Rearranging Deck Chairs on the Titanic: Why the Incarceration of Individuals with Serious Mental Illness Violates Public Health, Ethical, and Constitutional Principles and Therefore Cannot Be Made Right by Piecemeal Changes to the Insanity Defense




Bard, Jennifer S.

Journal Title

Journal ISSN

Volume Title


Houston Journal of Health Law and Policy


By citing to recent data showing the substantial number of seriously mentally ill people incarcerated for determinate sentences, Professor Bard considers how historical and contemporary approaches to the insanity defense are inadequate to address the disproportionate presence of people with mental illness in America's jails and prisons. She also reviews the literature of the public's perception of the insanity defense and shows how the public's concerns about the accuracy of diagnosis and the prospects for treatment have resulted in an increased narrowing of the category of the mentally ill who are found not responsible for their conduct. She concludes by arguing that unless government funds and mandates public health care measures such as universal access to health care, and unless government furthers legislative efforts to craft a better insanity defense, then we in the United States could rightly be charged with crimes against humanity.



Incarceration of mentally ill, Insanity defense


5 Hous. J. Health L. & Pol'y 1