Table 1

Evolution of the Arizona Guilty Except Insane Defense

Trial PhaseBefore 19931993: Addition of PSRB2007: Addition of Corrections
    TestMental disease or defect resulted in not knowing the nature or quality of the act or that the act was wrongMental disease or defect of such severity he did not know criminal act was wrong; exclusions for impulsive acts and antisocial behaviors
    EvidenceClear and convincing
    Burden of proofDefendant
    VerdictNot responsible for criminal conduct by reason of insanityGuilty except insane
    JurisdictionCourtNot serious: Court
Serious: PSRB*
Not serious: Court (until release hearing)
Serious: Incarceration in the Department of Corrections under the jurisdiction of PSRB
    Possible length of jurisdictionWhen criteria for discharge is met, the person is no longer mentally ill or dangerousNot serious: Up to 75 days (discharge or civil commitment may follow)
Serious: Length of presumptive sentence
    Initial commitmentArizona State Hospital
    Length of initial evaluation periodCourt hearing within 50 days; subsequent hearings no sooner than 6 months; for a serious offense, cannot be released for at least 120 days
A release hearing may be held whenever the secure mental health facility petitions the court
Not serious: Up to 75 days
Serious: PSRB hearing 120 days after initial commitment; no sooner than 6 months thereafter
    Not seriousCriteria same for Serious or Not Serious (see below)Continued hospitalization or civil commitment for persistent mental disease or defect
Discharge when a defendant proves by clear and convincing evidence he no longer suffers from mental disease or defect
        Continued hospitalizationSuffering from mental disease/defect or dangerPSRB finds applicant still suffers from a mental disease or defect and is dangerous
        Conditional releaseGranted by court based on same criteria for conditional release used in civil commitmentPSRB finds applicant still suffers from mental disease or defect but is not dangerous (requires a treatment plan to be in place)
        Unconditional release#Not applicableApplicant proves to PSRB by clear and convincing evidence “he no longer suffers from a mental disease or defect” and is not dangerous
        DischargeApplicant proves he is no longer suffering from mental disease or defect and no longer dangerousNot applicable: There is no mechanism for a person adjudicated guilty except insane to be discharged from insanity jurisdiction prior to the end of the presumptive sentence
        Transfer to correctionsNot applicablePSRB finds person no longer needs treatment, but “is dangerous or has a propensity to reoffend”
  • Arizona Guilty Except Insane Defense (A.R.S. 13-502, 13-3994). PSRB, Psychiatric Security Review Board.

  • * Treatment facility may petition the court to hold a hearing at any time.

  • Discharge: no longer under insanity jurisdiction.

  • Serious Offense: Case involves death or threat of death or serious physical injury to another person determined by trial court.

  • # Unconditional Release: Termed “release” in the statute. Person remains under jurisdiction of the PSRB, but with less stringent supervision and presumably no requirement of a supervised treatment plan.