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Guilty But Mentally Ill: A Retreat from the Insanity Defense

Published online by Cambridge University Press:  24 February 2021

Scott Leigh Sherman
Scott Leigh Sherman*
Affiliation:
Boston College School of Law, The American Journal of Law & Medicine
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Abstract

“Guilty but mentally ill” legislation responds to the increasing outbreak of violent crimes and to public skepticism concerning the ability of psychiatrists to determine the advisability of a criminal's return to society. Under this alternative to the traditional insanity defense, once the defendant chooses to plead not guilty by reason of insanity, the trier of fact may elect to find him guilty, but mentally ill. This may occur when it is determined that the defendant's mental illness is not severe enough to negate culpability. The court must then sentence the defendant to a term in prison instead of committing him to a psychiatric institution.

This Note discusses the origins of the guilty but mentally ill verdict and outlines the development of commitment standards for civil patients and insanity acquittees. While these standards appeared to be merging for a period of time the more recent trend has been to treat civil patients and insanity acquitees differently. This Note maintains that the guilty but mentally ill verdict involves an unnecessarily severe curtailment of the mentally ill offender's constitutional rights.

The Note delineates a proposal critiquing the misconceptions on which the statute is based and the excessive restraints on liberty it causes. The proposal examines the reasons for the public's misgivings with the insanity defense and suggests that the threat to the public's safety may not be as serious as it appears. Furthermore, it indicates that while problems remain with the existing insanity defense, the solution to those problems provided by the guilty but mentally ill statute outweighs the risk that insanity acquittees pose to the public.

Type
Notes and Comments
Information
American Journal of Law & Medicine , Volume 7 , Issue 2 , Summer 1981 , pp. 236 - 264
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1981

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References

1 See, Written Caution Cited in Release of Accused Man, N.Y. Times, Dec. 19, 1979, § B, at 1, col. 5. Diebolt & Mitchell, Killer Freed as Sane, Held in Wife's Slaying, Detroit Free Press, Apr. 15, 1975, § A, at 1, cols. 3-4.

2 See Cocozza, & Steadman, , The Failure of Psychiatric Predictions of Dangerousness: Clear arid Convincing Evidence, 29 Rutgers L. Rev. 1084, 1098 1976)Google Scholar (psychiatrists lack the expertise and ability to accurately make predictions of dangerousness); Ennis, & Litwack, , Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal. L. Rev. 693 (1974)CrossRefGoogle Scholar (psychiatric judgments are generally unreliable and invalid because of the inadequacies of the diagnostic system and the ambiguity of psychiatric data).

3 Reference to the Guilty But Mentally Ill statute mentioned throughout this article concerns two virtually identical laws. These are a Michigan statute which is actually a series of amendments to the insanity laws: Mich. Comp. Laws Ann. § 768.36 (West Supp. 1981) and a New York State proposed statute which was introduced in 1979 as an amendment to N.Y. Crim. Proc. Law § 330.10 (McKinney 1971). The relevant parts of the Michigan statute read as follows:

  1. (1) If the defendant asserts a defense of insanity in compliance with section 20a, the defendant may be found “guilty but mentally ill” if, after trial, the trier of fact finds all the following beyond a reasonable doubt:

  • (a) That the defendant is guilty of an offense.

  • (b) That the defendant was mentally ill at the time of the commission of that offense. (c) That the defendant was not legally insane at the time of the commission of that offense… .

  • (3) If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense. If the defendant is committed to the custody of the department of corrections, he shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation. Treatment may be provided by the department of corrections or by the department of mental health after his transfer pursuant to sections 1000 or 1002 of Act. No. 258 or the Public Acts of 1974 … [these sections] shall apply to the discharge of such a defendant from a facility of the department of mental health to which he has been admitted and shall apply to the return of such a defendanl to the department of corrections for the balance of the defendant's sentence. When a treating facility designated by either the department of corrections or the department of mental health discharges such a defendant prior to the expiration of his sentence, that treating facility shall transmit to the parole board a report on the condition of the defendant which contains the clinical facts, the diagnosis, the course of treatment, and the prognosis for the remission of symptoms, the potential for recidivism and for the danger to himself or the public, and recommendations, for future treatment. In the event that the parole board pursuant to law or administrative rules should consider him for parole, the board shall consult with the treating facility at which the defendant is being treated or from which he has been discharged and a comparable report on the condition of the defendant shall be filed with the board. If he is placed on parole by the parole board, his treatment shall, upon recommendation of the treating facility, be made a condition of parole, and failure to continue treatment except by agreement with the designated facility and parole board shall be a basis for the institution of parole violation hearings.

    Mich. Comp. Laws Ann. §§ 768.36(1), (3) (West Supp. 1981).

    State Senator Frank Padavan introduced a bill into the 1979-80 session of the New York State Senate to amend the current criminal procedure law. N.Y. Crim. Proc. Law § 330.10 (McKinney 1971) as amended by Guilty But Mentally Ill legis. 1979-80, Sen. Bill No. 4013 § 3E. The pertinent provision of New York's proposed Guilty But Mentally Ill law states:

    If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same crime. If the defendant is committed to the custody of the department of correctional services, he shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation. Treatment may be provided by the department of correctional services or by the department of mental hygiene in accordance with the appropriate provisions of the correction law and the mental hygiene law. Upon the successful completion of a course of treatment pursuant to the directions of the department of correctional services or the department of mental hygiene, such a defendant shall remain in the custody of the department of correctional services for the balance of the defendant's sentence.

    For the purpose of uniformity all references to this legislation will hereinafter be made to Michigan's Guilty But Mentally 111 Statute, Mich. Comp. Laws Ann. § 768.36 (West Supp. 1981).

4 See notes 14-17 infra and accompanying text.

5 Mens rea is denned as a “guilty mind or the capability of possessing criminal intent.” Model Penal Code § 4.01, Comment (Tent. Draft No. 4, 1955). See United States v. Greenbaum, 138 F.2d 437, 438 (1943), where the court describes mens rea as guilty knowledge and willfulness.

6 For a general discussion of mens rea and criminal culpability see A. Goldstein, The Insanity Defense 202-04 (1967).

7 Mich. Comp. Laws Ann. § 768.36(l)(c) (West Supp. 1981).

8 Acquittal by reason of insanity requires the jury to find the defendant legally insane. The definition of legal insanity formulated by the American Law Institute (hereinafter ALI) in Model Penal Code § 4.01 (Proposed Official Draft, 1962) states “[A] person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” The ALI definition of insanity has been adopted by virtually all federal courts of appeals and many state courts, including those in New York and Michigan. Wade v. United States, 426 F.2d 64, 71 (9th Cir. 1970); United States v. Chandler 393 F.2d 920, 927 (4th Cir. 1968).

9 Mich. Comp. Laws Ann. § 768.36(1) (West Supp. 1981).

10 Mich. Comp. Laws Ann. § 768.36(3) (West Supp. 1981).

11 See note 8 supra.

12 L., Sleffel, The Law And The Dangerous Criminal 121 (1977).Google Scholar

13 Id.

14 If the court finds that a defendant found not guilty by reason of insanity is committable under the state's civil commitment statute he may be committed like any other civil patient. See, e.g., Ariz. R. Crim. P. 25 where a defendant may be committed if he is “dangerous to himself or to the person or property of others if left at large.” Ariz. Rev. Stat. Ann. § 36-514(c) (Supp. 1972) which is the standard for civil commitment. See also Ill, Ann. Stat. ch. 38, § 1005-2-4(a) (Smith-Hurd Supp. 1980); Mass. Gen. Laws Ann. ch. 123, § 16 (West Supp. 1980).

15 In these states the court orders automatic commitment of insanity acquittees following acquittal so that the court may have an opportunity to arrange for the acquittees’ psychiatric evaluation. If the court is then satisfied that the acquittee may be released, a court hearing is held which generally shall be deemed a civil proceeding. See, e.g., D.C. Code Ann. § 24-301(d)(l) (1973); N.Y. Crim. Proc. Law § 330.20(2) (Consol. 1979); Wis. Stat. Ann. § 971.17(1) (West 1971).

16 The trial court in these states requires that the person found not guilty by reason of insanity be temporarily confined in a psychiatric institution for care and treatment. However, commitment in these states is discretionary because a court may order the acquittee's immediate release without further hearings if it finds that the acquittee no longer poses a danger to himself or others. See, e.g., Ark. Stat. Ann. § 4-612(3) (1977); Conn. Gen. Stat. Ann. § 53a-47(a)(4) (1972); Haw. Rev. Stat. § 704-411(4) (1976).

17 If the court orders final commitment of the insanity acquittee, commitment is mandatory and not subject to immediate review because the trial judge has determined either that the acquittee's insanity continues, see, e.g., Ala. Code § 15-16-40 (1975); Cal. Penal Code § 1026(a) (West Supp. 1980); or that the acquittee would be dangerous to himself or the community if released, see, e.g., N.J. Stat. Ann. § 2C4-8 (West 1980); R.I. Gen. Laws § 40.1-5.3-4 (Supp. 1979).

18 In re Franklin, 7 Cal. 3d 126, 496 P.2d 465, 101 Cal. Rptr. 553 (1972).

19 See notes 14-17 supra and accompanying text.

20 L., Sleffel, The Law and The Dangerous Criminal 125 (1977).Google Scholar

21 E.g., Nev. Rev. Stat. § 175.521 (1971) (Atty. Gen. Opinion, Aug. 5, 1955, found authority solely in hospital superintendents); Kan. Stat. Ann. § 22-3428(2) (Supp. 1979); see generally Note, Release from Confinement of Persons Acquitted by Reason of Insanity in New Jersey, 27 Rutgers L. Rev. 160, 166 (1973-74).

22 Conn. Gen. Stat. Ann. § 53a-47(a)(3) (1972).

23 L., Sleffel, The Law and The Dangerous Criminal 124 (1977).Google Scholar

24 N.Y. Crim. Proc. Law § 330.20 (McKinney 1971); N.J. Stat. Ann. § 2A; 163-3 (West 1971); See generally, Note, Procedure for the Commitment and Release of the Criminally Insane, 4 Willamette L. J. 64 (1966). \

25 Ragsdale v. Overholser, 281 F.2d 943 (D.C. Cir. 1960). See D.C. Code Ann. § 24-301 (1951) (person acquitted of a crime by reason of insanity which carried a maximum sentence of eighteen months could be institutionalized for ten years or longer).

26 See People ex rel Peabody v. Chanler, 133 A.D. 159, 162, aff'd, 196 N.Y. 525 (1909) (commitment of a person found not guilty by reason of insanity will last for as long as that person remains insane; because it is possible that the individual's mental illness is chronic, commitment may be indefinite).

27 People ex rel Peabody v. Chanler, 133 A.D. 159, 162, aff'd, 196 N.Y. 525 (1909).

28 Ragsdale v. Overholser, 281 F.2d 943, 947-49 (D.C. Cir. 1960); Overholser v. Leach, 257 F.2d 667, 669-70 (D.C. Cir. 1958), cert, denied, 359 U.S. 1013 (1959).

29 People ex rel Peabody v. Chanler, 133 A.D. 159, 162, aff'd, 196 N.Y. 525 (1909); People ex rel Peabody v. Baker, 59 Misc. 359, 110 N.Y.S. 848 (1908) (the safety and welfare of the community is of greater importance than the freedom of the individual).

30 state ex rel Thompson v. Snell, 46 Wash. 327, 89 P. 931 (1907) (refusal of court order for mental examination based on presumption that defendant's insanity existing at the time the crime was committed continues into the present).

31 State ex rel Sundberg Dist. Court, 185 Minn. 396, 241 N.W. 39 (1932). See also Comment, Compulsory Commitment Following a Successful Insanity Defense, 56 N.W.L. Rev. 409 (1961-62) (summary of different commitment procedures following insanity acquittals).

32 B., Guttmacher & H., Weihofen, Psvchiatry and the Law 423 (1952)Google Scholar; Barry v. Hall, 98 F.2d 222, 229 (D.C. Cir. 1938) (“The writ of habeus corpus is a writ the function of which is to accomplish the release of one whose confinement is either .without original legal foundation or without continued factual foundation.“).

33 C. Mccormick, Handbook of the Law of Evidence 798-8*02 (2d ed. 1972).

34 People v. Lally, 19 N.Y.2d 27, 224 N.E.2d 87, 277 N.Y.S.2d 654 (1966).

35 See generally Note, Commitment Following Acquittal by Reason of Insanity and the Equal Protection of the Laws, 116 U. Pa. L. Rev. 924 (1968).

36 See American Bar Foundation, The Mentally Disabled and the Law 36-41 (rev. ed. S. Brakel & R. Rock 1971) (in many states, the basis of involuntary civil commitment is a psychiatrist's testimony that a person is mentally ill, dangerous to himself or others, or in need of care and treatment).

37 See Note, Developments in the Law—Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1207-22 (1974) (the parens patriae concept is rooted in the states’ duty to act in a paternalistic role as a substitute decision-maker to protect the best interests of the incapacitated).

38 This Note defines involuntary civil commitment as a mandatory court-ordered hospitalization which is not part of a criminal proceeding. See generally A. Brooks, Law, Psychiatry, and the Mental Health System (1974).

39 The Court in Robinson v. California, 370 U.S. 660 (1962), ruled that a person guilty of a status offense like narcotics addiction or mental illness should not be subject to criminal penalties. “It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease.” Id. at 666.

40 Addington v. Texas, 441 U.S. 418 (1979).

41 In Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded on procedural grounds, 414 U.S. 473 (1974), the court invalidated a Wisconsin civil commitment statute in part because the law did not mandate a full hearing on the necessity for commitment within two weeks after an individual is first institutionalized. The court recognized the fact that while commitment may be warranted at the time a person is confined, changing circumstances are likely to make frequent reevaluations prudent. Id. at 1091. See also Dixon v. Attorney Gen., 325 F. Supp. 966, 974 (M.D. Pa. 1971) (a statute provides that an individual cannot be involuntarily committed based only on a physician's certificate and a superintendent's certificate of acceptance without a formal hearing).

42 In O'Connor v. Donaldson, 422 U.S. 563, 575 (1975), the Court stated that if a person is found mentally ill that alone does not provide a “constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.” See also The Mentally Disabled and the Law 137 (rev. ed. S. Brakel & R. Rock 1971). The authors summarize the criteria of different states governing discharge procedures of involuntarily committed civil patients: (1) forty-three states and the District of Columbia predicate release on improvement; (2) fifteen states will permit release even if no improvement is demonstrated; (3) five states condition improvement on willingness of family members and friends to care for the discharged patient; (4) four states allow release only if the mentally ill individual is fully recovered. These four categories are not mutually exclusive.

43 See note 37 supra, at 1378, which states that in more than three-fifths of the states, procedures exist for automatic periodic review of the patient's present mental condition. See, e.g., D.C. Code Ann. §§ 21-546-21-548 (1973).

44 See note 37 supra, at 1207-22.

45 In 1952, the National Institute of Mental Health formulated a standard for mandatory treatment procedures for involuntarily committed civil patients. Many states have patterned their mental health laws on this standard which states: “every patient shall be entitled to humane care and treatment and to the extent that facilities, equipment and personnel are available, to medical care and treatment in accordance with the highest standards accepted in medical practice.” National Institute of Mental Health, Federal Security Agency, A Draft Act Governing Hospitalization of the Mentally Ill 319 (Public Health Service Pub. No. 51, 1951), reprinted in The Mentally Disabled and The Law 454-73 (rev. ed. S. Brakel & R. Rock 1971).

46 344 F. Supp. 373 (M.D. Ala. 1972).

47 id. at 378.

48 Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972).

49 See, e.g., N.H. Rev. Stat. Ann. § 135-B: 43 (Supp. 1975) (every mentally ill patient has a right to adequate and humane treatment including such psychological, medical, vocational, social, educational or rehabilitative services as his condition requires to bring about an improvement in condition within the limits of modern knowledge); Ariz. Rev. Stat. Ann. § 36-511 (1974); Cal. Welf. & Inst. Code §§ 5001(e), 5152 (West 1972); Colo. Rev. Stat. Ann. § 27-10-116 (1973).

50 See, e.g., O'Connor v. Donaldson, 422 U.S. 563 (1975).

51 See, e.g.. In re Custody of a Minor, 250 F.2d 419 (D.C. Cir. 1957).

52 349 F. Supp. 1078 (E.D. Wis. 1972).

53 Id.

54 See O'Connor v. Donaldson, 422 U.S. 563 (1975). When the Court stated its opinion in Donaldson, seven states had approved statutes limiting involuntary commitment to persons whose dangerousness had been manifested in recent overt acts. 1975 Ala. Acts 2566; Cal. Welf. & Inst. Code §§ 5260, 5300 (West 1972); 1976 Haw. Sess. Laws Act 130 § 1; Mass. Gen. Laws Ann. ch. 123, § 1 (West 1972); Neb. Rev. Stat. § 83-1009 (1976); Wash. Rev. Code Ann. § 71.05020 (1975); Wis. Stat. Ann. 428, §§ 51.15-20 (West 1971).

55 Lessard v. Schmidt, 349 F. Supp. at 1093.

56 Addington v. Texas, 441 U.S. 418 (1979).

57 See also Fasulo v. Arafeh, 173 Conn. 473, 478-79, 378 A.2d 553, 556 (1977) (after a reasonable period of time following commitment during which a patient's status is unlikely to change the state must (1) bear the burden of initiating recommitment proceedings, (2) establish the necessity for recommitment on the same standard as that required for original commitment); Suzuki v. Quisenberry, 411 F. Supp. 1113 (D. Hawaii 1976).

58 U.S. Const, amend. XIV states: “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause prohibits states from passing legislation which creates classifications based on impermissible criteria. Power Mfg. Co. v. Saunders, 274 U.S. 490, 493 (1926).

59 Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968).

60 See generally Kirschner, Constitutional Standards for Release of the Civilly Committed and Not Guilty by Reason of Insanity: A Strict Scrutiny Analysis, 20 ARIZ. L. REV. 233, 261-66 (1978); German & Singer, Punishing the Not Guilty: Hospitalization of Persons Acquitted by Reason of Insanity, 29 Rutgers L. Rev. 1011 (1976).

61 See Baxstrom v. Herold, 383 U.S. 107, 114 (1965) (equal protection abridged by committing Baxstrom to an institution for dangerously mentally ill persons after com: pletion of his sentence without the judicial determination, afforded tovall others so committed, of either his dangerous propensities or mental illness); Wilson v. State, 259 Ind. 375, 386, 287 N.E.2d 875, 881 (1972).

62 In Lynch v. Overholser, 369 U.S. 705, 715 (1962), the Supreme Court noted that the mere fact of an insanity acquittal in itself fails to justify continued confinement without additional evidence regarding present mental condition. Similarly, in United States v. Brown, 478 F.2d 606 (D.C. Cir. 1973), a court delineated two factors it must consider in reviewing an insanity acquittee's mental condition: (1) the nature of the treatment received; and (2) the response to psychiatric care. Use of these two criteria reflects the court's increased concern about present mental health in judging the acquittee's suitability for commitment.

63 D.C. Code Ann. § 24-301(d)(2) (1973) (D.C. Court Reform and Criminal Procedure Act of 1970). The statute provides that if any person tried for an offense is acquitted solely on the ground that he was insane at the time of its commission, the court shall order such person to be confined in a hospital for the mentally ill. In Bolton v. Harris, 395 F.2d 642 (D.C. Cir. 1968), the court ruled that the presence of a temporary commitment period designed to provide psychiatrists with an opportunity to examine the insanity acquittee does not violate equal protection. Even though civil patients are not required to submit to automatic detention, the temporary commitment period represents a permissable distinction in the treatment of the two classes. However, the court did indicate that once this temporary examination period is over, no rational basis exists for denying insanity acquittees a civil hearing.

64 See notes 37-41 supra and accompanying text.

65 395 F.2d 642 (D.C. Cir. 1968).

66 Id. Although the court failed to find an express equal, protection violation, it did use equal protection language in its interpretation of the District's commitment statute (D.C. Code Ann. § 24-301(d)(2) (1973)). The court held that beyond the temporary examination period, the criteria for civil and criminal commitment must be identical; prior criminal conduct would not justify the application of substantially different standards and procedures for the two groups of mentally ill patients.

67 People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974) (defendant whose sanity may be questionable at the time a crime was committed may not be insane for the purpose of confinement after the mandatory commitment period is served); State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975): See also Menninger & Mayman, Psychological Aspects of the Organism Under Stress, 2 J. Am. Psychoanalytical Ass'n 67, 280 (1954); Norris, Somnabulistic Homicide Ghosts, Spiders and North Koreans, 5 Res Judicatae 29 (1951).

68 Bolton v. Harris, 395 F.2d at 650.

69 Baxstrom v. Herold, 383 U.S. 107 (1966) (past dangerousness proven by the commission of a crime is not in itself a conclusive indication that the mentally ill individual continues to be dangerous or mentally ill). In Cameron v. Mullen, 387 F.2d 193, 201 (D.C. Cir. 1967), the court stated that “while prior criminal conduct is relevant to the determination of whether a person is mentally ill and dangerous, it cannot justify the denial of procedural safeguards for that determination.“

70 Baxstrom v. Herold, 383 U.S. at 110; Wilson v. State, 259 Ind. 375, 287 N.E.2d 875 (1972).

71 People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569, 582-83 (1974) (insanity acquittees seeking release following the mandatory commitment period must receive procedures substantially similar to those given to civilly committed patients). Wilson v. State, 259 Ind. at 386, 287 N.E.2d at 881 (if committed, equal protection requires that the insanity acquittee be given the same standards for release received by civilly committed patients). The Model Penal Code also endorses the approach whereby the release procedures for insanity acquittees mirror those for a civil patient. Model Penal Code § 4.08 (Proposed Official Draft, 1962). See also Hamann, The Confinement and Release of Persons Accquitted by Reason of Insanity, 4 Harv. J. Legis. 55, 79 (1966).

72 N.Y. Mental Hygiene Law § 9.37 (McKinney 1973).

73 Id. § 9.31.

74 See People v. Lally, 19 N.Y.2d 27, 35, 224 N.E.2d 87, 92, 277 N.Y.S.2d 654, 660 (1966).

75 People ex rel Henig v. Commissioner of Mental Hygiene, 43 N.Y.2d 334, 338, 372 N.E.2d 304, 401 N.Y.S.2d 462, 465 (1977).

76 People v. Lally, 19 N.Y.2d 27, 35, 224 N.E.2d 87, 92, 277 N.Y.S.2d 654, 660 (1966).

77 See, e.g., Cross v. Harris, 418 F.2d 1095 (D.C. Cir. 1969) (a high probability of substantial injury); Reynolds v. Sheldon, .404 F. Supp. 1004 (N.D. Tex. 1975) (a propensity to commit criminal acts).

78 Torsney v. Gold, 47 N.Y.2d 667, 394 N.E.2d 262, 420 N.Y.S.2d 192 (1979). Torsney, a New York City Police Officer, shot and killed Randolph Evans, a fifteen-year-old black teenager. In the trial that followed, Torsney was acquitted by reason of insanity and committed to Creedmore Psychiatric Center for treatment of a mental illness known as psychomotor epilepsy. Seven months after Torsney's institutionalization the Commissioner of Mental Hygiene petitioned the court for his release pursuant to N.Y. Crim. Proc. Law § 330.20 (McKinney 1971). The lower court granted the petition based on the testimony of several of the state's mental health experts. Torsney's release was blocked temporarily when the Appellate Division ruled that Torsney failed to prove he was no longer a danger to himself or others. Torsney v. Gold, 66 A.D.2d 281 (1979). The Court of Appeals, however, reversed, holding that Torsney could not be confined on grounds which amounted to no more than a presumption of dangerous propensity. Applying the same substantive standard of release governing discharge of involuntarily committed civil patients, the court ruled that dangerousness unrelated to mental illness which did not require immediate treatment could not block release.

79 47 N.Y.2d 667, 394 N.E.2d 262, 420 N.Y.S.2d 192 (1979).

80 id. at 674-75, 394 N.E.2d at 266, 420 N.Y.S.2d at 196.

81 Id.

82 Torsney has not yet been widely interpreted in other jurisdictions.

83 Torsney v. Gold, 47 N.Y.2d 667, 674-75, 394 N.E.2d 262, 272-73, 420 N.Y.S.2d 192, 203-04 (1979) (Meyer, J. concurring). The effect of applying the same standards governing other civil commitments under the Mental Hygiene law is that insanity acquittees would no longer be compelled to carry the burden of proof in release hearings.

84 id. at 675, 394 N.E.2d at 273, 420 N.Y.S.2d at 204.

85 id. at 674-75, 394 N.E.2d at 674-75, 420 N.Y.S.2d at 203-04.

86 Id.

87 U.S. Const, amend. XIV § 1; See, e.g., Morrisey v. Brewer, 408 U.S. 471 (1972) (due process requires the employment of a just decision-making process before jeopardizing individual liberties).

88 See People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974); Wilson v. Indiana, 259 Ind. 375, 287 N.E.2d 875 (1972).

89 Culpability is negated since the defendant could not form the requisite intent to commit the crime with which he was charged. See note 5 supra and accompanying text.

90 United States v. Ecker II, 543 F.2d 178, 186 (D.C. Cir. 1976) (some insanity acquittees form an exceptionally dangerous class because of their particularly unstable mental conditions).

91 In State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975), the court ruled that the length of the mandatory commitment period was a matter within its discretion, and that a sixty day initial confinement did not exceed the boundaries of reasonableness.

92 Allen v. Radack, 426 F. Supp. 1052, 1056-58 (D.S.D. 1977) (a hearing is necessary at the end of the mandatory institutionalization period so that commitment will be based on a finding of present insanity); People v. McQuillan, 392 Mich. 511, 221 N.W.2d 569 (1974).

93 See note 92 supra.

94 See State v. Krol, 6 N.J. 236, 344 A.2d 289 (1975) (if the state cannot show in a sanity hearing that the acquittee is mentally ill and dangerous, then the acquittee may not be committed). People v. Lally, 19 N.Y.2d 27, 224 N.E.2d 87, 277 N.Y.S.2d 654 (1966); Benedek & Farley, The MacQuillan Decision: Civil Rights for the Mentally III Offender, 5 Bull. Am. Acad. Psych. & L. 438 (1977).

95 See notes 78-86 supra and accompanying text.

96 See Jackson v. Indiana, 406 U.S. 715, 738 (1972). The state's interest in confinement of mentally ill persons is limited to a time “where the nature and duration of commitment bears some reasonable relation to the purpose for which the individual is committed.“

97 See Matter of Torsney v. Gold, 47 N.Y.2d 667, 394 N.E.2d 262, 420 N.Y.S.2d 192 (1979); Dorsey v. Solomon, 604 F.2d 271 (4th Cir. 1979).

98 See The Insanity Defense in New York, a Report to Governor Hugh L. Carey (1978).

99 See Mesritz, Guilty But Mentally III: An Historical and Constitutional Analysis, 53 J. Urb. L. 472, 488 (1975-76); Morris, Mental Illness and Criminal Commitment in Michigan, 5 Mich. J. L. Ref. 2 (1971).

100 See Mitchell, New Mental Health Code Has Court System in a Turmoil, Detroit Free Press, Mar. 24, 1975, § A, at 2, col. 1; Diebolt & Mitchell, Killer, Freed As Sane, Held in Wife's Slaying, Detroit Free Press, Apr. 15, 1975, § A, at 1, cols. 3-4; Goldstein, The Problems of Insanity As a Defense, N.Y. Times, Dec. 2, 1977 § B, at 4, col. 1.

101 See Written Caution Cited in Release of Accused Man, N.Y. Times, Dec. 19, 1979, § B, at 1, col. 5.

102 See Creedmoor's Open Gates at Center of Controversy, N.Y. Times, Nov. 1, 1977, § B, at 39, col. 1.

103 Id.

104 Goldstein, The Problems of Insanity as a Defense, N.Y. Times, Dec. 2, 1977, § B, at 4, col. 1.

105 See Written Caution Cited in Release of Accused Man, N.Y. Times, Dec. 19, 1979, § B, at 1, col. 5.

106 Questionnaires were sent to the subscribers of the Criminal Law Review, whose readers consist mainly of prosecutors, defense attorneys, and judges. The majority of the 293 subscribers who responded disapproved of the insanity defense. Among this group, 40% felt the insanity defense worked fairly poorly and 21% felt that it worked very poorly. The two largest problem areas mentioned by the public officials answering the survey were: (1) superficial and incompetent medical testimony; and (2) the public's perception that the insanity defense could be used as a guilt avoidance mechanism by persons able to curry a jury's sympathy. Those who responded were dissatisfied not only with the insanity defense at trial but also with the discharge procedures following the mandatory commitment period; 70% of those responding believed that the current standards for release of insanity acquittees from mental health facilities were too lax. Burton & Steadman, Perceptions of the Insanity Defense, in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 73, 83-84 (1978). Professionals were concerned with the insanity defense, including poor statutory definitions, vagueness, uneven application and lack of understanding by juries and the public.

107 Pasework, Pantle, & Steadman, The Insanity Plea in New York, 1965-76, 51 N.Y.S.B.J. 186, 188 (1979).

108 Id.

109 Burton & Steadman, Perceptions of the Insanity Defense, in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 73, 83-85 (1978).

110 Id.

111 One critic commented: “ft]he professional criticism and the public condemnation of the insanity defense is widespread. The disrepute into which the insanity defense appears to be falling has profound impact upon both the criminal justice system and the mental health system.” The invocation of the insanity defense in sensational cases may suggest to the public that acquittal is unjustified. In addition, the insanity defense may create the impression that mental illness and dangerousness are synonymous. Prevost, Foreword in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 1,4(1978).

112 By mitigating punishment for heinous acts vis-a-vis the insanity defense, the court suggests to the public that individuals may escape retribution. Kolb, Reflections on the Insanity Defense, in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 91, 95 (1978).

113 When a jury acquits an individual even though there is no justification for such a finding of insanity other than misplaced sympathy, the public's faith in the equity of the judicial system may be disturbed. Steadman, Pasework, & Pantle, The Use of the Insanity Defense, in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 37, 38-39 (1978).

114 See Campbell v. United States, 307 F.2d 597, 614 (D.C. Cir. 1962) (Burger, J. dissenting) (psychiatric experts cannot be expected to accurately diagnose the mental and emotional makeup of all mentally ill defendants). us The problem with experts taking an adversarial position is that such testimony undermines the effectiveness of psychiatric evidence. A tendency exists among psychiatrists to use concepts and slogans which express the psychiatrist's ethical and legal conclusions about the defendant's criminal responsibility. Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967).

115 Id.

116 Id.

117 See Zubin, Classification of Behavior Disorders, 18 Ann. Rev. Psych. 373, 383 (1967). Zubin concludes from a survey of the major diagnostic studies conducted by psychiatrists before 1968 that different observers examining the same patient were frequently unable to concur on a specific diagnosis. This result occurred even though in many cases the psychiatrists jointly interviewed the patient — a practice which should have increased their rate of agreement. Further, when asked to construct general categories of diagnosis, the psychiatrist's level of concurrence was still not overwhelming.

118 One means of limiting expert testimony is to prohibit psychiatrists from using conclusory labels. The court in Washington v. United States, 390 F.2d 444 (D.C. Cir. 1967), held that a psychiatrist may not substitute conclusions about an individual's mental disease for the facts and analysis underlying these opinions. Similarly, the court in Rollerson v. United States, 343 F.2d 269, 270-71 (D.C. Cir. 1964), found that the “testimony of an expert like that of any other witness may be excluded if it reports mere opinion unsupported by underlying facts.“

119 It is beyond the capacity of a psychiatrist to comprehend the defendant's capacity to define the Tightness or wrongness of his action taken at the time the act was committed. At best he has only the recollections of the individual (distorted as we often know they may be) on which to base his judgment.

Wright, Problems in Administering the Insanity Defense, in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 101 (1978).

120 In United States v. Ecker, 543 F.2d 178, 196-99 (D.C. Cir. 1976), cert, denied, 429 U.S. 1063 (1977), the court addressed what release standards should be available to the insanity acquittee following commitment. The court held that it was time to reassert the criminal law interest in deterrence despite the not guilty verdict given to the defendant. Therefore, the court said, the dangerous insanity acquittee should be judged by a harsher standard than the non-criminal patient. Similarly, in Alter v. Morris, 85 Wash. 2d 414, 424, 536 P.2d 630, 635 (1975), the court subjected the insanity acquittee to greater procedural burdens. The court reasoned that the defendant's prior unlawful acts created a substantial likelihood of recurring dangerous behavior. This threat justified more severe treatment for insanity acquittees than for civilly committed patients.

121 See note 12 supra.

122 United States v. Ecker, 543 F.2d 178, 196-99 (D.C. Cir. 1976), cert, denied, 429 U.S. 1063 (1977); Dixon v. Jacobs, 427 F.2d 589, 604 (D.C. Cir. 1970) (Leventhal, J. concurring) (the insanity acquittee's past criminal conduct indicates that there is a greater likelihood that he will injure others in the future).

123 Dixon v. Jacobs, 427 F.2d 589, 604 (D.C. Cir. 1970) (Leventhal, J. concurring); Alter v. Morris, 85 Wash. 2d 414, 424, 536 P.2d 630, 635 (1975).

124 See note 3 supra.

125 id.

126 See note 5 supra.

127 Lynch v. Overholser, 369 U.S. 705, 714 (1962); In re Franklin, 7 Cal. 3d 126, 138, 496 P.2d 465, 471, 101 Cal. Rptr. 553, 559 (1972) (the defendant is incapable of entertaining the requisite mental state to commit an act generally punishable by law.)

128 See notes 140-42 infra.

129 Mich. Comp. Laws Ann. § 768.36(3) (West Supp. 1981).

130 Mich. Comp. Laws Ann. § 768.36(1) (West Supp. 1981).

131 Id.

132 Model Penal Code § 4.01 (Proposed Official Draft, 1962); see note 8 supra.

133 Mich. Comp. Laws Ann. § 768.36(l)(c) (West Supp. 1981).

134 See Mesritz, Guilty But Mentally III: An Historical and Constitutional Analysis, 53 J. URB. L. 472, 488 (1975-76), which suggests that the guilty but mentally ill alternative acknowledges that there are varying degrees of mental illness. The statutory construction encompasses only those persons suffering from less severe strains of mental abnormalities. See also Taylor, Partial Insanity as Affecting the Degree of Crime, 34 Cal. L. Rev. 625 (1946) which explains that a person suffering from some mental disturbance is not necessarily completely insane. A continuum exists between sanity and insanity and a defendant may fall anywhere in between.

135 Williams, The Act and the Criminal Law in Symposium, The Mental Health Act, 1959, 23 MOD. L. REV. 410, 415 (1960) (“It is now accepted that there is a borderland between sanity and insanity where one shades off into the other, which is inhabited by some seriously disturbed personalities.“).

136 See Note, Insanity—Guilty but Mentally III—Diminished Capacity: An Aggregate Approach to Madness, 12 John Marshall J. Prac. & Proc. 351, 375-76 (1978-79), which suggests that there is a quantitative difference in the amount of criminal intent that is possessed by the guilty but mentally ill and insane defendants. An insane person may not entertain the requisite criminal intent to commit a crime but a person who suffers from a lesser degree of mental abnormalities may be criminally responsible at the time he commits the illegal act.

137 The Memorandum in Support of New York State's Proposed Guilty But Mentally 111 Legislation (1979) (unpublished report printed by Senator Frank Padavan, 11th District, New York State Senate) [hereinafter cited as Memorandum] states:

It is further believed that the defense of insanity, an extreme defense, is afforded many more defendants than are truly insane according to the legal definition of insanity. As a result, this legislation was created so that a defendant with a diminished mental capacity … not use the mental hygiene system as a short circuit to freedom, but rather will be sentenced in accordance with the law and then afforded psychiatric treatment.

138 Id. Juries perceive insanity acquittals as the only means by which a mentally disturbed defendant can receive psychiatric treatment. However, if a defendant is mentally ill but sane enough to understand the nature of his act he should be punished but not denied the same medical care available to the insane.

139 Mich. Comp. Laws Ann. § 768.36(3) (West Supp. 1981).

140 Id.

141 Within the past two years, New York State Correctional facilities have made available quality psychiatric services to any inmate suffering from mental illness. The New York state prison system is equipped to provide individual, group and other psychotherapies, chemotherapy, and motivational therapy. It also maintains programs to treat acute and chronic illnesses which if untreated will make recidivism more likely. Wright, Mental Health Services in Correctional Settings, in The Insanity Defense in New York, a Report to Governor Hugh L. Carey 126 (1978).

142 Proponents of the Guilty But Mentally 111 legislation point to other states such as California where successful psychiatric treatment has been provided in correctional settings. A psychiatrist comparing the level of mental health care at a related California hospital and prison said: “Vaccaville (state penitentiary) provides a higher standard of psychiatric treatment than does the corresponding hospital for the criminally insane at Atascadero which is operated by the Department of Mental Hygiene.” Diamond, Criminal Responsibility of the Mentally III, 14 STAN. L. REV. 59, 85 (1961-62). For security reasons, state and federal prisons are particularly well suited for treating the criminally insane who are exceptionally dangerous, who disrupt treatment programs, and whose rehabilitation will progress just as rapidly while in a penal institution. The Medical Center for Federal Prisoners at Springfield, Missouri is another example of a prison that provides adequate psychiatric and social treatment to its mentally disturbed inmates. Magleby, Should the Criminally Insane be Housed in Prisons?, 47 J. Crim. L. C. & P. S. (1956-57).

143 Mich. Comp. Laws Ann. § 768.36(3) (West Supp. 1981).

144 Id. § 768.36(l)(b).

145 The court in People v. Jackson, 80 Mich. App. 244, 263 N.W.2d 44 (1977) held that classification of guilty but mentally ill framed by the legislature does not violate equal protection by being either arbitrary or unreasonable. The court explained that the legislature has a right to create this classification even though all mentally ill offenders will not be covered by the statute. Id. at 245-46, 263 N.W.2d at 45. In addition, in People v. McLeod, 77 Mich. App. 327, 258 N.W.2d 214 (1977), aff'd, 407 Mich. 632, 288 N.W.2d 909 (1980), the court found that due process is not violated by the statute even though it is not clearly established how the post sentence treatment plan will be implemented. The mere fact that a treatment program exists was sufficient to uphold the constitutionality of the law. Id. at 330-31, 258 N.W.2d at 216.

146 Note, Insanity—Guilty but Mentally III—Diminished Capacity: An Aggregate Approach to Madness, 12 John Marshall J. Prac. & Proc. 351, 369-74 (1978-79).

147 See Mich. Comp. Laws Ann. § 768.36(l)(b) (West Supp. 1981) which requires that the trier of fact must only find the defendant mentally ill at the time the offense was committed (emphasis added).

148 U.S. Const, amend. XIV, § 1.

149 See Miller v. Vitek, 437 F. Supp. 569, 573 (D. Neb. 1977), vacated and remanded on the issue of mootness, 436 U.S. 407 (1978), and modified, 445 U.S. 480 (1980) (there is a distinctive stigma that attaches to a defendant subject to psychiatric care in a mental institution where techniques of behavior modification are attempted).

150 Civil commitment hearings are an essential due process protection meant to prevent the states from misusing involuntary confinement procedures under the guise of protecting the public. See Jackson v. Indiana, 406 U.S. 715 (1974). United States ex rel Schuster v. Herold, 410 F.2d 1071, 1083-84 (2d Cir. 1969), cert, denied, 396 U.S. 847 (1969). Seven years before Schuster was eligible for parole he complained to authorities about prison corruption. Immediately thereafter, penal administrators placed Schuster in a mental hospital for the criminally insane. He remained institutionalized for thirty-one years. When Schuster finally was given a hearing the court held that procedures governing the hospitalization of civil patients should not be denied to mentally ill prisoners.

151 Vitek v. Jones, 445 U.S. 480 (1980).

152 See Comment, Cruel and Unusual Punishments, 3 Cath. U.L. Rev. 117, 118-19 (1953) (the eighth amendment is applicable to the states by reason of the due process clause of the fourteenth amendment of the Constitution); Robinson v. California, 370 U.S. 660 (1962).

153 See Comment, Cruel and Unusual Punishments, 3 Cath. U.L. Rev. 117, 118-19 (1953); Weems v. United States, 217 U.S. 349, 366-67 (1910).

154 The eighth amendment prohibition against disproportionality may be infringed where guilty but mentally ill inmates no longer suffer from psychiatric problems at the “time of institutionalization. Sentencing for the guilty but mentally ill offender is premised on the defendant's mental condition existing at the time the crime was committed. Therefore, it is possible that his mental health has returned by the date of his incarceration. In United States ex rel Schuster v. Herold, 410 F.2d 1071 (2d Cir. 1969), cert, denied, 396 U.S. 847, 849 (1969), the court recognized that a person in this position “will be exposed to physical, emotional and general mental agony. Confined with those who are insane, told that he too is insane … it does not take much for a man to question his own sanity and in the end to succumb to some mental abberation.” Id. at 1078.

155 Punishing a person who is mentally ill by sending him to prison is not very dissimilar from imposing punishment for the mere status of drug addiction which the court in Robinson v. California, 370 U.S. 660 (1962), held unconstitutional.

156 See Morris, “Criminality” and the Right to Treatment, 36 U. CHI. L. REV. 784, 798 (1968-69) which suggests that mentally ill convicts are entitled to the same level of treatment as that received by civilly committed patients. In Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966), one court established minimum criteria for adequate psychiatric treatment of insanity acquittees iti hospitals including proof that: (1) a bona fide effort to treat is being made; (2) the institution staffs an adequate number of psychiatric personnel; and (3) individualized treatment programs are established based on periodic evaluation of the condition and needs of the patient. Id. at 456-57 Weihofen, Institutional Treatment of Persons Acquitted By Reason of Insanity, 38 TEX. L. REV. 849 (1959), suggests that it is virtually impossible for a maximum security psychiatric ward to reconcile its duty to provide the patients with modern treatment programs and still fulfill its responsibility to keep the inmates securely institutionalized.

157 Hurst, , The Unlocking of Wards in Mental Hospitals, 114 Am. J. Psych. 306, 307 (1957)CrossRefGoogle ScholarPubMed (the therapeutics programs available to civil patients include voluntary patient programs, out-patient clinics, and comprehensive community mental health centers).

158 See Morris, , The Confusion of Confinement Syndrome: An Analysis of the Confinement of Mentally III Criminals and Ex Criminals by the Department of Correction of the State of New York, 17 Buffalo L. Rev. 651 (1967-68)Google Scholar

Whatever can be argued regarding inadequate treatment of civilly committed patients in civil state hospitals, is even more apparent regarding mentally ill criminals in so called Department of Correction mental hospitals. Whether these institutions are in fact hospitals or prisons, does not dispose of the necessity of providing treatment equal to that offered in civil hospitals.

Id. at 680-81 (footnote omitted).

159 See Furman v. Georgia, 408 U.S. 238 (1972) (the court expanded the parameters of the cruel and unusual punishment clause to proscribe punishment that was arbitrary, punishment that was unacceptable to contemporary society and most critically, punishment that was excessive or unnecessary). In Trop v. Dulles, 356 U.S. 86, 101 (1958), the Court stated that criminal sanctions must draw “meaning from evolving standards of decency that mark the progress of maturing society.” Id. at 101. Arguably, subjecting a non-mentally ill person to an environment designed specifically for treating insane prisoners violates the standard of decency. See note 154 supra.

160 See note 147 supra.

161 Cf. Morrisey v. Brewer, 408 U.S. 471 (1972) (during parole revocation hearings, parolees are entitled to present and cross-examine witnesses of their choosing).

162 B. Ennis, Prisoners of Psychiatry (1972); See note 159 supra.

163 Morris, , The Confusion of Confinement Syndrome Extended: The Treatment of Mentally III Non-Criminal Criminals in New York, 18 Buffalo L. Rev. 393, 428-29 (1968-69).Google Scholar “Whether one compares the statistics on average length of confinement, … [or the] relative stigma attaching from confinement, the inescapable conclusion is that ‘segregated’ treatment of any class of mental patients in a department of correction institution is inherently unequal, inherently discriminatory, and inherently unjust.” Id. at 428-29 (1968- 69) (footnotes omitted). In Kesselbrenner v. Anonymous, 33 N.Y.2d 889, 305 N.E.2d 903, 350 N.Y.S.2d 889 (1973), the court indicated that a mentally ill person placed in an environment with prison guards is likely to resist mental health treatment. The noncriminal psychiatric hospital has the advantage of convincing a patient that he is a sick man who needs help. Hirning, , The Sex Offender In Custody in Handbook of Correctional Psychology 233, 254-55 (R., Lindner & R., Seliger eds. 1947).Google Scholar

164 A state's failure to insure that prison inmates receive adequate psychiatric care may be subject to eighth amendment scrutiny. For instance, in Martarella v. Kelley, 349 F. Supp. 575, 597 (S.D.N.Y. 1972), the court stated that the eighth amendment is violated if conditions of confinement in an institution “are so bad as to be shocking to the consciences of reasonably civilized people.” Id. at 597, citing, Holt v. Sarver, 309 F. Supp. 362, 373 (E.D. Ark. 1970). However, in the past, courts dealing with prison affairs have been reluctant to expand the scope of eighth amendment review beyond situations where abuse of discretion by prison officials has threatened the lives of inmates. See, e.g., Campbell v. Beto, 460 F.2d 765, 767-68 (5th Cir. 1972); Sinclair v. Henderson, 435 F.2d 125, 126 (5th Cir. 1970).

165 Mich. Comp. Laws Ann. § 768.36(3) (West Supp. 1981).

166 Even though mental illness short of insanity is not taken into account in Mich. Comp. Laws Ann. § 768.36(1) (West Supp. 1981), when a defendant is determined to be guilty but mentally ill, the prisoner's psychiatric condition while in prison becomes a factor in determining parole eligibility under Mich. Comp. Laws Ann. § 768.36(3) (West Supp. 1981).

167 See, e.g., Mass. Parole Board and Advisory Board of Pardons, Decision Making Guidelines and Procedures for Parole Granting, Parole Revocation and Pardons 12 (1978) [Hereinafter Mass. Parole Board Procedures]. When determining eligibility for parole, a prisoner's mental health is an important consideration. The issue of whether the prisoner's mental illness has been corrected during incarceration or whether it will be possible to address the problem by a special program are factors used to determine a prisoner's eligibility for release. If a prison psychiatrist does not issue a favorable report it is likely that a parole board will not grant parole.

168 See notes 60-100 supra and accompanying text.

169 See Mich. Comp. Laws Ann. § 768.36(l)(c) (West Supp. 1981).

170 Model Penal Code § 4.01 (Proposed Official Draft, 1962); see note 8 supra.

171 Kirschner, , Constitutional Standards for Release of the Civilly Committed and Not Guilty by Reason of Insanity: A Strict Scrutiny Analysis, 20 Arizona L. Rev. 233, 276 (1978)Google Scholar (it would not be reasonable to expect either judges or legislators to be insulated from the public's political concerns).

172 Goldstein, The Problems of Insanity as a Defense, N.Y. Times, Dec. 2, 1977, § B, at 4, col. 1.

173 Pasewark, Pantle, & Steadman, The Insanity Plea in New York, 1965-1916, 51 N.Y.S.B.J. 186, 221-22 (1979). From 1965 to 1976, of the 107 former insanity acquittees released from civil institutions, only 21 of the males were arrested and none of the 19 females were subsequently arrested. These 21 arrests do not represent a consistent pattern of recidivism because 13 of the acquittees had been arrested 57 times previously. Repeat offenders are more likely to be arrested whether they are in mental hospitals or prisons. There were only 8 not guilty by reason of insanity patients in 11 years (1965-1976) found to have committed a crime subsequent to their release from a civil institution who were not repeat offenders.

174 Schwartz, , Moving Backward Confidently, 54 Mich. S.B.J. 847, 848 (1975).Google Scholar The statistics in Michigan where the Guilty But Mentally 111 statute was enacted in 1975, indicate overwhelmingly that insanity acquittees released after hospitalization are not likely to commit subsequent crimes. One hundred-fifty of the 270 individuals eligible for release under a civil standard in 1974 were adjudicated no longer dangerous. Of this group, only 2 were later prosecuted for felony offenses.

175 Pasewark, Pantle & Steadman, The Insanity Plea in New York, 1965-76, 51 N.Y.S.B.J. 186, 224 (1979).

176 Id.

177 Id.

178 Id.

179 Id.

180 See Creedmoor's Open Gates at Center of Controversy, N.Y. Times, Nov. 1, 1977, § B, at 39, col. I.

181 See Kesselbrenner v. Anonymous, 33 N.Y.2d 161, 164, 305 N.E.2d 903, 906, 350 N.Y.S.2d 889, 893 (1973) quoting, Katz, Goldstein, & Ofrshewitz, Psychoanalysis, Psychiatry & Law 696-97 (1967), where the court describes incarceration in Matteawan, a maximum security institution which places restrictions on its inmates not normally faced by civil patients. “There is no freedom of movement. Patients are always under strict supervision. They are confined to wards which are locked; they have no access to the outside. They are not permitted to visit their homes. They cannot look forward to convalescent care.“

182 See note 180 supra.

183 See Written Caution Cited in Release of Accused Man, N.Y. Times, Dec. 19, 1979, § B, at 1, col. 5.

184 For a list of these states and their conditional release statutes, see State v. Carter, 64 N.J. 382, 401-02, 316 A.2d 449, 4G0 (1976).

185 Goldstein, The Problems of Insanity as a Defense, N.Y. Times, Dec. 2, 1977, § B, at 4, col. 1.

186 See, e.g., Bonnie, & Slobogin, , The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 Va. L. Rev. 427 (1980)CrossRefGoogle Scholar (discussing the roles that psychiatrists should play in helping jurors decide issues dealing with mental illness and criminal culpability); Fletcher, , The Individualization of Excusing Conditions, 47 S. Cal. L. Rev. 1269 (1974)Google Scholar (psychiatrist's contributions to defenses of insanity involve less structural rigidity and more individualization now than in the past); A. Goldstein, The Insanity Defense 223-25 (1967) (psychiatrists provide symbolic affirmation of commonly held beliefs that mental abnormalities exist and effect the conduct of persons suffering from mental illness).

187 One cpurt has suggested that, despite all the criticisms, psychiatric testimony is still an irreplaceable element of the existing insanity defense. The court commented: “Unless a person is a raving maniac or a complete imbecile, a jury can hardly be deemed competent to reach a satisfactory decision without the aid of expert witnesses.” Jones v. State, 289 So. 2d 725, 729 (Fla. 1974).

188 Bonnie, & Slobogin, , The Role of Mental Health\Professionals in the Criminal Process: The Case for Informed Speculation, 66 Va. L. Rev. 427, 493 (1980).CrossRefGoogle Scholar

189 Id.