offenders or as a more effective way of identifying
offenders in need of treatment.” The GBMI verdict, he
concludes, is “a verdict in name only” (p. 515).Insanity Defense Myths
The empirical research has revealed that at least half a
dozen myths about the insanity defense had arisen and
have been regularly perpetuated but were all disproven
by the facts. The research showed that the insanity
defense opens only a small window of nonculpability,
that defendants found that NGRI does not “beat the rap,”
and, perhaps most important, that the tenacity of these
misbeliefs in the face of contrary data is profound.Myth 1: The insanity defense is overused.All empirical
analyses have been consistent: the public, legal profes-
sion, and, specifically, legislators dramatically and
grossly overestimate both the frequency and the suc-
cess rate of the insanity plea. This error undoubtedly is
abetted by media distortions in presenting information
on persons with mental illness charged with crimes.Myth 2: The use of the insanity defense is limited to
murder cases. In one jurisdiction where the data have
been closely studied, slightly less than one third of the
successful insanity pleas entered over an 8-year
period were reached in cases involving a victim’s
death. Furthermore, individuals who plead insanity in
murder cases are no more successful in being found
NGRI than persons charged with other crimes.Myth 3: There is no risk to the defendant who pleads
insanity.Defendants who asserted an insanity defense
at trial and who were ultimately found guilty of their
charges served significantly longer sentences than
defendants tried on similar charges but did not assert
the insanity defense. The same ratio is found when
exclusively homicide cases are considered.Myth 4: NGRI acquittees are quickly released from
custody.Of all the individuals found NGRI over an
8-year period in one jurisdiction, only 15% had been
released from all restraints, 35% remained in institu-
tional custody, and 47% were under partial court
restraint following conditional release.Myth 5: NGRI acquittees spend much less time in cus-
tody than do defendants convicted of the same offenses.
Contrary to this myth, NGRI acquittees actually spendalmost double the amount of time that defendants
convicted of similar charges spend in prison settings and
often face a lifetime of postrelease judicial oversight.Myth 6: Criminal defendants who plead insanity are
usually faking.This is perhaps the oldest of the insanity
defense myths and is one that has bedeviled American
jurisprudence since the mid-19th century. Of 141 indi-
viduals found NGRI in one jurisdiction over an 8-year
period, there was no dispute that 115 were schizophrenic
(including 38 of the 46 cases involving a victim’s death),
and in only three cases was the diagnostician unable to
specify the nature of the patient’s mental illness.Abolition and Limitation Proposals
In the past two decades, state legislatures in Idaho,
Montana, Kansas, and Utah have abolished the insan-
ity defense, and in those jurisdictions, state supreme
courts have subsequently held that abolition of the
defense did not violate due process. Arizona stopped
barely short of abolishing the insanity defense by cre-
ating a “guilty except insane” verdict that eliminates
the “nature and quality of the act” prong from the
M’Naghten test. In one instance (Nevada), such aboli-
tion was struck down as unconstitutional in Finger v.
State of Nevada (2001), with the majority of the
sharply divided court finding that legal insanity was a
“fundamental principle” entitled to due process pro-
tections. The court reasoned as follows:Mens rea is a fundamental aspect of criminal law.
Thus it follows that the concept of legal insanity, that
a person is not culpable for a criminal act because he
or she cannot form the necessary mens rea, is also a
fundamental principle. (p. 80)The U.S. Supreme Court recently addressed ques-
tions raised in Arizona’s insanity defense:Whether due process prohibits Arizona’s use of an
insanity test stated solely in terms of the capacity to
tell whether an act charged as a crime was right or
wrong; and whether Arizona violates due process in
restricting consideration of defense evidence of men-
tal illness and incapacity to its bearing on a claim of
insanity, thus eliminating its significance directly on
the issue of the mental element of the crime charged
(known in legal shorthand as the mens rea, or guilty
mind). (Clark v. Arizona,2006)166 ———Criminal Responsibility, Defenses and StandardsC-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 166