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George Washington Law Review

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mentally ill, insanity defense, guilty but mentally ill, criminal law


Criminal Law | Law


The guilty but mentally ill verdict has received increasing attention. Several states had already passed or were seriously considering legislation establishing a guilty but mentally ill verdict before John Hinckley's 1982 acquittal vaulted the idea into national prominence. Today at least twelve states have adopted some version of the verdict and perhaps twenty others have considered or are considering similar statutes.

Yet despite the popularity of the guilty but mentally ill scheme, the American Bar Association's Criminal Justice Mental Health Standards, the American Psychiatric Association Statement on the Insanity Defense,' and the National Mental Health Association's Commission on the Insanity Defense all have recommended against its adoption. This article attempts to justify the ABA's recommendation. Part 1 summarizes the concerns that gave rise to the guilty but mentally ill verdict and suggests that those concerns are exaggerated. It concludes that the insanity defense has not been significantly abused, nor has it led, in most cases, to inappropriate release following acquittal. Acknowledging, nonetheless, some need both to reduce the potential for mistaken outcomes and to provide greater protection to the public, Part II investigates the guilty but mentally ill verdict on its own terms, by examining the available data addressing its implementation. Although equivocal, the results of this research strongly suggest that the new verdict fails to achieve its stated goals. Part III argues that, regardless of its practical success, the guilty but mentally ill verdict should not be adopted because it introduces a foreign and meaningless element into the criminal justice system.

Finally, Part IV demonstrates that the verdict is unnecessary, even assuming that the current system requires reform and that the guilty but mentally ill verdict effectively accomplishes its goals in a manner compatible with the theoretical foundation of the criminal law. Redefining the insanity defense, carefully structuring the commitment process for insanity acquittees, and ensuring treatment for those found guilty or not guilty by reason of insanity would more directly and effectively address the concerns underlying the current attraction toward the guilty but mentally ill verdict.

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