existence of free will because cognitive tests do not recognize the role of the unconscious mind.

The GBMI verdict n123 is flawed largely because in practice it has not accomplished its theoretical goal: assurance of treatment opportunity. n124 Since courts may impose a prison sentence following a GBMI verdict, these offenders often have no greater chance of receiving treatment than other mentally ill offenders serving regular prison sentences. n125 Additionally, evidence reveals that GBMI offenders are more likely than sane offenders to go to prison and to receive longer sentences for the same offense. n126 Therefore, GBMI verdict systems further precipitate the justified public concern caused by releasing mentally ill offenders back into society without receiving sufficient mental health treatment.

The abolitionist approach/mens rea approach n127 is also flawed, even though initial constitutional due process objections to this approach appear to be unfounded. n128  [*1494]  Despite the substantial decline in the number of acquittals based on the insanity defense following the adoption of this approach, n129 other stages of the system are affected. Empirical evidence reveals that defining the scope of mental illness too narrowly results in an increase in dismissals based on incompetency to stand trial. n130 Additionally, since even severe mental illness rarely negates the required mens rea, the mens rea approach serves little practical use for mentally ill offenders. n131 For example, an offender previously diagnosed with a mental disorder who commits a crime in response to a belief that he would "metamorphos[e] into a new level of existence" will be found guilty, since he intended to commit the crime despite his troubled belief. n132 Since the scope of mental illness is narrowly defined, the criminal justice system is no longer capable of accurately distinguishing between those who are blameworthy and those who do not deserve punishment. n133 Furthermore, the unavailability of an insanity defense will increase justified public concerns raised by the release of mentally ill offenders back into society after serving their prison sentences without receiving any psychiatric treatment. n134

The ALI/MPC Test provides the closest resemblance to a GEI verdict, because it takes both cognitive and volitional abilities into consideration. n135 Even though it receives a substantial amount of support from the courts, this test is flawed in actual application. Despite inclusion of the words "substantial" and "appreciate" to broaden the definition of insanity, it is difficult for fact finders to actually apply this broadened test as articulated. n136

2. Constitutionality of a GEI Verdict

The proposed system for issuing GEI verdicts would dispel any Sixth Amendment challenges that may arise. The Sixth Amendment right to a trial by jury applies to the  [*1495]  determination of guilt or innocence. n137 This right guarantees that a criminal defendant's guilt will be determined by a lay jury of his peers.

Under the proposed system, a lay jury would be given complete authority to issue GEI verdicts to mentally ill offenders. Once the jurors hear all the evidence and facts regarding the defendant's insanity plea during the guilt phase of the trial, they would be able to issue a GEI verdict. Issuance of a GEI verdict would signify that the jury acknowledges that the defendant is technically guilty of the commission of the offense, but should not be held to the same degree of criminal responsibility as a similarly situated sane offender. After issuing a GEI verdict, the jury would also determine the offender's sentencing range. This sentence determination by the jury would ensure fairness, since the sentencing range would be based on the facts and evidence presented at trial. Therefore, because a lay jury would be deciding whether to hold the offender GEI at the conclusion of the guilt phase of the trial, the offender's Sixth Amendment rights would be guaranteed.

3. Benefits of Adopting the GEI Verdict

Every state should look at and consider adopting the GEI verdict. As previously stated, all other insanity tests currently in use by one or more states are flawed. The GEI verdict is a superior approach to these flawed insanity standards. Thus, one practical benefit of widespread adoption of the GEI verdict is the assurance of greater uniformity in the ultimate result of insanity determinations, which presently does not exist even among jurisdictions that use the same insanity rule. n138 Offenders in need of medical treatment would be appropriately found to be GEI, rather than being sentenced to prison without receiving any treatment or being acquitted by reason of insanity.

An increasingly popular alternative utilized in many criminal justice systems is mental health courts, which typically hear only cases of nonviolent offenders. n139 Because a jury is not present, these courts face potential violations of the Sixth Amendment right to trial by jury unless the offender accepts transfer to a mental health court, thereby waiving his right to a trial by jury. n140 Additionally, since an offender must waive his right to a trial by jury, not all offenders in need of treatment will necessarily affirmatively choose to be tried in a mental health court. Because a jury  [*1496]  determines the offender's guilt in the system proposed by this Note, however, this system would not face the potential constitutional violations of mental health courts. Receipt of proper treatment would not be dependent on the offender's affirmative choice to utilize this sentencing system.

B. Creation of a Mental Health Sentencing Board

In addition to adoption of a GEI verdict, the criminal justice system also needs "back-end" reforms that deal with the treatment and monitoring of mentally ill offenders. n141 Since the criminal justice system's current treatment of mentally ill offenders is anti-therapeutic, n142 a system of therapeutic jurisprudence should be adopted to ensure appropriate treatment. n143

Economically, the long-term savings to society from a system of therapeutic jurisprudence would outweigh the initial costs of increased treatment. This system would help decrease the enormous costs to society that the correctional system currently poses n144 by reducing the recidivism rates of mentally ill offenders. Society's tax dollars would be used more productively for treatment initially, rather than for repeat incarceration of untreated mentally ill offenders. n145 The system would divert funds currently used to ineffectively house mentally ill offenders in the correctional system by ensuring that mentally ill offenders initially receive proper treatment so that they will not continue to remain a financial burden to society.

Therapeutic jurisprudence offers an avenue to transform the way the criminal justice system deals with mentally ill offenders from a system rooted in stereotypical bias  [*1497]  against the mentally ill to a system that preserves due process principles, while also focusing on healing. n146 Implementation of a therapeutic jurisprudence system is most effectively accomplished by creating a mental health sentencing board, which would determine the sentencing and treatment of offenders found by a jury to be GEI.

1. The Composition and Role of the Mental Health Sentencing Board

A mental health sentencing board, a variation of Oregon's Psychiatric Security Review Board, n147 would be used to implement this superior system of therapeutic jurisprudence. The mental health sentencing board would determine both the appropriate sentencing scheme and treatment of each offender that is found GEI, as well as monitor the offender's treatment. Under Oregon's system, the trial judge must affirmatively grant custody of an insanity acquittee to the review board upon a determination that the individual's mental condition still exists. n148 The review board consists of "a psychiatrist, a licensed clinical psychologist, an attorney, a parole and probation representative, and a lay citizen." n149 Once custody of the offender is granted, the board evaluates the individual and monitors the treatment for a period of time that is not to extend beyond the maximum sentence the offender would have faced upon conviction. n150

The proposed mental health sentencing board would have a composition similar to Oregon's Board, consisting minimally of a psychologist, a psychiatrist, and a law enforcement officer. Unlike Oregon's system, the mental health sentencing board proposed by this Note would be part of the judicial system and automatically receive jurisdiction over every offender found GEI by a jury. Once granted custody, the mental health sentencing board would determine the appropriate treatment and sentencing scheme for the offender within the sentence range determined by the jury. The mental health sentencing board would be bound only by the outer limits of the jury's sentence and thus would be free to adopt any appropriate sentence within these limits that is based on facts found by the jury. This provides the mental health sentencing board the ability to determine an appropriate sentence based on their mental health knowledge and law enforcement experience.

Similar to the monitoring essential in Oregon's system, the mental health sentencing board would be given continual monitoring authority over each GEI offender. Once eligible for parole (according to the jury's sentence), an offender could be released conditionally or outright, based upon a finding of successful treatment by mental health and law enforcement personnel. Upon conditional release, the mental health sentencing  [*1498]  board would have supervisory authority over the monitoring and any required outpatient treatment of the offender. In Oregon, a similar conditional release program has yielded positive results, with low recidivism rates among conditionally released offenders: "only six of 126 conditionally released patients (4.8%) were charged with new crimes. . . . In all six cases, the charges were dismissed. . . ." n151

2. Validity of a Mental Health Sentencing Board System

The Sixth Amendment right to a trial by jury ensures that every accused person be given the right "to have the jury pass upon every substantive fact going to the question of guilt or innocence." n152 The United States Supreme Court has recently addressed this right, specifically in the context of findings that affect sentencing, beginning with Apprendi v. United States in 2000. n153 When applied to the insanity context, this line of case law establishes the validity of the proposed mental health sentencing board.

The Apprendi Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." n154 The Court distinguished between facts affecting punishment that are presented during the guilt phase of the trial to the jury with facts that come to light only after the jury verdict. n155 Facts cannot be presented after the jury verdict which would "alter[] the maximum penalty for the crime committed [or] create[] a separate offense calling for a separate penalty," n156 since these are considered elements of the crime that must be proven beyond a reasonable doubt.

Two years later in Harris v. United States, n157 the Court distinguished its holding in Apprendi by finding that the statutory provision at issue in Harris n158 did not violate the defendant's constitutional rights since it only allowed the judge to increase the defendant's minimum sentence. n159 The Court reasoned that the type of judicial fact-finding authorized by the statute at issue in this case,"[j]udicial factfinding in the course of selecting a sentence within the authorized range," n160 "is by definition not 'essential' to the defendant's punishment" n161 and therefore does not need to be proven beyond a reasonable doubt to the jury. In the same year, the Court held in Ring v. Arizona that determination by a trial judge of aggravating factors for imposition of the  [*1499]  death penalty for a defendant convicted of first-degree murder was unconstitutional because the aggravating factors increased the defendant's sentence. n162

In holding that the trial court's imposition of an exceptional sentence exceeding the maximum jury sentence was unconstitutional, the Court in Blakely v. Washington n163 provided further definition of Apprendi's "statutory maximum." The Court clarified that the statutory maximum is the maximum sentence that can be imposed "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." n164

Most recently, the Court held in United States v. Booker n165 that trial judges are prohibited from holding a post-trial sentencing proceeding which results in a sentence exceeding the maximum amount allowable based only on the findings presented to the jury. n166 The Court stated that the rationales of Apprendi and Blakely applied in this case to the Federal Sentencing Guidelines, thus requiring juries, rather than judges, to make findings affecting sentencing maximums. n167

The Court's main focus in this line of case law was on the effect of the finding: "[D]oes the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict," n168 thereby violating the defendant's Sixth Amendment rights? n169 The Court was concerned that sentencing power would be taken away from the jury and sentences would be based on facts that were not presented during the guilt-phase of the trial. This would create a separate punishment phase of the trial in violation of the Sixth Amendment.

Based on the Court's articulated concerns and rationale, the proposed mental health sentencing board would be constitutional. A lay jury guaranteeing the offender's Sixth Amendment rights would hear all the facts and evidence relating to the offender's insanity plea during the trial. After hearing this evidence, the jury would decide whether to issue a GEI verdict and an accompanying mandatory minimum and maximum sentence. The mental health sentencing board would be bound by this authorized sentencing range as well as the facts proven to the jury beyond a reasonable doubt when determining the offender's sentencing scheme and treatment. The mental health sentencing board would not have the authority to deviate from the outer boundaries of the jury's prescribed sentence, so this system would be free from the problems held to be unconstitutional by the Court in the Apprendi line of cases.

Although there is no way to empirically test the effectiveness of this proposed system, Oregon's similar system for insanity acquittees has already received high amounts of praise. n170 These remarks have been particularly directed at the system's ability to maintain a balance between addressing justified public concerns regarding  [*1500]  dangerous mentally ill offenders n171 and ensuring mentally ill offenders' constitutional rights. n172

Unlike mental health courts, which typically hear only cases of non-violent offenders, n173 the proposed mental health sentencing board system would be able to handle all mentally ill offenders, regardless of the degree of the crime for which they stand accused. This would ensure that the system of therapeutic jurisprudence is implemented with respect to all mentally ill offenders.

Creation of a mental health sentencing board would also ensure that more expert and effective treatment decisions are made. Courts have generally questioned the ability of lay jurors to comprehend and synthesize complicated mental health information, particularly in criminal cases. n174 Even if jurors are able to comprehend the mental health information, jurors often ignore this information and base their decision on other, less relevant factors. n175 There is also the possibility that jurors will be unable to render an unbiased verdict after hearing evidence of mental illness, n176 believing that it is their duty to protect society from this mental illness. n177


A long-standing fundamental principle of the American criminal justice system is that one is "innocent until proven guilty." Although not completely violating this principle, the criminal justice system's current treatment of the mentally ill offends this principle. The criminal justice system lacks a uniform insanity standard that correctly identifies offenders who are mentally ill. This improper designation of offenders effectively labels mentally ill offenders as guilty and places these offenders in regular corrective institutions with little or no mental health treatment. The problem is that  [*1501]  these offenders were never proven guilty of the underlying crime. Although they may have committed the underlying crime, their mental illness precludes them from having the requisite mens rea/guilty mind to commit the crime; yet, they face the same punishment as sane offenders proven to have the requisite mens rea.

This Note has attempted to assess and respond to current problems within the criminal justice system by offering a solution that has been made possible by recent United States Supreme Court case law. In order to correct the existing deficiencies in the insanity defense system, the criminal justice system needs to readopt a rehabilitative focus on treatment. n178 Adoption of the superior GEI verdict would increase uniformity of insanity determinations while more accurately assessing the offender's sanity, thereby allowing the opportunity for mental health treatment when appropriate. Creation of a mental health sentencing board would ensure that mentally ill offenders receive adequate treatment before being released back into society. Dangerous mentally ill offenders would be appropriately confined to proper treatment facilities while receiving treatment. Mentally ill offenders would be less of a financial burden to society since they would be able to return to society as productive members following treatment. The fundamental notions of the criminal justice system would also be upheld by this recommended system. Mentally ill offenders would no longer be sentenced as if they had the mens rea required for committing the crime. Instead, mentally ill offenders would receive a constitutionally valid sentence that is proportional to their degree of culpability, thus accurately reflecting the criminal justice system's notion of criminal culpability.

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