The Insanity Plea Problem


To some, the expression “not guilty by reason of insanity” evokes ideas of a Get Out of Jail Free card. Many Americans perceive the insanity defense as a way to commit crimes and evade any punishment. However, a finding of not guilty by reason of insanity can yield a punishment even greater than a guilty verdict. Researchers have described those found not guilty by reason of insanity as “cursed twice as mad and bad,” as they must grapple with both the stigma of mental illness and the societal vitriol directed towards criminals. The pitfalls of the not guilty by reason of insanity verdict, though severe, are not given sufficient scrutiny.

With the exception of strict liability crimes, for a finding of guilt, the American criminal system requires both an unlawful act, actus reus, and unlawful intent, mens rea. The insanity defense is rooted in the belief that those operating at a diminished mental capacity due to a mental disease or defect are not capable of having the requisite mens rea to be guilty of a crime. Without the required mens rea, punishment would be futile as there exists no malicious intent to be deterred. Where the defendant has a severe mental illness or disability such that the defendant’s cognition or volitional capacities are impaired, hospitalization and treatment are thought to be better alternatives to imprisonment.

But once defendants are found not guilty by reason of insanity, they may not simply go home or obtain treatment on their own accord. Rather, those found not guilty by reason of insanity are usually involuntarily, indefinitely committed to a state psychiatric facility. More than 10,000 Americans who have been found not guilty by reason of insanity are held involuntarily in psychiatric hospitals. They have not been found to be responsible for any crime, yet they are not permitted to leave their confinement. Acquitted defendants deemed not legally responsible due to mental disease or defect are not getting off “Scot-Free.” In fact, defendants found not guilty by reason of insanity have been found to be held in confinement as long or significantly longer than those convicted of the same crime.

Under federal law, upon a finding of not guilty by reason of insanity, the acquitted defendant is automatically, involuntarily committed to a psychiatric institution. In Foucha v Louisiana, the Supreme Court held that a patient must be both mentally ill and dangerous to be involuntarily hospitalized. However, this holding does not reflect current practices in the United States. Oftentimes, those committed following a finding of not guilty by reason of insanity are mentally healthy and pose no danger to themselves or others. A verdict of not guilty by reason of insanity hinges only upon that defendant’s sanity at the time of the act, not at the time of verdict or implementation of punishment. Thus, the current system can force mentally stable acquittees to enter state psychiatric facilities. Once a defendant has been involuntarily committed following a not guilty by reason of insanity verdict, to leave a state psychiatric facility, the defendant must show that that defendant does not pose a danger to others. The burden of this showing is on the defendant, not the state.

While the injustice of forcing now-mentally-stable defendants who have not been convicted of any crime into confinement is sufficient cause for concern, the trouble does not end there. Once confined in a state psychiatric facility, patients are often subjected to poor living conditions, abuse, and even death. State psychiatric facilities have such limited resources that demand for mental health treatment has flowed into the carceral system, resulting in county jails becoming the biggest providers of psychiatric treatment for the seriously mentally ill. With only 35,000 state psychiatric hospital beds in the nation, overworked state psychiatric facilities are potentially dangerous environments.

Forcing those who have not been convicted of any crime into dangerously underfunded facilities, regardless of their current mental states and potentially indefinitely, should not be the solution. Mentally stable acquittees who do not pose a danger to society should not be forced into psychiatric facilities with no release date. Further, the barriers to societal re-entry are, presently, extreme. Thus, the burden of proof for release should be shifted from the defendant to the state. Measures such as this will begin the necessary progression for more equitable treatment of the mentally ill in the criminal justice system.

Marie is an NYU alumnus and current 2L at Cornell Law School. She has experience working in psychiatric mental health and carceral settings and is interested in the criminal justice system. She loves the Buffalo Bills, her dog Khaleesi, and Chipotle.


Suggested Citation: Marie Nercessian, The Insanity Plea Problem, Cornell J.L. & Pub. Pol’y, The Issue Spotter (Oct. 19, 2022),

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