Guilty but Mentally Ill

The verdict of ‘‘guilty but mentally ill’’ (GBMI) was developed in Michigan in 1975 in response to dissatisfaction with the insanity defense and has since been adopted by approximately a quarter of the other states. The insanity defense is based on the premise that only individuals who act knowingly and willingly should be held criminally responsible. Thus, a defendant who is acquitted under a ‘‘not guilty by reason of insanity’’ (NGRI) verdict lacks the requisite mens rea to be convicted, even though he or she may have committed the offense. Such insanity acquittees can be civilly confined for as long as they are dangerous, though they are entitled to regular hearings on that issue. When GBMI was first proposed, several highprofile crimes committed by insanity acquittees had increased public fears about the premature release of dangerous individuals from psychiatric facilities and had sapped public confidence in psychiatrists’ ability to predict dangerousness.

A GBMI verdict is a conviction that recognizes the defendant’s mental illness. However, because the defendant is held criminally responsible, a GBMI verdict allows for the incarceration, not just civil commitment, of mentally ill offenders. GBMI offenders can be sentenced to prison and incarcerated for the duration of their sentences, even if they no longer present a danger to others. Defendants convicted upon a GBMI verdict may spend a portion of their sentence in a psychiatric facility and/or receive treatment in a correctional institution. Proponents of GBMI laws believe they reduce the number of unwarranted insanity acquittals and protect the public through the incarceration of dangerous individuals. The GBMI verdict also allows juries to recognize that a defendant’s mental illness may be serious enough to require treatment, but not so serious as to negate criminal responsibility.

A GBMI verdict is only available if the defendant asserts the insanity defense. It does not replace the NGRI verdict, but rather provides an additional option for the jury or, in the case of a plea agreement, an additional option for the defendant. The GBMI verdict, unlike theNGRI verdict, assumes that the individual had the requisite mens rea, despite his or her mental illness. Thus, a GBMI verdict requires a finding that the defendantwasmentally ill but not legally insane at the time he or she committed the offense.

Critics contend that the real purpose of GBMI laws is not treatment since mentally ill prisoners are already supposed to receive mental health services and adequate services are nevertheless rarely available. Rather, they are an expansion of criminal responsibility to include the mentally ill. Critics also maintain that the GBMI verdict violates due process since there is no hearing on the defendant’s current mental state; violates equal protection because GBMI defendants may be treated less well than regular defendants or insanity acquittees; constitutes cruel and unusual punishment because insane individuals could inaccurately be found GBMI; and effectively eliminates the insanity defense because juries do not understand the difference between a GBMI and NGRI verdict. Courts have been unsympathetic to these arguments.

MIRIAM J. AUKERMAN

References and Further Reading

• Frey, Roger George, The Guilty but Mentally Ill Verdict and Due Process, Yale Law Journal 92 (1983): 475–498.
• LaFond, John Q., and Mary Durham, Cognitive Dissonance: Have Insanity and Civil Commitment Reforms Made a Difference? Villanova Law Review 39 (1994): 92–122.
• Morris, Norval. Madness and the Criminal Law. Chicago: University of Chicago Press, 1982.
• Slobogin, Christopher, The Guilty but Mentally Ill Verdict: An Idea Whose Time Should Not Have Come, George Washington Law Review 53 (1985): 494–526.
• Smith, G. A., and J. A. Hall, Evaluating Michigan’s Guilty but Mentally Ill Verdict: An Empirical Study, Journal of Law Reform 16 (1982): 75–112
• Steadman, Henry et al. Before and After Hinckley: Evaluating Insanity Defense Reform. New York: Guilford, 1993.

See also Cruel and Unusual Punishment (VIII); Due Process; Equal Protection of the Law (XIV); Insanity Defense; Mentally Ill