Important Upcoming Legislation – Why FFIMI Supports It and What Sets it Apart

Massachusetts State Senator Cindy F. Friedman has introduced Bill No. S.1034, which can be viewed at https://malegislature.gov/Bills/192/S1034. Although as many as 20 States have enacted what are known as Guilty But Mentally Ill (GBMI) statutes, the newly proposed Massachusetts bill differs significantly from those other GBMI statutes in a few critical ways. Those differences lead us to voice our full support for its passage. But first, to understand the difference we must understand what is called the insanity defense and the history and purposes of the other GBMI statutes.

WHAT IS THE INSANITY DEFENSE?

The insanity defense is one of a number of instances of the criminal law’s historic requirement that before an individual may be punished for a wrongful act, he must have consciously elected to do that wrong. It is the principle of moral blameworthiness – that one must consciously choose to do evil – before punishment is appropriate. The insanity defense essentially recognizes the potential for a lack of moral blameworthiness due to mental illness, and thus allows for a verdict of Not Guilty by Reason of Insanity (NGRI). A verdict of NGRI acknowledges that individuals suffering from serious mental illness may end up committing violent and unthinkable acts without the ability, at the time of the offense, to understand or appreciate the wrongfulness of the act, and therefore would be considered not guilty.

Without question, the insanity defense has been challenging for society to accept. There is the general sentiment that the NGRI verdict allows violent offenders to avoid being punished and held accountable for their wrongful acts. Then there are concerns regarding how to keep society safe from the potential of repeat offenses by an NGRI acquittee if released before they are ready to function safely in the community. But, it should be understood that the result of an NGRI verdict does not mean the acquittee would be immediately released to the community; instead, he/she would be required to undergo treatment and held until such a time as their condition has stabilized and their “sanity” has been restored. In fact, it has been shown that NGRI aquittees are likely to spend as much or more time confined in a psychiatric institution as they would have if convicted and sentenced to prison for the same crime.

THE ESTABLISHMENT OF GUILTY BUT MENTALLY ILL (GBMI)

Due to the challenges related to the NGRI verdict, Michigan established an additional verdict (the GBMI verdict) in 1975, which could be used by courts and juries to use in deciding cases in which the defendant invoked the insanity defense. In these cases, the defendant could now be found Innocent, NGRI, GBMI, or Guilty. The sentencing for a GBMI verdict is the same as that for a “Guilty” verdict, but the verdict recognizes that the individual’s mental illness contributed to their commission of a crime, and the state would then be required to provide mental health treatment while the individual was incarcerated (at a state penitentiary). If/when the individual becomes stable, they would continue to serve out the remainder of their sentence in the state penal system. It should be noted that all other states’ GBMI statutes are very similar to Michigan’s.

The purpose of the GBMI Verdict is unquestionably to limit the number of defendants being found NGRI, increasing the numbers of those found guilty – albeit with mental illness – and who are subject to imprisonment. The GBMI also holds out the promise of psychiatric therapy and treatment, in a prison setting. However, legal experts and mental health advocates have opposed the GBMI verdict for a few key reasons. Below are some common criticisms with GBMI laws and how Senator Friedman’s bill is radically different:

IF MA BILL #S1034 BECOMES LAW:

• Each individual’s ability to present a successful insanity defense is preserved, with the hope of being able to convince a jury or court that a verdict of NGRI is most appropriate.

• The proposed bill also provides clear direction that such individuals who are found by the court to be suffering from a serious mental illness serve the entirety of their sentence at a mental health treatment facility rather than prison.

• The approach proposed in this bill is, fair, protects the legal rights of the defendant, and seeks to assure compassionate and appropriate psychiatric treatment and care for individuals with a mental illness who have been found guilty by a jury or court.

VERY IMPORTANT TO NOTE

• Although this bill goes under the name of Guilty But with a Mental Illness, and could carry with it the acronym GBMI, it is essentially different than the many GBMI laws in those few critical ways previously outlined.

• We believe that Bill S1034 would benefit if given a different title so that it does not get cast into the same category as the other GBMI laws. However, regardless of the title, we support and encourage others to support the passage of Senate Bill S1034.

Much of the information contained in this article was found in the following sources:

Linda C. Fentiman, entitled “Guilty But Mentally Ill”: The Real Verdict is Guilty, published by the Elizabeth Haub School of Law at Pace University, 1985; Guilty But Mentally Ill”: The Real Verdict is Guilty (pace.edu) Perlin, Michael L., “The Insanity Defense: Nine Myths That Will Not Go Away” (2017). Articles & Chapters. 1128. https://digitalcommons.nyls.edu/fac_articles_chapters/1128