Punishment or treatment? A critical assessment of disposition options for mentally ill offenders in Israel

Helene S. Wallach

Research output: Contribution to journalArticlepeer-review


Punishments meted out through the legal process are intended to prevent, deter, or punish the criminal committing the crime. However, punishing individuals who do not understand the nature of their acts, or that such acts are illegal, is pointless. Punishing such people will not prevent or deter them from committing such acts in the future. Commission of the crime proves that we, society at large, have failed to protect its sick members. We therefore need to come to their aid today. This is the reason for the "insanity defense." Once a member of society is regarded as not guilty by reason of insanity (NGRI), a treatment orientation replaces the punishment orientation. In Israel, however, due to the absence of a law requiring examination of the evidence against the accused, as well as the indeterminate period the accused can spend under mandatory confinement following an insanity defense, it appears that in many cases "sick" individuals are punished far more severely than they would have been had they stood trial. This occurs since once an insanity plea is entered, the legal procedure stops, and hence many innocent people spend years under mandatory confinement. Moreover, it is difficult to determine the necessary length of confinement. Consequently, people found NGRI may spend a longer period in a mental institution than they would have spent in jail had they been convicted. Therefore, three necessary amendments are proposed: 1) to change the law allowing examination of evidence to one requiring that the police and/or the courts conduct a mini-trial, or an examination of the evidence, and acquit the accused if they are found not guilty; 2) to change the law regarding examination of the evidence from one requiring proof of innocence beyond reasonable doubt, to one that assumes innocence unless proven guilty beyond reasonable doubt; and 3) to determine a defined, short period of time for mandatory confinement, after which the individual is released or, if still ill, and/or posing a danger to him/herself or others, is transferred to the civil confinement route. These three amendments will enable us to maintain the insanity defense without the unnecessary difficulties it currently poses.

Original languageEnglish
Pages (from-to)33-44
Number of pages12
JournalAmerican Journal of Forensic Psychiatry
Issue number4
StatePublished - 2006

ASJC Scopus subject areas

  • Pathology and Forensic Medicine
  • Psychiatry and Mental health


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