Retaining a Modified Insanity Defense

Abstract

The insanity defense must be retained because it is fundamentally just. Some mentally disordered defendants are so irrational at the time of their offenses that they lack the basic preconditions of moral responsibility, and therefore they must be excused. Retaining the insanity defense will not compromise public safety, nor will abolishing it lead to the remedying of associated social problems such as the substandard mental health care in jails and prisons. Nevertheless, there are real problems with the administration of the defense that must be addressed. The substantive tests must be revised, the burden of persuasion should be put on the defendant, the role of experts should be limited, and post-acquittal procedures must be made more rational. Impatience with the practical problems, which can be ameliorated by sensible reforms, should not cause society to abandon a basically fair doctrine.