Encyclopedia of Psychology and Law

Public Sentiment and

the Insanity Defense

Research conducted from the 1960s through the 1980s

reveals that the public views NGRIs as more danger-

ous than ordinary inmates, consistent with other

research on public views of persons with mental ill-

ness as being dangerous. Therefore, little public senti-

ment exists to attend to the rights of NGRIs. Even

when faced with overwhelming expert testimony that

a defendant’s mental illness is so severe that he or she

could not have known right from wrong, juries more

often than not find a defendant guilty, perhaps hoping

that they will receive treatment in prison. When asked

following the trial why they rejected the insanity

defense, jurors often state that although they do not

dispute the evidence of psychosis, they are fearful that

the individual will be released from the hospital.

As public opinion shifted away from reform favor-

ing defendants’ rights, the courts turned away from

defendants as well. What followed from 1983 to the

present could be summarized as a refinement of pro-

cedures and laws regarding the insanity defense,

within a context where standard psychiatric treatment

is constitutionally required for NGRIs. In 1983, the

Supreme Court ruled that an insanity acquittal for any

crime is a presumption of dangerousness for purposes

of commitment. In 1992, the Court held that NGRIs

must be released if they no longer meet commitment

criteria. An exception is made for convicted sex

offenders, who can be involuntarily committed to a

psychiatric hospital following completion of their sen-

tence until their “mental abnormality” is cured. The

implication of the Court’s ruling is that sex offenders

can be treated by mental health professionals, even

though there is lack of evidence for the efficacy of

these treatments.

Treatment and Release

of Insanity Acquittees

One effect of the documented reduction of insanity

defense cases from the 1960s through to the present is

the change in the NGRI population, affecting treat-

ment needs in both the hospital and the community.

While some defendants might have been able to

“fake” psychosis in the early decades, this grew less

likely as the fields of forensic psychiatry and psychol-

ogy developed and specialized training became

required. Both civil patients and NGRIs have always

been prescribed treatments that are thought to be med-

ically appropriate and necessary. Earlier interventions

including psychosurgery and electroconvulsive treat-

ment were invasive and performed by physicians

While both interventions are still sparingly used

today, the most common treatment for all mental ill-

ness is medication; like earlier treatments, it is fixed

within the professional domain of licensed medical

doctors. For inpatients and outpatients alike, some

psychosocial treatments have always been available,

although the only common treatment is psychotropic

medication.

In terms of treatment options in public facilities,

there is little difference among patients due to their

commitment status. Nearly all jurisdictions maintain

maximum-security hospitals, and most NGRIs begin

their commitment in these types of facilities but are

eventually transferred to less secure, less costly

facilities. In some states, these transfers require multi-

ple approvals, but the degree of real oversight is

unknown. Most often, security changes are made with

internal review boards. Outright release or conditional

release of NGRIs is supervised to a greater extent than

transfers, and the release process varies in complexity

and criteria. Some states require extensive, multitiered

reviews, while others allow the committing judge to

grant the release. A few states have convened special-

ized boards to oversee all NGRI release decisions and

supervision. If placed on conditional release, NGRIs

are required to adhere to the prescribed treatment and

can face revocation if they violate the terms of their

release. Failure to adhere to treatment, along with psy-

chiatric deterioration, is the most common reason for

revocation, not re-offending.

Contemporary Issues

and Developments

Today, defense attorneys and defendants alike will not

necessarily opt for an insanity defense for a relatively

minor offense, even if the defendant meets the criteria

for an acquittal. So, while the court decisions of the

1960s resulted in the release of many long-term patients,

this trend away from commitment was short-lived. The

insanity defense fell into disfavor among defense attor-

neys, in large part due to closer scrutiny of defendants

and stricter release procedures leading to a long period

of hospitalization, and among the public, due to per-

ceived fears of this population. There was a parallel

influx of nonviolent persons with mental illness into the

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