Should ‘guilty but mentally ill’ replace the insanity defense?

Abraham L. Halpern, M.D. Professor Emeritus of Psychiatry, New York Medical College, Valhalla       YES The insanity defense makes a mockery of the criminal justice system. It tarnishes the public’s sense of justice and is frequently harmful to those the plea is intended to benefit, often hospitalizing them in overcrowded and understaffed institutions. It should be supplanted by guilty but mentally ill, a plea allowed in a dozen states.   But if it is to be meaningfully different than guilty by reason of insanity, several qualifications must be included. There must be testimony from psychiatric or psychological experts on how the mental condition affected intent during the crime. This information should be available to be used by the judge in sentencing.   Also, the judge must have sentencing options, such as the authority to place non-dangerous defendants who are guilty but mentally ill on probation and, when appropriate, to order that they be hospitalized for treatment.   The court should be able to order prison hospitalization for dangerous mentally ill defendants or those with personality disorders who can’t appreciate wrongfulness, yet whose condition is unsuitable for hospital treatment.   Mental-health professionals should be available in prisons to give outpatient treatment to inmates who don’t need hospitalization and for those who are returning to prison from prison hospitals.   There should also be special parole hearings at which the mental-health staff determines whether the illness has been adequately treated, and whether release would be consistent with public safety.   With these stipulations in place, adoption of guilty but mentally ill would finally open the door for more rationality-after 200 years of jurisprudential disarray-in handling mentally disordered offenders.

Ralph Slovenko, J.D., Ph.D. Professor of Law and Psychiatry, Wayne State University Law School, Detroit       NO Guilty but mentally ill is a sham. It is nothing more nor less than another guilty verdict.   Because juries are not instructed about the consequences of a verdict of guilty but mentally ill, they believe that it ensures special treatment for the prisoner’s illness. To that extent, it is a fraud. Both the guilty and the guilty but mentally ill are sent to the same penitentiary.   Michigan was the first state to enact guilty but mentally ill. It was a reaction to a 1974 State Supreme Court decision holding that after 60 days’ confinement, someone acquitted by reason of insanity had to meet the standards of civil commitment. As a result, 64 persons were released, and two committed vicious crimes shortly afterward.   So the clear goal of guilty but mentally ill is long-term commitment for the defendant.   Admittedly, an insanity defense poses problems. But jury deliberation gives meaning to society’s ideas of personal responsibility or irresponsibility. By substituting guilty but mentally ill for the old insanity plea, this function is lost, and jurors can avoid the moral issues inherent in deciding guilt or innocence.   Use of guilty but mentally ill is a circumvention. It makes sense only if meaningful mental-health treatment is given. But there are often intractable problems in providing it.   In cases where guilty but mentally ill is used, it is the prosecutor, not the defendant, who urges the jury to return a verdict of guilty or guilty but mentally ill, those verdicts being equivalent. The jury is not advised of what happens to a defendant found to be guilty but mentally ill. The circumvention deceives the jury and hoodwinks the public.