What happens to the individual after they are found not guilty by reason of insanity?

: COMPETENCY TO STAND TRIAL

• What's the difference between competency to stand trial and the insanity defense?

Competency to stand trial hinges on a defendant's current mental state at the time of trial. It is generally a low-level standard that requires merely that a defendant understands the proceedings against him -- that he is being tried for a crime, and the relative roles of prosecutor, defense attorney, and judge -- and be able to assist his attorney in his defense. The low standard reflects the attempt to provide as many people as possible a day in court, while excluding those individuals who are so sick as to be completely unable to comprehend the proceedings or to assist their attorneys. There is a common misperception that if an individual is found incompetent, it is the same as being found not guilty. In reality, if the defendant is deemed incompetent, there is no trial, and no conviction or acquittal.

The insanity defense has nothing to do with a defendant's current mental status; to be found not guilty by reason of insanity, a judge or jury must evaluate the defendant's state of mind at the time of the offense.

• What happens when a defendant is found incompetent to stand trial?

A finding of incompetence merely signals a hiatus in the criminal proceedings. In the majority of cases, a mentally ill defendant deemed incompetent receives treatment until he is deemed "restored to competence," and returns to court.

Until 1972, defendants found incompetent to stand trial often ended up being institutionalized automatically and indefinitely. In that year, the U.S. Supreme Court ruled that such institutionalization was unconstitutional, and that defendants deemed incompetent may not be held for a longer period than is reasonable to determine whether they will be able to attain competence in the foreseeable future. If the determination is made that he will not, commitment proceedings must be initiated or the defendant must be released.

: THE INSANITY DEFENSE

• What are the legal standards for insanity?

Each state, and the District of Columbia, has its own statute setting out the standard for determining whether a defendant was legally insane, and therefore not responsible, at the time his crime was committed. In general, the standards fall into two categories.

About half of the states follow the "M'Naughten" rule, based on the 1843 British case of Daniel M'Naughten, a deranged woodcutter who attempted to assassinate the prime minister. He was acquitted, and the resulting standard is still used in 26 states in the U.S.: A defendant may be found not guilty by reason of insanity if "at the time of committing the act, he was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong." (emphasis added) This test is also commonly referred to as the "right/wrong" test.

Twenty-two jurisdictions use some variation of the Model Standard set out by the American Law Institute (A.L.I.) in 1962. Under the A.L.I. rule, a defendant is not held criminally responsible "if at the time of his conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law." (emphasis added) The A.L.I. rule is generally considered to be less restrictive than the M'Naughten rule.

Some states that use the M'Naughten rule have modified it to include a provision for a defendant suffering under "an irresistible impulse" which prevents him from being able to stop himself from committing an act that he knows is wrong.

Three states -- Montana, Idaho, and Utah -- do not allow the insanity defense at all.

: See this chart showing the standards used by each jurisdiction.

• How often is the insanity defense invoked? In what kinds of cases? And how often does it succeed?

Although cases invoking the insanity defense often receive much media attention, the defense is actually not raised very often. Virtually all studies conclude that the insanity defense is raised in less than 1 percent of felony cases, and is successful in only a fraction of those1. The vast majority of those that are successful are the result of a plea agreement in which the prosecution and the defense agree to a not guilty by reason of insanity (NGRI) plea.

A major 1991 eight-state study commissioned by the National Institute of Mental Health found that less than 1 percent of county court cases involved the insanity defense, and that of those, only around one in four was successful. Ninety percent of the insanity defendants had been diagnosed with a mental illness. About half of the cases had been indicted for violent crimes; fifteen percent were murder cases.2

• What happens in states where there is no insanity defense?

Three states -- Montana, Idaho, and Utah -- do not allow the insanity defense. Defendants must still be found competent to stand trial, and they may introduce evidence of a mental disease or defect as evidence that they did not possess the requisite intent or state of mind (mens rea) to be found guilty.

• What is "guilty but mentally ill (GBMI)"?

Faced with the difficulty of cases such as Ralph Tortorici's, where a defendant has clearly committed the crimes in question but is obviously mentally ill, many states have adopted laws providing for a "guilty but mentally ill" plea or verdict. This does not eliminate the insanity defense; it is merely an alternative for defendants who are found to be mentally ill, but whose illness is not severe enough to relieve him of criminal responsibility.

A defendant who receives a GBMI verdict is sentenced in the same way as if he were found guilty. The court then determines whether and to what extent he requires treatment for mental illness. When, and if, the defendant is deemed "cured" of his mental illness, he is required to serve out the rest of his sentence, unlike an insanity-defense acquittee who would be released from psychiatric commitment once he is deemed to be no longer dangerous.

Proponents of the GBMI plea, including Cheryl Coleman, argue that it provides for necessary treatment of mentally ill defendants, while still ensuring that those defendants are punished for their crimes. They say that the GBMI verdict protects the public because mentally ill defendants won't be released if they are deemed no longer dangerous, as would a defendant who was acquitted by reason of insanity. On the other hand, they say, mentally ill defendants are guaranteed to receive the treatment they need, and suicides like Ralph Tortorici's would happen less often.

Critics, including the American Psychiatric Association, claim that the GBMI verdict takes away the hard choices that juries and judges are supposed to make: "While the 'guilty but mentally ill' category may seem to make juries' jobs easier, it compromises one of our criminal system's most important functions -- deciding, through its deliberations, how society defines responsibility. A 'guilty but mentally ill' plea absolves the judge or jury of this obligation."3

Another, practical criticism of the GBMI plea is that given the level of mental health resources in the countries' jails and prisons, it is unlikely that a defendant who receives a GBMI verdict will actually receive meaningful treatment while incarcerated. Mental health resources in prison are scarce, and because most statutes grant substantial discretion to the facility directors to provide a level of treatment that they determine is necessary, there is no guarantee that an inmate will receive adequate treatment.

In 2000, at least 20 states had enacted "guilty but mentally ill" provisions.

: For more on the debate over the GBMI plea, see this point-counterpoint article from Physicians Weekly.

• What is a bifurcated trial?

A few states allow for "bifurcated" trials for defendants invoking an insanity plea. The first phase deals with the crime itself and determines whether the defendant is guilty, without reference to insanity. If the defendant is found guilty, then he may raise an insanity defense in the second phase of the trial, which determines his sentence.

: COMMITMENT, CONFINEMENT, AND RELEASE

• What happens to a mentally ill defendant who is acquitted of a violent crime?

According to the American Psychiatric Association, studies show that defendants acquitted by reason of insanity are likely to spend as much or more time confined in a psychiatric institution as they would have if convicted and sentenced to jail or prison for the same crime. One study determined insanity defense acquittees frequently spend twice as much time institutionalized as defendants convicted of a similar offense spend in correctional facilities4. Additionally, once released, they may be subject to long-term judicial oversight, unlike a convict who received a conventional guilty verdict.

Commitment procedures vary widely from state to state. Some states require automatic commitment of an acquitted defendant to a mental institution, others require a commitment hearing. Some states use the same standards as apply to civil commitment procedures, while others have special procedures for criminal defendants.

The release procedures also vary. The determination to release a committed defendant can rest with a judge, with mental health professionals, or a specially appointed board. Some states provide for conditional releases, such as allowing the inmate to have supervised family visits off-site.

1 Perlin, Michael. The Jurisprudence of the Insanity Defense (Carolina Academic Press, 1994), p. 108.

2 Bulletin of the American Academy of Psychiatry, Vol. 19, No. 4, 1991.

3 http://www.psych.org/public_info/insanity.cfm

4 Perlin, Michael, The Jurisprudence of the Insanity Defense (Carolina Academic Press, 1994), citing Rodriguez, LeWinn, and Perlin, The Insanity Defense Under Siege: Legislative Assaults and Legal Rejoinders, 14 Rutgers Law Journal 397, 402 (1983).

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