Appeals, in overruling its “product” test of Durham v.
United Statesin United States v. Brawner, adopted the
ALI-MPC test.Insanity Defense Reform Act
Slightly more than a decade after Brawner,in the
wake of John Hinckley’s failed attempt to assassinate
U.S. President Ronald Reagan, Congress enacted the
federal Insanity Defense Reform Act. This law had the
effect of returning the insanity defense in federal
jurisdictions to status quo ante 1843: the year of
M’Naghten. The bill changed the federal law in sev-
eral material ways:- It shifted the burden of proof to defendants, by a
quantum of clear and convincing evidence. - It articulated, for the first time, a substantive insanity
test, adopting a more restrictive version of M’Naghten,
thus discarding the ALI-MPC test previously in place
in all federal circuits. - It established strict procedures for the hospitalization
and release of defendants found not guilty by reason
of insanity. - It severely limited the scope of expert testimony in
insanity cases.
Diminished Capacity
One of the most difficult concepts in substantive insan-
ity defense formulation is that of diminished capacity, a
doctrine that holds that evidence of reduced mental
capacity tending to show the absence of any mental
state essential to the alleged crime should be accepted
by the trial court, whether or not an insanity plea was
entered (People v. Wells, 1949, pp. 63–70). There seems
little question that the diminished capacity doctrine was
developed to be used in murder cases to mitigate the
harshness of a potential death penalty by raising the
question of whether the defendant could sufficiently
appreciate the nature of his or her act so as to sustain a
first-degree murder conviction. In addition, use of the
doctrine has been justified as a means to ameliorate
defects in a jurisdiction’s substantive insanity defense
test criteria and as a means of permitting juries to make
more accurate individualized culpability judgments.
This doctrine, however, has been routinely criti-
cized for its difficulty and arbitrariness in application,leading to uneven and inequitable outcomes, and
while it had been endorsed in some form in nearly 25
jurisdictions, it has failed to capture major support and
has even lost the support it previously enjoyed.“Guilty but Mentally Ill”
Perhaps the most significant development in substan-
tive insanity defense formulations in the past 20 years
has been the adoption in more than a dozen jurisdic-
tions of the hybrid “guilty but mentally ill” (GBMI)
verdict. It received its initial impetus in Michigan, as
a reflection of legislative dissatisfaction with and pub-
lic outcry over a state Supreme Court decision that
had prohibited automatic commitment of insanity
acquittees. There, legislation was enacted that pro-
vided for a GBMI verdict—as an alternative to the not
guilty by reason of insanity (NGRI) verdict—if
the following were found by the trier of fact beyond a
reasonable doubt:- That the defendant is guilty of an offense
- That the defendant was mentally ill at the time of the
commission of the offense - That the defendant was not legally insane at the time
of the commission of the offense
The rationale for the passage of the GBMI legislation
was that the implementation of such a verdict would
decrease the number of persons acquitted by reason of
insanity and ensure treatment of those who were GBMI
within a correctional setting. It was conceived that once
a defendant were to be found GBMI, he or she would be
evaluated on entry to the correctional system and pro-
vided appropriate mental health services either on an
inpatient basis as part of a definite prison term or, in spe-
cific cases, as a parolee or as an element of probation.
This model was followed—in large part—in most of the
other states that have adopted the GBMI test.
Most academic analyses have been far more criti-
cal, rejecting it as conceptually flawed and procedu-
rally problematic and as not only superfluous but also
dangerous. By way of example, in practice, the GBMI
defendant is not ensured treatment beyond that avail-
able to other offenders. Thus, Christopher Slobogin
(one of the leading current scholars in this area of the
law) suggests, it is “not only misleading but danger-
ous to characterize the [GBMI] verdict either as a
humane advance in the treatment of mentally illCriminal Responsibility, Defenses and Standards——— 165C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 165