Why Illinois Juries Should Be Told the Truth: Consequences Instructions and the Insanity Defense

Introduction

Illinois remains among a small minority of jurisdictions that prohibit juries from hearing what actually happens if they return a verdict of Not Guilty by Reason of Insanity (NGRI). Jurors are instructed to decide only whether the defendant has proven insanity at the time of the offense and are told—explicitly or implicitly—that the consequences of their verdict are not their concern.¹

At the same time, jurors are often presented with an alternative verdict of Guilty but Mentally Ill (GBMI), a disposition that intuitively suggests treatment and accountability. The result is a predictable and troubling dynamic: jurors who believe the defendant was mentally ill and dangerous may reject an insanity verdict out of fear that the defendant will be released without treatment, and instead choose GBMI in the belief that it ensures mental‑health care. In Illinois, that belief is wrong.²

This article argues that Illinois should adopt a “consequences instruction” allowing jurors to be accurately informed that: (1) an NGRI verdict results in commitment to a secure mental‑health facility, not release; and (2) a GBMI verdict results in the same correctional placement and sentence as any other guilty verdict, with no enforceable right to treatment. Without this information, jurors are deciding the insanity question in a factual vacuum that predictably distorts verdicts.

The reality of post‑verdict outcomes in Illinois

Not Guilty by Reason of Insanity (NGRI)

In Illinois, an NGRI verdict does not mean the defendant “walks free.” Instead, the court must conduct post‑verdict commitment proceedings under the Mental Health and Developmental Disabilities Code. If the defendant is found to be in need of inpatient mental‑health treatment and poses a danger, the court orders commitment to the Department of Human Services in a secure facility. Continued confinement, conditional release, and discharge all require judicial oversight based on clinical evaluations.³

In practical terms, NGRI is the only verdict that guarantees treatment and provides a mechanism for eventual release based on recovery rather than the expiration of a fixed prison sentence.

Guilty but Mentally Ill (GBMI)

By contrast, a defendant found GBMI is sentenced in the same manner as any other guilty defendant for the same offense. The statute does not mandate treatment, does not alter the length of sentence, and does not require placement in a therapeutic facility. Any mental‑health services provided in the Department of Corrections are discretionary and resource‑dependent, not entitlement‑based.⁴

Functionally, then, GBMI is indistinguishable from a guilty verdict for purposes of incarceration and release dates.

The juror misperception problem

Empirical studies and decades of courtroom experience show that many jurors believe:

• An insanity verdict means the defendant will be released immediately or avoid meaningful accountability.
• A GBMI verdict ensures treatment while still imposing punishment.

These beliefs are understandable, but incorrect under Illinois law. When jurors are denied accurate information about consequences, they may compromise their factual findings about insanity to reach what they perceive to be a safer or more socially responsible outcome. This undermines the integrity of the insanity determination itself.⁵

For practicing lawyers, this problem is not theoretical. It plays out in voir dire, in jury questions, and in post‑trial interviews. Jurors routinely ask what will happen if they find someone insane. Current law requires courts to deflect those questions, reinforcing the very uncertainty that drives compromise verdicts.⁶

The insanity verdict is not merely a moral judgment; it is a legal determination tied to constitutional principles of culpability. Allowing verdicts to be driven by fear of consequences rather than by application of the legal standard erodes those principles.

Illinois doctrine: Consequences are for the court, not the jury

Illinois courts have repeatedly held that the jury’s role is limited to determining whether the defendant has proven insanity at the time of the offense and that post‑verdict disposition is solely for the court. Therefore, trial courts routinely refuse defense requests to instruct juries on the consequences of NGRI or GBMI verdicts.⁷

The core doctrinal themes are consistent across decisions:

• Informing juries about post‑verdict consequences risks diverting them from their fact‑finding function.
• Consequences are characterized as sentencing matters, traditionally reserved for judges.⁸
• Jurors are presumed to follow instructions to disregard punishment in reaching their verdicts.⁹

Illinois appellate courts have specifically upheld denials of defense‑requested consequences instructions in insanity cases, reasoning that such instructions would improperly inject sentencing considerations into deliberations.¹⁰ In several cases, courts acknowledged juror curiosity about post‑verdict disposition but nevertheless concluded that any corrective instruction would be improper.¹¹

Notably, these decisions largely predate modern scholarship on juror decision‑making in insanity cases and the now well‑documented gap between public perception and actual post‑verdict procedures.

Brief legislative history: Why Illinois adopted GBMI

Illinois adopted the Guilty but Mentally Ill verdict as part of a national wave of legislative responses to public concern about the insanity defense in the late 1970s and early 1980s, following several high‑profile cases that generated fear that defendants were avoiding accountability through insanity acquittals.¹² The GBMI verdict was promoted as a middle ground—allowing juries to recognize mental illness while still imposing criminal responsibility and incarceration.¹³

Legislative debates emphasized public safety and punishment, not treatment outcomes. Proponents argued that GBMI would reassure juries and the public that defendants would be confined in prison rather than released to hospitals perceived as less secure.¹⁴ What received far less attention was whether the Department of Corrections was equipped to deliver sustained psychiatric care, or whether GBMI defendants would in fact receive treatment different from that provided to any other incarcerated person.

Over time, research and experience have shown that GBMI has not functioned as a meaningful treatment‑oriented alternative. Reflecting this reality, some Illinois practitioners and academics have long referred to GBMI—somewhat wryly—as “guilty with pimples,” a shorthand attributed in local teaching and CLE settings to Professor Richard Kling to emphasize that the verdict changes the label but not the sentence or treatment pathway.¹⁵ Instead, it has operated primarily as a verdict label that reassures juries without materially changing post‑sentence placement or services.¹⁶ In this sense, the very political compromise that led to adoption of GBMI also magnifies the need for accurate consequences instructions: jurors are encouraged to choose between verdicts without being told that one of those verdicts does not, in reality, accomplish the therapeutic goals they may assume it does.

The national landscape: Most states permit consequences instructions

Illinois is increasingly isolated in its approach. A substantial majority of jurisdictions now permit, and in some cases require, juries to be informed of the basic consequences of an insanity verdict. These states recognize that:

• Jurors will speculate about consequences regardless of instructions not to do so.
• Providing accurate, neutral information reduces reliance on myths and stereotypes.
• Transparency promotes confidence in the justice system and the legitimacy of verdicts.¹⁷

Approaches vary by jurisdiction. Some states mandate a standardized instruction explaining that an insanity verdict results in commitment to a mental‑health facility until the defendant is no longer dangerous. Others permit counsel to address consequences in closing argument, subject to court supervision. A smaller group still prohibits any reference to post‑verdict disposition.

Federal courts have likewise recognized that, while not constitutionally required, limited explanation of post‑verdict procedures may be appropriate where juror confusion is likely to affect deliberations.¹⁸ Notably, however, there is no GBMI option in federal criminal law.

State‑by‑state overview of consequences instructions (general survey)

This chart reflects general approaches. Practitioners should consult current statutes and pattern instructions in each jurisdiction.

Jurisdictions that permit or require consequences instructions

• Arizona—Statutory instruction required regarding commitment following NGRI.¹⁹
• California—Jury may be instructed that NGRI results in commitment to a state hospital.²⁰
• Colorado—Mandatory instruction on commitment following NGRI.²¹
• Connecticut—Statute requires instruction on post‑verdict commitment.²²
• Florida—Standard jury instruction explains commitment procedures after NGRI.²³
• Georgia—Statutory instruction permitted explaining commitment after NGRI.²⁴
• Indiana—Jury informed that NGRI results in commitment proceedings.²⁵
• Kentucky—Instruction required explaining hospitalization and court supervision.²⁶
• Maryland—Jury instructed that defendant will be committed if found NGRI.²⁷
• Massachusetts—Consequences instruction required by statute and case law.²⁸
• Michigan—Mandatory instruction regarding commitment following NGRI.²⁹
• New Jersey—Jury informed that defendant will be committed to a mental‑health facility.³⁰
• New York—CPL requires instruction on post‑verdict commitment procedures.³¹
• North Carolina—Pattern instruction explains commitment after NGRI.³²
• Ohio—Statutory instruction regarding hospitalization and court review.³³
• Pennsylvania—Jury instructed on mandatory commitment following insanity verdict.³⁴
• Tennessee—Pattern instructions permit explanation of commitment consequences.³⁵
• Texas—Jury must be informed of commitment and supervision following NGRI.³⁶
• Virginia—Statutory instruction required regarding commitment after NGRI.³⁷
• Washington—Jury informed that NGRI leads to commitment, not release.³⁸

Jurisdictions that generally prohibit consequences instructions

• Illinois³⁹
• Iowa⁴⁰
• Kansas⁴¹
• Missouri⁴²
• Nebraska⁴³
• South Dakota⁴⁴

(Some of these states permit limited references in exceptional circumstances or by stipulation.)

Why consequences instructions do not undermine the jury’s role

Policy bodies concerned with the intersection of criminal justice and mental health have also recognized that juror ignorance of post‑verdict consequences distorts decision‑making. The American Bar Association’s Criminal Justice Mental Health Standards recommend that juries be informed of the dispositional consequences of an insanity verdict precisely to reduce reliance on speculation, fear and popular myths about release and lack of supervision. ABA Crim. Just. Mental Health Standards § 7‑6.3 (1989).

The ABA standards reason that jurors inevitably consider what will happen to the defendant, and that withholding accurate information does not prevent such consideration—it merely ensures that it is based on incorrect assumptions. Providing neutral, accurate consequences instructions is therefore viewed as enhancing, rather than undermining, the jury’s ability to apply the legal standard for insanity as written.

The traditional objection is that jurors should not consider punishment or disposition. But a consequences instruction does not ask jurors to choose a sentence; it prevents factual determinations from being distorted by false assumptions.

Jurors already bring beliefs about consequences into the jury room. Silence does not prevent that—it merely ensures that speculation fills the gap. A narrowly tailored instruction can:

• Correct common misconceptions.
• Preserve the jury’s focus on the legal standard for insanity.
• Reduce the risk of compromise verdicts driven by fear rather than evidence.

From a trial‑practice perspective, consequences instructions may also reduce juror frustration and increase engagement with expert testimony by clarifying why the insanity determination has real‑world implications.

Public safety and treatment: The irony of the current system

Ironically, the current framework may undermine both treatment goals and public safety.

Defendants who genuinely meet the legal criteria for insanity may instead be sent to prison under GBMI verdicts, where sustained psychiatric treatment is inconsistent and often inadequate. They may be released at the end of fixed sentences without having received effective treatment, supervision or reintegration planning.

By contrast, NGRI commitment allows courts to condition release on clinical progress and risk assessment. From a public‑safety standpoint, accurate insanity verdicts followed by structured treatment and supervised release may be the more responsible outcome.

A modest proposal for Illinois

Illinois need not adopt a radical reform. A neutral, accurate instruction could simply advise jurors that:

• An NGRI verdict results in further court proceedings to determine whether the defendant will be committed to a secure mental‑health facility for treatment; and
• A GBMI verdict results in the same sentencing process as any other guilty verdict.

Such an instruction would not invite sympathy, advocate for either party, or encourage verdicts based on punishment preferences. It would merely prevent verdicts from being driven by demonstrably false assumptions.

Legislative action would be the most straightforward path, but the Illinois Supreme Court also has authority over pattern instructions and could address the issue through rulemaking or supervisory authority.

Practice tips for preserving the issue in Illinois trial courts

Although current Illinois law disfavors consequences instructions, counsel can and should preserve the issue for appellate review and for potential future changes in doctrine or legislation. Practical steps include:

1. File a written request for a consequences jury instruction. Propose a narrowly worded, neutral instruction explaining that an NGRI verdict results in commitment proceedings and that a GBMI verdict results in ordinary sentencing. Attach the proposed language and cite jurisdictions that permit such instructions to demonstrate feasibility.
2. Move in limine to allow limited reference to consequences. Even if denial is likely, a written motion creates a clear record that the defense sought to correct juror misconceptions rather than to argue punishment.
3. Make an offer of proof. If the court bars any reference to post‑verdict procedures, make a record—outside the presence of the jury—of the specific misconceptions the defense sought to address, including voir dire responses or juror questions that demonstrate confusion about release and treatment.
4. Request curative language when jurors ask questions. When jurors submit notes asking what happens after an insanity verdict, request that the court provide at least minimal clarification that the defendant is not automatically released. Even if denied, the request strengthens the appellate record.⁴⁵
5. Coordinate expert testimony carefully. While experts generally may not testify about legal consequences, they can often describe the clinical need for treatment and the risks of untreated mental illness, helping jurors understand why the insanity determination has real‑world implications without directly addressing disposition.

Preserving these issues serves not only the individual client, but also the broader project of developing a record demonstrating that juror misunderstanding is persistent, predictable and outcome‑relevant.

Conclusion

The insanity defense exists to ensure that criminal punishment is reserved for those who are legally responsible for their conduct. When jurors reject insanity claims based on inaccurate fears about consequences, the legal standard is effectively replaced by speculation and anxiety.

Illinois’s continued refusal to permit consequences instructions places it at odds with the majority of jurisdictions and with modern understanding of juror decision‑making. A narrowly crafted instruction would promote accuracy, transparency and public confidence without intruding on the jury’s fact‑finding role.

If the justice system is committed both to accountability and to humane, evidence‑based responses to serious mental illness, then jurors should not be asked to decide the most difficult questions in criminal law while being kept in the dark about what their verdicts actually mean.

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Kulmeet S. (Bob) Galhotra is the sole proprietor at Galhotra Law, where he focuses his practice on criminal defense, juvenile, mental health and civil rights law. His extensive knowledge of the judicial system is attributed to his nearly three decades of service as an assistant public defender in Cook County, representing the indigent accused in criminal courts. His experience includes representing both children and parents in juvenile proceedings, felony trial work and 17 years as a member of the Homicide Task Force, a special unit in the public defender’s office that exclusively handled homicide and until 2011, capital cases. He was President of the Cook County Public Defenders Association, AFSCME Local 3315, for multiple terms, helping negotiate collective bargaining agreements with Cook County and otherwise representing rank-and-file assistants. His last seven years at the public defender were in a supervisory, trial and mentoring role. He is also an adjunct professor at Chicago-Kent College of Law, where he teaches courses in criminal procedure and trial advocacy. He serves as member of the ISBA Mental Health Law and the Cannabis Law Section Councils and is also President-Elect of the Illinois Association of Criminal Defense Lawyers, where he is Chair of the Continuing Legal Education Committee. He holds a BA in English (Hon.) from Illinois Tech (IIT) and his JD from Chicago Kent College of Law. 

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1. People v. McDonald, 329 Ill. App. 3d 938 (1st Dist. 2002) (affirming denial of defense‑requested non‑pattern instruction explaining consequences of a not‑guilty‑by‑reason‑of‑insanity verdict and reiterating that post‑verdict disposition is not for the jury).
2. 720 ILCS 5/6‑2; see also discussion in People v. Wilhoite, 228 Ill. App. 3d 12 (1st Dist. 1992) (GBMI does not alter sentencing scheme).
3. 730 ILCS 5/5‑2‑4; 405 ILCS 5/1‑100 et seq.
4. 730 ILCS 5/5‑2‑6(a); People v. Manning, 227 Ill. 2d 403, 318 Ill. Dec. 261 (2008) (persons found GBMI have no greater right to mental‑health treatment than those found guilty).
5. Valerie P. Hans & Dan Slater, “Plain Crazy:” Lay Definitions of Legal Insanity, 7 Int’l J.L. & Psychiatry 127 (1984) (empirical demonstration of lay and juror misconceptions about legal standards for insanity); see also D. Slater & V.P. Hans, Public Opinion of Forensic Psychiatry Following the Hinckley Verdict, 141 Am. J. Psychiatry 675 (1984) (survey showing skepticism and misunderstanding about mental illness in legal contexts).
6. See, e.g., People v. Moore, 147 Ill. App. 3d 880 (4th Dist. 1986) (jury inquiry regarding consequences; court properly declined to answer).
7. People v. Glenn, 33 Ill. App. 3d 666 (1st Dist. 1975).
8. People v. Gacho, 122 Ill. 2d 221 (1988).
9. People v. Taylor, 166 Ill. 2d 414 (1995).
10. People v. Glenn, 33 Ill. App. 3d at 671 (affirming refusal to instruct jury on commitment following insanity verdict).
11. People v. Moore, 147 Ill. App. 3d at 885-86 (trial court properly declined to answer jury question about what would happen after NGRI verdict).
12. See generally Stephen J. Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law, 51 S. Cal. L. Rev. 527, 563-70 (1978).
13. Christopher Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not Have Come, 53 Geo. Wash. L. Rev. 494 (1985).
14. See Illinois House Debates, 82d Gen. Assem., May 19, 1981 (statements emphasizing confinement and public safety in adopting GBMI).
15. Attribution commonly made in Illinois criminal law instruction and CLE programs to Professor Richard Kling (Chicago‑Kent College of Law), using the phrase “guilty with pimples” to describe the practical effect of the GBMI verdict; see also practitioner discussions cited in Slobogin, supra note 13 (noting GBMI’s largely symbolic effect).
16. See Richard J. Bonnie et al., Mental Health and Criminal Justice: An Analysis of the GBMI Verdict (Nat’l Inst. of Justice 1997).
17. ABA Criminal Justice Mental Health Standards § 7‑6.3.
18. Shannon v. United States, 512 U.S. 573 (1994).
19. Ariz. Rev. Stat. § 13‑502.
20. Cal. Penal Code § 1026; CALCRIM 3450.
21. Colo. Rev. Stat. § 16‑8‑105.5.
22. Conn. Gen. Stat. § 53a‑47.
23. Fla. Std. Jury Instr. (Crim.) 3.6(b).
24. O.C.G.A. § 17‑7‑131.
25. Ind. Code § 35‑36‑2‑4.
26. Ky. Rev. Stat. § 504.030.
27. Md. Code, Crim. Proc. § 3‑112.
28. Mass. Gen. Laws ch. 123, § 16; Commonwealth v. Mutina, 366 Mass. 810 (1975).
29. Mich. Comp. Laws § 768.36.
30. N.J. Stat. Ann. § 2C:4‑8.
31. N.Y. Crim. Proc. Law § 330.10.
32. N.C.P.I.—Crim. 304.10.
33. Ohio Rev. Code § 2945.40.
34. 50 P.S. § 7402; Commonwealth v. Mulgrew, 380 A.2d 849 (Pa. 1977).
35. Tenn. Code Ann. § 33‑7‑303.
36. Tex. Code Crim. Proc. art. 46C.251.
37. Va. Code § 19.2‑182.3.
38. Wash. Rev. Code § 10.77.080.
39. People v. Glenn, 33 Ill. App. 3d at 671 (affirming refusal to instruct jury on commitment following insanity verdict); People v. Moore, 147 Ill. App. 3d at 885-86 (trial court properly declined to answer jury question about what would happen after NGRI verdict).
40. State v. Becker, 818 N.W.2d 135 (Iowa 2012).
41. State v. Bethel, 275 Kan. 456 (2003).
42. State v. McLaughlin, 265 S.W.3d 257 (Mo. Ct. App. 2008).
43. State v. Burlison, 255 Neb. 190 (1998).
44. State v. Black, 636 N.W.2d 406 (S.D. 2001).
45. People v. Moore, 147 Ill. App. 3d at 885-86 (trial court properly declined to answer jury question about what would happen after NGRI verdict).