Problems with the Insanity Defense

There is little doubt that the American public has become more fearful of violent crime and less inclined to give the violent criminal the opportunity to offend a second or third time. Different states have addressed this concern in different ways, with laws mandating stiffer sentences, life sentences for career criminals, harsher sentences for those using violence in other crimes, and less inclination to excuse criminals with an insanity defense. Still, the law does recognize the influence of mental illness on the offender, though this leaves society with a problem--what to do to protect the public. The public is often aghast when a murderer successfully pleads insanity, is sent to a mental institution, and then is released once a team of doctors asserts that he or she is "cured" and can return to society. The public does not see this as punishment, which indeed it is not, and is often not convinced that the murderer is truly "cured" and will not harm someone once released. There is also the impression that such an offender has "gotten away with murder." Proposals have been made for different forms of punishment to correct this problem, such as preventive detention to assure that a criminal will not commit another crime, or a new verdict such as "guilty but insane" so that the offender serves a prison sentence after being certified as sane once more. A recent case in North Carolina has brought this issue to the fore when Wendell Williamson, a student who

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dual constitutes a threat of bodily harm to members of the public, with confinement possible for an indeterminate term, up to life. Seventeen other jurisdictions also have some form of indeterminate confinement for sex offenders (Hirsch 418-419). The Model Sentencing Act suggests that a felony offender convicted of certain serious crimes be sentenced for an extended term of up to 30 years if found by a psychiatric examination to be dangerous. A trial judge may then extend the term of imprisonment beyond the maximum provided for a given offense. The indeterminate sentencing law in California gives an independent sentencing board the discretion to determine release dates within maximum and minimum statutory limits. Conventional parole situations also provide another instance in which predictive judgments are made (Hirsch 419-420). Hirsch examines the issue of preventive detention and finds that it is not a good policy choice: Even if the predictive methods were assumed to be highly accurate, preventive confinement in the model was found not sustainable, because it infringed the right of individual choice and entailed significant risks of abuse. . . The addition of mandatory rehabilitative treatment, likewise, did not sustain t

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