CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, September 29, 2022

Goodman on Insanity-Plea Bargains

Sarah Goodman has posted Insanity-Plea Bargains: A Constitutionally and Practically Good Idea? (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

Plea bargaining is ubiquitous in the United States criminal legal system. Ninety-four percent of felony cases and ninety-nine percent of misdemeanor cases end in guilty pleas. Some scholars estimate that seventy-five percent of all guilty pleas are a plea bargain with the government. Mental illness is also prevalent in the United States, affecting over fifty percent of people at some point in their lifetime.

Given this prevalence, one would presume the criminal legal system would recognize and respond to defendants’ mental illnesses. Indeed, the criminal legal system developed two responsive pleas—Not Guilty by Reason of Insanity (NGRI) and Guilty But Mentally Ill (GBMI). At first glance, these pleas seem beneficial. Defendants who lack the moral or cognitive capacity to behave rationally should not be—and are not—held responsible for their actions.

Yet, we rarely observe NGRI / GBMI plea bargains. Why is this the case? Are there statutory or constitutional barriers to such plea bargains? If not, should more defendants enter into them? There has been an abundance of scholarship surrounding both plea bargaining and the insanity defense, but no scholar has fully explored their interaction and what happens when a defendant pleads NGRI / GBMI through a plea bargain. This Comment seeks to bridge this gap.

This Comment argues that structural and functional limits cause the infrequency of NGRI / GBMI plea bargains. Despite the value of mental health treatment, the possibility of indefinite commitment can deter insane defendants who do not want a permanent loss of liberty. Therefore, reforms to the system must be made before more defendants should enter into these pleas. Specifically, there are few constitutional barriers to entering into NGRI / GBMI plea bargains, and states are free to codify their insanity defenses. Thus, practical limits—the risk of lifetime involuntary commitment, defendants’ lack of competency to enter into the plea or stand trial in the first place, and the dearth of institutional support—are the cause. With the current system, including ineffective mental health hospitals and a lack of protections for defendants, most defendants should not agree to these pleas. NGRI / GBMI plea bargains implicate liberty risks, and defendants should be wary of the possibility of permanently bargaining away their freedom. However, if reforms to the system are made, for some defendants, NGRI / GBMI pleas may be a good idea to help the defendant get necessary treatment. Improving mental health hospitals are the first step, but more needs to be done to protect the defendant’s constitutional rights and interests. This Comment ends with some possible reform proposals, including ending sentence bargains for NGRI / GBMI pleas, appointing guardians ad litem for defendants, implementing time-limited commitment or outpatient therapy, and amending the process for release decisions.

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