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57 Am. Crim. L. Rev. 391 (2020)
Not Guilty, Yet Continuously Confined: Reforming the Insanity Defense

handle is hein.journals/amcrimlr57 and id is 404 raw text is: NOTE NOT GUILTY, YET CONTINUOUSLY CONFINED: REFORMING THE INSANITY DEFENSE Bailey Wendzel* I. INTRODUCTION The insanity defense has been the subject of debate as much in academia as in popular culture. Recently, the defense captured public attention when James Holmes, the man found guilty of the Aurora theater shooting, asserted the defense at trial,' igniting popular debate about mental illness and criminal culpability.2 The debate centers on how we should punish individuals who have committed a crime, yet may not be criminally responsible on account of a mental health condition.3 Though very few individuals are found not guilty by reason of insanity (NGRI),4 the insanity defense has long been caught in a contentious balancing act; one that involves balancing individual liberty, public safety, and our belief that individuals with mental health conditions deserve treatment.5 For some time, public safety has been the predominant justification for detaining individuals indeterminately until they recover.6 However, the pendulum has swung so far in favor of protecting public safety that individual liberty and the right to access the least restrictive treatment have become secondary aims when * Bailey Wendzel received her J.D. from Georgetown University Law Center and her Bachelor's in Psychology from Brown University. She currently works as an Associate in a healthcare law firm in Washington D.C. Prior to her legal career, Ms. Wendzel was the Program Director of the San Francisco branch of the National Alliance on Mental Illness (NAMI). At NAMI, she directed and managed evidence-based education programs supporting individuals with mental health conditions and their families, and managed city contracts with the San Francisco Department of Public Health's Behavioral Health Services. © 2020, Bailey Wendzel. 1. See generally Ana Cabrera et al., James Holmes Found Guilty of Murder in Colorado Theater Shooting, CNN (Jul. 17, 2015), https://www.cnn.com/2015/07/16/us/james-holmes-trial-colorado-movie-theater-shooting- verdict/index.html (describing the trial of James Holmes, where Defendant was found guilty of killing twelve people, after opening fire in a crowded movie theater in Aurora, Colorado). 2. See generally Meghan Keneally, Aurora Shooting Trial: James Holmes 'Not Faking' Insanity Plea, Defense Tells Jury, ABC NEWS (Apr. 27, 2015), https://abcnews.go.com/US/aurora-shooting-trial-james- holmes-faking-insanity-plea/story?id=30619051. 3. See generally Ken Levy, Dangerous Psychopaths: Criminally Responsible but Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention, 48 SAN DIEGO L. REv. 1299 (2011). 4. ROBERT WEINSTOCK & JENNIFER PIEL, DSM-5 AND NOT GUILTY BY REASON OF INSANITY AND DIMINISHED MENS REA DEFENSES, IN DSM-5 AND THE LAW: CHANGES AND CHALLENGES 130 (Oxford Univ. Press, 2015). 5. See generally Colin Mickle, Safety or Freedom: Permissiveness vs. Paternalism in Involuntary Commitment Law, 36 LAW & PSYCHOL. REv. 297,306 (2012). 6. Id. at 302-03. 391

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