It is estimated that over 10,000 people who have never been convicted of a crime are incarcerated in the United States. The states, under various statutes, confine individuals to mental health facilities who are found not guilty by reason of insanity or who are found mentally incompetent to stand trial. While these individuals are not considered “incarcerated”, for all intents and purposes, they are. Technically, they are hospitalized—against their will and with no liberty to end their hospitalization.

The New York Times recently profiled a man in his early 40’s who has been confined against his will in a New York State psychiatric facility since he was 20 years old. He was accused of rape—a crime that carries a sentence of 5 to 25 years in prison in the state of New York. But this man was never tried or convicted for the crime. Prior to his trial, doctors diagnosed him as having borderline personality disorder. Without fully understanding the consequences, the diagnosis allowed him to plead “not guilty by reason of insanity.” The court, by accepting this plea, found him legally not responsible for the crime. In New York, this plea allows an indefinite detention in a mental health facility.

Many people are under the false assumption that the “insanity defense” is a get out of jail free card. Quite the contrary. This defense often results in mental health confinement for years far beyond what the sentence for the underlying offense prescribes. Indeed, the United States Supreme Court has even ruled that it does not violate due process to commit a person who is found not guilty by reason of insanity to confinement automatically and indefinitely. (Jones v. United States, 463 U.S. 354 (1983).)

In the Jones case, the defendant was charged with a misdemeanor petty theft, a crime that carried a maximum one-year sentence. Because the defendant was a paranoid schizophrenic, he pleaded not guilty by reason of insanity. The plea was not challenged by the prosecution. He was automatically committed to a mental health facility for a minimum of 50 days. Despite many hearings on his requests for release, the state refused to release him after the doctors opined that he was a danger to himself and others. The Supreme Court reasoned that such commitment is lawful for the protection of society.

Not all states permit a not guilty by reason of insanity plea. While California does permit this plea, it is not easy to come by. Upon such a plea, the California statute requires a trier of fact to first determine if a defendant is guilty of the substantive offense and if so, separately determine if the defendant was sane at the time of the offense. If it is found that the defendant was not sane at the time of the crime, he or she will be found not guilty by reason of insanity. In this state, the insanity defense is not available on the basis of a personality disorder or to those who are made insane by their voluntary use of alcohol or drugs (although there are some exceptions).

If found not guilty by reason of insanity in California, the offender can be confined to a Department of State Hospitals facility as a criminal commitment. The California statute provides that the maximum term of commitment cannot exceed the longest term of imprisonment which could have been imposed had the person been convicted of the crime. In practice, this is not always the case as the state can move the court to extend the individual’s commitment if the state can establish that the person cannot control his or her dangerous behavior. The extension is statutorily limited to two years but the state can renew the motion every two years. Thus, it is possible for the individual to remain committed indefinitely.

Although statistics are hard to come by, records confirm that across the states, individuals who have been confined on a not guilty by reason of insanity plea have an average length of stay between five to seven years and there are many who have been confined to mental facilities for over 15 years. Often a release from confinement, even when the doctors believe the release is warranted, is challenged by the district attorney. This can add more years to the confinement.

In reality, those who have been committed on a not guilty by reason of insanity defense have a far lower recidivism rate than those who have been sentenced to prison. Yet, the stigma and misunderstandings affect even judges, who make the final decision to release an individual from mental health confinement.

The issue of crimes committed by mentally ill individuals has no easy answers. Even though confinement to a psychiatric facility following a plea of not guilty by reason of insanity is not supposed to punishment—after all, the plea legally means the person is not guilty—the truth is that many people in this country have lost their freedom for no other reason than having a mental illness.

Criminal defense attorney William Weinberg is available for a complimentary consultation regarding your criminal matter. You may call him at 949-474-8008 or contact him by email at