The criminal court process is faced with determining if it should abolish the insanity plea. Those in favor of abolishing the insanity plea claim that psychiatrists have hijacked the criminal justice system. Furthermore, such opponents of the insanity plea claim that the criminal court process has been corrupted by the ease with which an insanity plea can be made. They claim that the ease with which an insanity plea can be filed means that the criminal court process will soon cease to recognize degrees present in criminality of different acts.
Opponents of the insanity plea claim that it violates the original process under which juries operated. The early English legal system, specifically that in practice before 1800, recognized only two jury findings: guilty and not guilty. A not guilty verdict meant simply that the prosecution had failed to prove its case. A guilty verdict meant that the jury had determined that the defendant had committed the crime. A guilty finding, however, could recommend a pardon if the jury believed that the defendant was insane.
The essential aspect of the criminal court process of this time period for opponents of the modern day insanity plea which uses the explanation of insanity to plead not guilty, is that the defendant was found guilty of having committed the crime before any leniency based on the insanity of the perpetrator affected the judgment of the court.
After 1800 the criminal court process became concerned with the mental status of defendant. This growing concern has led away from "guilty but insane" pleas to the recent "not guilty by reason of insanity" plea. Proponents of judicial conservatism believe that the criminal court process should return to the more narrow construction of insanity.
Opponents to the abolition of the insanity plea contend that attempting to remove the possibility of an insanity plea from the criminal court process would not only be difficult, it would likely also be met with opposition on grounds of being unconstitutional. The argument that it would be unconstitutional arises from the fact that most laws require the defendant have the mens rea, or element of motive, for the action to be considered criminal.
As it currently exists, the criminal court process contains several different levels of culpability based on mental state. The elimination of the insanity plea from the criminal court process would require the complete reevaluation of the criminal court process, as well as the civil court system, which also allows for different levels of liability based on the mental status of the litigants.