criminal law

INSANITY DEFENSE: LOCKED UP WITHOUT “PROOF BEYOND REASONABLE DOUBT” with no release date– a true deprivation of liberty


Author: Leslie Ann Ferderigos J.D.

INSANITY DEFENSE? REALLY? Lawyers, is the Insanity defense, really the best option for your client? If a defendant’s insanity defense relieves them from conviction, what happens next? Did you really get liberty for your client? Post-acquittal commitment to mental institutions can be a far greater deprivation of liberty then serving a fixed term sentence. The confinement of an insanity acquitee in a mental hospital, based soley on the trial court’s finding of insanity by a preponderance of the evidence, may law until he has regained sanity or I no longer dangerous. Thus, the defendant has now been able to be locked up indefinitely without the protection of a “proof beyond reasonable doubt standard”. Additionally, the defendant no longer gets to make the argument that his Due Process rights have been violated. This type of confinement is not considered to deny due process even if the result is confinement for a period longer than the maximum period of incarceration carried by his offense. Nor is the insanity acquitee entitled, at the end of the statutory maximum incarceration period, to a civil commitment hearing at which proof of his insanity would have to be established by clear and convincing evidence. [Jones v. United States, 463 U.S. 354 (1983)

STATE SAYS: YES,WE CAN LOCK YOU UP, HERE IS WHY! Underlying the insanity defense is the assumption that those who commit criminal acts while insane should not be held criminally responsible for their behavior. To the extent that mental impairment is, in some sense, “responsible” for an individual’s proscribed behavior, treatment, and not punishment, is acknowledged to be society’s appropriate response. Guilty, but mentally ill convicts have a “Right to Treat” under the Constitution. A long line of cases has held that the fourteenth amendment mandates treatment of civilly committed mental patients, sexual psychopaths and juvenile offenders, although the Supreme Court has not expressly confirmed their reasoning.[1] Thus, the idea behind taking someone’s liberty away lies on civil commitment as treatment rather then punishment.

In Donaldson v. O’Connor[2], the Fifth Circuit held that civil commitment of persons found mentally ill and dangerous involves a “massive curtailment of liberty,” which triggers strict due process analysis. The court concluded that civil commitment satisfies due process only if treatment accompanies confinement.[3] It identified two important state interests underlying civil commitment: protection of society and rehabilitation of the mentally ill. The court concluded that the state may legitimately confine an individual pursuant to itsparenspatriae and police powers if it provides treatment. “To deprive any citizen of his or her liberty upon the altruistic theory that the confinement is for humane therapeutic reasons and then fail to provide adequate treatment violates the very fundamentals of due process.”[4]‘ A majority of the circuits have relied upon or extended the Donaldson holding.’

Lawyers, make sure your client knows that getting off on the insanity defense, doesn’t necessarily buy your client freedom. In fact, your client lose their liberty forever.

This blog is meant to be a short writing to introduce an issue within criminal law. I encourage you to expand more into this area for a thorough understanding.












[2] 493 F.2d 507 (5th Cir. 1974), afdon other grounds, 422 U.S. 563 (1975).

[3] Id. at 520 (quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972) (civil confinement involves “massive curtailment of liberty”)); see also Addington v. Texas, 441 U.S. 418 (1979) (massive curtailment of liberty implicates due process).

[4] Donaldson, 493 F.2d at 520.



Should a “CONSTITUTIONALIST” really be calling themselves a “10th Amendmentist”?

Author: Leslie Ann Ferderigos J.D.

HISTORICAL RECAP: From everything I have learned in my education the Constitution came about after the Articles of Confederation in an attempt to bring power back into a central government (because the states were operating too much like separate countries).Yet, I keep hearing people say they are Constitutionalist because they don’t want a strong central government. So my question is if the constitution was created to bring power back to a central government, then why are “constitutionalist” against a strong central government?


The truth is that there are many writings that opine on the proper balance between a stronger federal government and a loose confederation of state governments. This is an excellent post that points out why it is important to understand the principles and not just the rhetoric. Leslie does make a good point. Then, just when you say, “good point”, you debase the whole point by erroneously reducing this to misguided partisanship.

-Lawyer, Mark Longwell


I would suggest reading (if you haven’t) the Federalist Papers for a clearly set out debate and some of the goals of the original American government structure. Although leaning heavily towards ratification of the Constitution, it explores the checks and balances and concerns of the founders. They also offer some critique of why the Articles of Confederation were insufficient and needed some central concentration of power. To your original question, modern “constitutionalist” seem to be like the term and use of modern “liberalism.” A modification from the original term in political philosophy by political commentators. Nothing invalid about either use of the terms, just historically inaccurate. In my thoughts, the modern constitutionalist might be better termed a “Tenth Amendmentist,” (totally made up term) because of the belief in enumerated powers and a belief that the modern federal government has used technicalities to interfere with traditional roles of the States. At this point, I think it is so pervasive that Congress rarely even worries about the technicalities because the American society has gotten so inured to it.

-history guru


So the next time someone calls themselves a constitutionalist, ask them if they know why the constitution was created?