Proposed Federal Criminal Code Reform Would Abolish Insanity Defense

Developments in Mental Health Law, January-March 1982 | Go to article overview

Proposed Federal Criminal Code Reform Would Abolish Insanity Defense


The Senate version of the proposed Criminal Code Reform Act of 1981 (S. 1630) was reported to the full Senate on December 22, 1981 (S. Rept. 97-307). While for the most part the bill represented over fifteen years of work, that portion concerning the insanity defense is a relatively recent and potentially controversial addition to the bill.

S. 1630 would abolish in federal court the insanity defense as it is today used in all federal courts and most state courts. In its place, S. 1630 provides that where "the issue of insanity is raised" by the defense, prosecution, or the court, "the jury may return a special verdict of 'not guilty only by reason of insanity'." See Section 3612(b).

"Insanity" is defined by Section 3617(a)(1) to mean "a mental disease or defect as a result of which a person lacked the state of mind required as an element of the offense."

S. 1630 proposes in Section 302 to require for most federal crimes proof of one of four different culpable states of mind at the time of the offense. Depending on the offense, the prosecution must prove that it was done "intentionally," "knowingly," "recklessly," or "negligently." This is a substantial improvement over present federal law which contains seventy-nine different states of mind.

A successful "insanity defense" under S. 1630 would consist of failure of the prosecution to prove the required culpable state of mind beyond a reasonable doubt. This essentially is the "mens rea" defense available under current law independent of the separate American Law Institute insanity defense.

Today, even where a defendant benefits from the federal A.L.I. insanity defense, there exists no federal procedure for committing the defendant to a mental health or mental retardation facility. At the same time that S. 1630 abolishes the traditional insanity defense, it enacts a post-acquittal by reason of insanity commitment procedure in Section 3613.

Within forty days of the acquittal by reason of insanity, the court, under Section 3613, must conduct a hearing. The government must prove by clear and convincing evidence that the defendant is

   presently suffering from a mental
   disease or defect as a result of which
   his release would create a substantial
   risk of bodily injury to another person
   or serious damage to the property of
   another.

If the government succeeds in its proof, the defendant is committed, preferably to a state mental health or mental retardation facility. …

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