Conditional Release Programs

Conditional release programs for persons acquitted by reason of insanity (not guilty by reason of insanity or NGRI) are designed to maximize public safety while meeting the courts' mandate that some individual liberties be protected. These programs developed as a result of the state and federal court decisions in the 1960s, which required that this population be provided with commitment procedures similar to civil commitment. Prior to these decisions, persons found NGRI were given an automatic, indefinite “life sentence” to maximum-security state psychiatric hospitals for crimes ranging from shoplifting to murder. Under the new laws, persons committed as NGRI had to meet the commitment requirements of civil patients—that is, mental illness and dangerousness. Their continued commitment had to be periodically reviewed, and if they no longer met the commitment standards, they were to be released. Concerned with releasing what were believed to be “dangerous” offenders with mental illness into the community, states created a new category of posthospitalization supervision—conditional release. Research suggests that both goals were met in that insanity acquittees no longer languished in hospitals with no hope of being released and those who remained dangerous and mentally ill remained in a secure facility.

The other major watershed event that affected the insanity defense, especially release procedures, was the NGRI acquittal of John Hinckley from the charge of attempting to assassinate President Ronald Reagan in 1981. Following Hinckley's 1982 acquittal, the most common type of legal change in this area of law was in postacquittal procedures. Most states responded by providing shared responsibility between the trial court and the clinicians responsible for the day-to-day inpatient treatment of the committed population. Until then, hospital clinicians or the county court where the hospital was located had made the release decisions. Hinckley's acquittal further decreased the already declining popularity of the insanity defense among the public. He eventually received a number of 1-day conditional releases under the supervision of his parents in 2003, more than 22 years after his actions. His release was widely opposed by the victims' families, the Justice Department, and many others.

Conditional release programs are often referred to as “mental health parole or probation,” but they significantly differ from traditional criminal justice aftercare supervision. The major differences between the two types of programs are in the length of the supervision period, the due process requirements for revocation, and the agency responsible for supervision. In most states, conditional release can be extended for any number of reasons, including clinical concerns, such as medication compliance; safety concerns; and lack of adequate community placement. For most parolees or probationers, their supervision time is finite. A few states limit the duration of conditional release to the maximum sentence that would have been given by the court had the defendant been convicted, reducing the utility of conditional release for less serious offenders. More often, conditional release is a relatively unrestrained and extensive period of community supervision and consequently makes the insanity defense a lesser plea and outcome.

Revocation of conditional release is less difficult than in the criminal justice system. Few states require a formal due process hearing to revoke conditional release, unlike criminal justice postrelease programs. Typically, conditional release can be revoked if the individual simply violates any term of the release. While some states have in place more procedural safeguards, they are still minimal compared with other aftercare programs. A final difference that highlights the special circumstances of the population acquitted NGRI is in the agency responsible for supervision. These programs often bisect the mental health and criminal justice systems due to the legal status of persons acquitted NGRI. Because an insanity plea is an affirmative defense, defendants admit to factual guilt but are legally not responsible due to lack of mens rea. Consequently, while their treatment and confinement are provided within the mental health system across all states, their release might be controlled to some [Page 133]extent by the criminal justice system, in particular the county's criminal court of commitment. This dual responsibility can cause professional conflict and confusion, making the release of insanity acquittees a complex legal and procedural process. None of this confusion surrounds parole or probation.

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