RD31 - SJR 381 - Not Guilty by Reason of Insanity

Executive Summary:
During the 2001 Virginia General Assembly Session, Senate Joint Resolution 381 was introduced directing the Virginia State Crime Commission to study the issues and processes involved with the plea of not guilty by reason of insanity by a person charged with a misdemeanor. SJ 381 (2001) requested a study. The bill was left in the Senate Rules Committee with the understanding that the Crime Commission would conduct the study. (See Attachment 1) This request was prompted by concerns regarding the length of time misdemeanants acquitted by reason of insanity may be confined in an institution. Accordingly, the focus of the study concentrates on Virginia’s statutory provisions pertaining to the disposition of misdemeanants acquitted by reason of insanity with the objective of rectifying any flaws and improving the statutory scheme.

The Virginia Code allows for individuals, including those who have committed only misdemeanors, to be confined in a state hospital indefinitely. Although the Virginia Code provides the insanity acquittee with regular hearings, the standards used and the lack of a burden placed on the government to demonstrate why confinement must continue, may render the hearings nothing more than ineffective formalities. As a result, insanity acquittees often find themselves confined for periods of time far in excess of the amount of time that would have been served had the defendant simply pleaded guilty. This result is particularly harsh for individuals acquitted of non-violent misdemeanors. Misdemeanants acquitted by reason of insanity have spent ten years or more in state hospitals for the offenses of spitting, urinating in public, or cursing. While confinement for some of these individuals may be warranted and necessary, for others, less restrictive alternatives would serve their best interests. Furthermore, these extended lengths of confinement are an expense to the state.

A statutory scheme that is excessively hesitant to release misdemeanants from confinement has unintended detrimental consequences to our criminal justice system. As it stands, mentally ill misdemeanants are better served pleading guilty rather than exercising their right to use their insanity as a defense. Some lawyers even suggest it would constitute malpractice to advise a mentally ill client charged with a misdemeanor to plead the defense. Therefore, the threat of indefinite confinement has effectively eliminated the use of the insanity defense for misdemeanants, resulting in the removal of this constitutionally protected defense from Virginia practice (although it does remain in the Virginia Code). Additionally, of paramount concern from a public safety standpoint, is the fact that mentally ill misdemeanants who are dissuaded from using the not guilty by reason of insanity defense will not be subject to evaluation and necessary treatment. Instead, they will plead guilty, get short jail terms, and be released without being evaluated for dangerousness. As a result, Virginia will have missed its opportunity to confine and treat individuals who will pose a serious threat to public safety.

Staff Findings

The Crime Commission found:

Virginia’s statutory scheme is constitutional and provides periodic opportunities for release. However, these opportunities are ineffective and seem to exist only in theory, not in practice.

While a misdemeanant who pleads guilty to the offense will spend no more, and probably much less, than one year in prison, the same misdemeanant who pleads not guilty by reason of insanity will be subject to indefinite incarceration pursuant to the disposition provisions for persons acquitted by reason of insanity.

Many mentally ill misdemeanants acquitted by reason of insanity languish in confinement for extended periods of time. For example, one individual, charged with breaking a window, has remained incarcerated in Central State for thirteen years.

Knowledge of the possibility of this indefinite confinement prompts experienced defense attorneys to advise their mentally ill clients charged with misdemeanors to plead guilty as opposed to not guilty by reason of insanity. As a result, the insanity defense for misdemeanants has been effectively eliminated.

The effective elimination of the insanity defense for misdemeanants may have a detrimental impact on public safety. Dissuading mentally ill misdemeanants from pleading the defense will prevent those individuals from receiving the treatment they need. Instead, they will simply serve short prison sentences before being released back into society.

Confinement in the custody of the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services (DMHMRSAS) of misdemeanants who should be considered for less restrictive alternatives is at the expense of the state.

A statutory scheme that limits the amount of time a person remains in the custody of the Commissioner after being acquitted of a misdemeanor by reason of insanity to the one-year maximum sentence allowed by law for misdemeanors can coexist with the government’s interest in protecting society from dangerous individuals.


Based on these findings, Crime Commission staff has concluded that misdemeanants acquitted by reason of insanity should be subjected to less restrictive disposition standards than their felonious counterparts. Such a distinction is permissible and constitutes the practice of several states. Accordingly, Crime Commission staff recommended that misdemeanants acquitted by reason of insanity should remain subject to the disposition provisions for insanity acquittees for a period of time not to exceed one year. Continued confinement beyond one year should require the initiation of civil commitment proceedings.