On March 30th, 1981, a young man named John Hinckley Jr. fired his .22 caliber revolver at President Ronald Reagan, striking him in the left armpit. In his 1982 trial, John Hinckley Jr. was found not guilty of attempted murder by reason of insanity. For John Hinckley Jr., the incident marked the ultimate attempt at winning actress Jodi Foster’s attention and desire. However, for most Americans and the legal system at large, the attempted assassination of Reagan marked a major shift in the perception of the insanity defense. The “Not Guilty by Reason of Insanity,” or NGRI, refers to a defense plea where the defendant admits to the crime “but asserts a lack of culpability based on mental illness.” Since the popularity of the John Hinckley Jr. case, the court of public opinion has notoriously renounced the idea of the insanity defense as viable and just, asserting that the insanity defense serves as a legal loophole for the most dangerous of criminals to avoid their due punishment. In maintaining this assertion, the public and legal system ignore criminal law precedent and extensive empirical literature suggesting that modern NGRI legislation prevents mentally impaired defendants from just and equal treatment.

To properly comprehend the implications of the current legal opinion on the insanity defense, it is essential to understand its history. As reported by Frontline in 2014, the notion that a subset of criminal defendants must be found not culpable for their crimes due to their mental states has remained present in the fabric of Anglo-American law for centuries. As early as 1581, legal treatises created exceptions for the clinically insane stating, “If a madman or a natural fool, or a lunatic in the time of his lunacy do [kill a man], this is no felonious act for they cannot be said to have any understanding will.” In 1843, the case of Daniel M’Naghten, a failed assassin acquitted from conviction based on insanity, established a more formal insanity defense. The jury maintained that M’Naghten’s assassination of the prime minister’s secretary stemmed from his deeply held convictions that held the prime minister solely responsible for his economic misfortunes. This led to the formulation of the M’Naghten rule, asserting that a defendant can be not held liable for a crime if he did not know what he was doing was wrong at the time the crime was committed. Following decades of the M’Naghten rule standard, scholars began to criticize the rule as “rigid and antiquated,” culminating in the 1954 court case Durham v. United States. Decided by the U.S. Court of Appeals for the District of Columbia, the case established the “Durham Rule” which held that a defendant could not be found criminally liable if the criminal act was a product of an objective mental disease. Further softening the standard for the insanity plea, the American Law Institute modeled a new standard for insanity in 1962, requiring that a defendant only lack a “substantial capacity” to understand right from wrong. In combination with a growing societal concern in the 1960s and 1970s regarding the civil rights of the mentally ill, historical precedent points to a longstanding societal push to distinguish between defendants aware of their actions and defendants who are not.

Despite the historical and legal record reflecting an entrenched societal concern for the rights of mentally disabled defendants, the landscape of the insanity plea changed forever with the attempted assassination of Reagan and the subsequent acquittal of defendant John Hinckley Jr. Enraged at the NGRI verdict of his attempted killer, Reagan used the public’s anger at a guilty man going free to pass the Insanity Defense Reform Act of 1984. The act marks the first federal legislation governing the insanity defense and mentally disabled defendants in the United States. Before the John Hinkley Jr. case, the burden of proof in federal court was on the prosecution to prove beyond a reasonable doubt that the defendant was sane. With the 1984 reforms, the burden of proof was placed on the defendant to provide convincing evidence of insanity at the time of the crime. Following the federal government’s lead, over 30 states shifted the burden of proof from the prosecution to the defense, resulting in a mixed bag of insanity defenses across the current U.S. legal system. Despite countless reforms to the insanity defense, there is little empirical evidence to suggest that changing legislation impacts the jury’s verdicts. In experiments aimed at testing the impact of various jury instructions on insanity defense verdicts, researchers found that subjects showed very low levels of comprehension in regards to the differences between of the type of jury instruction displayed. Further, research suggests the more impactful jury decision-making factor in insanity cases remains jurors’ preexisting attitudes towards the insanity defense and the mentally impaired community. Thus, to engage in understanding the state of the modern insanity defense and deconstruct a system harmful to mentally ill defendants, one must turn to the current state of public opinion.

An overwhelming majority of modern Americans express dissatisfaction with the insanity defense’s existence. According to an extensive survey, researchers have concluded that most U.S. citizens view the insanity defense as a legal loophole in avoiding conviction. Public opinion misconstrues the insanity defense as leading to NGRI individuals release into society, playing on an overwhelming fear that the mentally impaired are among the most dangerous defendants present in the criminal system. Despite the popular perception that the insanity defense remains in every serial killer’s back pocket, an analysis of the insanity in eight states between 1976 and 1985 found that although the public estimated the use of the insanity defense in 37% of felony cases, the actual use only occurred in 0.9% of felony cases, proving to be successful around 15 to 25% of the time. Contrary to popular belief, most defendants found not guilty because of insanity remain institutionalized, with the average stage of NGRI individuals in mental institutions being 28.7 months. With the time spent in an inpatient setting varying primarily based on whether the defendant would be considered  “dangerous” to society, some policymakers suggest  that defendants committed to mental institutions may face longer periods of confinement than they would have in a correctional facility. Moreover, little evidence suggests NGRI and non-NGRI individuals have any meaningful difference in recidivism rates. In fact, literature suggests a grim reality for mentally impaired defendants: a societal acceptance of their continued confinement.

With society’s acceptance that the mentally impaired prove too “dangerous” to be sentenced in the same way as other defendants, it is important to consider why this presumption of “dangerousness” proves problematic. The foundation of the NGRI doctrine is based on the Equal Protection Clause of the 14th Amendment and upheld by the U.S. Supreme Court. In cases such as Baxstrom v. Herold and Jackson v. Indiana, the Supreme Court ruled against differentiating between NGRI individuals and other civil commitment cases (Jackson v. Indiana, 1972). However, the Supreme Court also held in Jones v. United States that the Due Process Clause of the 14th Amendment permitted the government to confine a NGRI individual to a psychiatric institution until they were considered “not dangerous to society,”even when confinement extended beyond the maximum penal sentence. The juxtaposition between these holdings has resulted in modern NGRI legislation placing the burden of eligibility for release on the defendant and consequently, resulting in NGRI defendants serving longer prison terms than if they plead guilty. In the tension and uncertainty surrounding NGRI legislation, the U.S. Supreme Court has become complicit in the enhanced confinement of mentally impaired defendants proven not criminally culpable under the law, placing the burden upon the mentally impaired themselves to prove they are not a threat to their communities.

Despite long-standing legal precedent and empirical evidence surrounding the real experience of defendants found not guilty because of insanity, many critics maintain that the insanity defense should be abolished for other reasons. From arguing that the NGRI holds bias against underprivileged minorities to overreliance on mental health professionals, policymakers and researchers have their criticisms. There are valid concerns of racial and socioeconomic bias in the U.S. criminal justice system; however, as of today, there is no empirical evidence to suggest a racial or socioeconomic bias in the success of the insanity defense (Boehnert, 1989). While some critics point to the disadvantage for low-income individuals in paying for psychiatric assistance in proving themselves as NGRI, the U.S. Supreme Court held in Ake v. Oklahoma that the state entitles defendant’s psychiatric assistance at state expense (Ake v. Oklahoma, 1985). Furthermore, the issue of defendants struggling to pay costs for expert opinion is not unique to the insanity plea. Court cases requiring forensic analysts and expert opinion also necessitate higher costs, not just those that involve NGRI pleas. Regarding expert opinions, critics have also pointed out that the insanity defense relies too heavily on mental health experts, who debate among themselves how to properly assess mental capability and other requirements necessary for an insanity plea. While this concern is grounded in broader hesitation to incorporate the uncertainty of social science into legal precedent, legal critics must remember the ultimate opinion testimony ban in many courts results from the Insanity Defense Reform Act of 1984. The ban on ultimate opinion testimony effectively prevents experts from providing their conclusion of whether or not the defendant had a mental illness at the time of the crime, thus preventing any expert from providing a judge or jury their “ultimate opinion.” However, there is little evidence to suggest that this ultimate opinion testimony ban does much in swaying a final trial decision. 

Acknowledging that social misconceptions and unjust confinement practices marre the status of modern NGRI legislation, it is important to analyze proposed NGRI reforms and understand possible paths forward. One proposed reform to NGRI legislation introduces the Guilty But Mentally Ill Verdict, or GBMI. As of 2021, six states allow jurors to reach a GBMI verdict as a way to decrease the number of defendants found NGRI. However, empirical research suggests jury confusion in determining the difference between NGRI and GBMI, citing that only 4% of jurors could properly distinguish between the two verdicts, thus failing to accomplish the reform’s goals of lowering NGRI verdicts. Another possible defense for mentally impaired individuals involves the verdict of “diminished capacity,” a legal doctrine that argues a defendant cannot meet the mental capacity standard to meet the mens rea, or “criminal mind” requirement of many statutes. While some states have put a diminished capacity or GBMI measure in place, some states have moved to abolish the insanity plea altogether. For example, the U.S. Supreme Court’s holding in Kahler v. Kansas allowed states to abolish the insanity defense without violating the Constitution (Kahler v. Kansas, 2020). While some have championed the abolishment of the NGRI for its reduction in the mistreatment of mentally impaired defendants, it is important to remember that, without any sort of distinction, mentally impaired individuals are sent to prisons where they fail to receive necessary care, attention, and rehabilitation. 

It is no secret that the U. S. prison system lacks a stellar reputation in its treatment of inmates, especially inmates those with mental disabilities. According to the Substance Abuse and Mental Health Services Administration, an estimated 44% of inmates in jail and 37% of inmates in prison suffer from mental illness. This significant prison population, who are guaranteed psychological and physical aid, seldom receive such aid due to correctional facilities’ financial struggle to provide substantial healthcare (Gonzalez, 2014). With the struggles facing mentally impaired defendants in all aspects of the legal system, it is essential to consider a potential path forward for all mentally ill defendants regardless of NGRI status. According to Mental Health for America, the primary focus of legislation and community action must go towards the “maximum diversion of persons with serious mental illness from the criminal justice system.” In practice, maximum diversion involves community-based services for the mentally disabled and making efforts to engage law enforcement in education that serves to help officers better understand the treatment of mental illness and de-escalation strategies. Organizations such as the Police-Mental Health Collaboration, or PMHC, have developed programs and partnerships with law enforcement agencies around the country. Community-based organizations like PMHC aim to better understand how to approach individuals struggling with mental illness, with the hope of diversion from prison to rehabilitation facilities and improved outcomes for mentally ill defendants.

While community-based efforts for NGRI and mental illness reform are important, much of NGRI and mental illness reform must come from reshaping public opinion. Despite society’s progression towards mental health awareness and acceptance, popular public opinion asserts that the insanity plea serves as a “get-out-of-jail-free card” for mentally disabled individuals. Furthermore, due to rampant stigma surrounding certain mental illnesses, such as schizophrenia or bipolar disorder, popular sentiment maintains that severe illness permits the right to confine an individual from society until they prove themselves to be “safe.” This notion is incredibly harmful in the proliferation of mental illness stigma in the U.S. and sets a dangerous precedent. All the court needs to sentence an individual to unconditional commitment is reasonable doubt of their sanity. To this day, there is no answer as to how a mentally disabled individual accused of being “dangerous” to society fares in attempting to prove themselves worthy of entering society again. The U.S. criminal justice system should adhere to the Equal Protection Doctrine and the extensive literature on the injustices faced by mentally ill defendants. It is only then that steps can be taken to truly secure equal protection under the law for all, especially for society’s most vulnerable.