This article will first explore the reasons for the controversy over the insanity defense to provide insights, both historical and contemporary, into the purposes and functions of that defense. A brief examination will be made of judicial decisions in the last twenty years, which have largely, but not completely, eliminated the distinctions drawn historically between the "civilly" and "criminally" mentally ill. The article will then examine the growing numbers of "Guilty But Mentally Ill" (GBMI) laws, with some emphasis upon the Michigan statute as the archetypal GBMI law. It will be argued that the GBMI laws are fatally flawed in two fundamental respects. First, they unconstitutionally undercut a criminal defendant's due process right to present an insanity defense, by encouraging juries to reach a compromise GBMI verdict in cases of mentally ill defendants charged with particularly heinous crimes. Second, because they do not guarantee, and usually do not provide, psychiatric treatment to defendants found "guilty but mentally ill," these laws deny those defendants their constitutional right to such treatment." In conclusion, the article will explain why the insanity defense is essential to the integrity of the criminal law, and explore the alternative of conditional release as a way in which the many competing demands on the insanity defense can be reconciled while still passing constitutional muster.
Linda C. Fentiman, "Guilty But Mentally Ill": The Real Verdict is Guilty, 26 B.C. L. Rev. 601 (1985), available at http://digitalcommons.pace.edu/lawfaculty/326/.