Academic journal article Fordham Urban Law Journal

Insanity Acquittees in the Community: Legal Foundations and Clinical Conundrums

Academic journal article Fordham Urban Law Journal

Insanity Acquittees in the Community: Legal Foundations and Clinical Conundrums

Article excerpt


This Article will provide an in-depth discussion of legal cases that have shaped American policy dealing with individuals found not guilty by reason of insanity (NGRI) and deemed fit to return to the community. This Article will discuss several aspects of conditional release relevant to the legal community. Such factors include societal attitudes, relevant legal case law, and data-supported outcomes of individuals placed back in the community, In addition, this Article will deal with issues related to violence risk assessment and evaluate risk assessment effectiveness in determining who may be an appropriate candidate for community return. Contrary to popular belief, individuals adjudicated NGRI, even for violent offenses, are generally not at high-risk for future violence. This review will present information demonstrating the low recidivism risk by individuals adjudicated NGRI and released back to the community. This Article demonstrates the promise of conditional release for insanity acquittees from both public safety and fiscally responsible positions. This Article summarizes and lays out arguments for continued, and potentially even expanded, use of conditional release to properly manage insanity acquittees.


Introduction                                                  848
 I. Insanity Defense Attitudes, Conditional Release, and the
    Law                                                       849
 II. Violence Risk Assessment with Insanity Acquittees        856
 III. Post-Foucha Issues: Dangerousness, Diagnoses, and
      Commitment                                              861
Conclusion                                                    868


The not guilty by reason of insanity defense (NGRI) remains one of the most debated and contested areas of mental health law, replete with legal, moral, and political overtones. The idea that someone can commit a crime, even a violent one, and be found non-responsible in the eyes of the law, has created a public backlash against the insanity defense, including its abolition in four states (Kansas, Montana, Idaho, and Utah). (1) Despite the unpopularity of the NGRI defense, there has been an increasing trend toward discharging insanity acquittees from the hospital back to community placements. (2) Although society is often against a return to the community for insanity acquittees, it is fiscally and clinically prudent to allow such conditional discharges to continue. These individuals are not simply discharged to the community with unfettered access to the community. Instead, insanity acquittees must follow a series of conditions in order to maintain their newfound freedoms. Known as conditional release, insanity acquittees typically must remain medication compliant, attend specialized therapy, not possess weapons, abstain from substance abuse, and, of course, not engage in criminal behavior.

Several landmark cases over the previous twenty-five years have paved the way for the development of specialized programs to treat and maintain NGRI acquittees in their respective communities. (3) Additionally, many legislatures have acted in accordance with this judicial shift through the provision of legal mechanisms for releasing individuals adjudicated NGRI back to the community. This Article focuses on substantial areas of conditional release. Part I unpacks attitudes toward the insanity defense and its influence on the treatment of insanity acquittees. This part considers the growing trend of allowing insanity acquittees to be returned to their respective communities, even in light of substantial misinformation perpetuated regarding the relationship between violence and mental illness. Part II provides an overview of violence risk assessment, specifically as it relates to potential danger with insanity acquittees and potential community placement. This part outlines limitations of current risk assessment methodology for predicting violence and recidivism with insanity acquittees in the community on conditional release. …

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