Treatment
Treatment for NGRIs is delivered primarily by the
public mental system. The first public mental hospi-
tals in the United States were built after the 1830s, and
there was no distinction between patients committed
by family and those brought in by law enforcement.
Insanity was used interchangeably to refer to all
patients who were believed to be unable to make deci-
sions due to mental illness. As suspicions rose about
the use of civil commitment for inappropriate
motives, such as acquiring family wealth or obtaining
a divorce, the laws were changed in the late 1800s to
require hearings prior to civil commitment, at which
time the patient could object. These concerns were not
directed at the legally insane patients. The concern
with unfair commitments was short-lived as many
states began allowing unrestricted, streamlined emer-
gency commitments, as is still the case today. It was
not until the judicial activism of the U.S. federal
bench starting in the 1950s that civil commitment
laws began to change, but these early federal deci-
sions did not extend to NGRIs. This population of
patients was committed for life and was not covered
by the new, stringent civil commitment laws.
Treatment continued unscrutinized in hospitals, and
insanity acquittees could expect to spend their lives
confined to the state hospital.Public Policy on the
Rights of the Insane
This period of complete neglect of the legal and treat-
ment interests of the insane extended until 1966, when
the U.S. Supreme Court ruled that convicted and hos-
pitalized defendants were to be held to civil commit-
ment standards. This holding was extended to NGRIs
on the grounds that they had been denied equal pro-
tection due to lack of review of their automatic, indef-
inite commitment to maximum-security hospitals.
The next year, the Court held that sex offenders were
entitled to a hearing before being transferred from
prison to a hospital after serving their sentence. The
following year, the D.C. Court of Appeals held that
insanity defendants were to be given the same proce-
dural protections as other patients. In case after case,
federal courts decided in favor of both NGRIs and
convicted defendants with mental illness, requiring
states to prove why continued commitment was nec-
essary. As these new commitment laws were written,most states had the burden of proving that persons
found NGRIs were mentally ill, dangerous, and in
need of hospitalization. If treatments were not being
provided, the state failed to meet the burden. Hearings
were now required to review the continued hospital-
ization of all patients.
Prosecutors opposed to an insanity defense in a
particular case were put in the awkward position of
first arguing at trial that the individual’s mental disor-
der was not so severe as to require an insanity verdict
and then following this with the argument that the
mental disorder was so severe that the person acquit-
ted should be involuntarily committed. Not surpris-
ingly, many insane patients no longer met the criteria
for commitment and were released. The lack of treat-
ment and supervision they encountered is legend,
and beginning in the late 1960s, states began releas-
ing NGRIs who no longer met the criteria for
commitment—mental illness and dangerousness. At
the same time, the costs of inpatient mental health
care continued to rise due in part to “right to treat-
ment” cases. For myriad reasons, such as the lack of
resources, the belief that treatment would be ineffec-
tive, and fear, there was considerable community
resistance to treating this forensic population.
The relatively unsupervised release of insanity
defendants who had, in many cases, been hospitalized
for decades caused fear and concern among the gen-
eral public. Complicating the issue, a number of states
had notorious cases in which a former NGRI commit-
ted a particularly heinous crime, leading to a reconsid-
eration of the release procedures of insanity
defendants. States began to make the release proce-
dures more stringent, placing more responsibility on
the defendant. The landslide of legislative change
accelerated with the 1983 insanity acquittal of John
Hinckley for his attempted assassination of President
Ronald Reagan (and serious injuries to other victims).
Following this widely publicized case, most states
tightened their insanity defense laws, shifting the bur-
den of proof to the defendant; changing the test for
insanity from the American Law Institute’s guidelines
back to the more restrictive M’Naghten test; adopting
guilty but mentally ill statutes; abolishing the affirma-
tive insanity defense; and creating new, less defen-
dant-friendly release procedures. Whether such legal
reforms created the intended outcomes has been
the subject of extensive research. While Hinckley did
not start the retrenchment movement, his acquittal
completed it.812 ———Treatment and Release of Insanity AcquitteesT-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 812