The Moral Basis of the Insanity Defense
Two fundamentally distinct questions are intertwined in discussions of the insanity defense. One concerns the moral issue of responsibility, a question looking backward to the offender's mental condition at the time of the offense. The other is essentially dispositional and looks forward in time: what should be done with mentally disordered offenders, including those who are acquitted by reason of insanity, to minimize the risk of future recidivism?
This article addresses the issue of responsibility. Sweeping proposals to abolish defendant. The moral core of the defense must be retained, in my opinion, because some defendants afflicted by severe mental disorder who are out of touch with reality and are unable to appreciate the wrongfulness of their acts cannot justly be blamed and do not therefore deserve to be punished. The insanity defense, in short, is essential to the moral integrity of the criminal law.
But there are several observations to be made about the dispositional issues now receiving legislative attention.
First, the present dissatisfaction with the insanity defense is largely rooted in public concern about the premature release of dangerous persons acquitted by reason of insanity. Increased danger to the public, however, is not a necessary consequence of the insanity defense. The public can be better protected than is now the case in many states by a properly designed dispositional statute that assures that violent offenders acquitted by reason of insanity are committed for long-term treatment, including a period of postdischarge supervision or "hospital parole."