Can mental illness be used as a legal defense in Georgia?
Yes, but it comes into play in two very different ways depending on the timing of the issue.
Competency to Stand Trial is about the defendant’s current mental state. Under O.C.G.A. § 17-7-129, a person cannot be tried, convicted, or sentenced if they are mentally incompetent — meaning they lack a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding, and a rational and factual understanding of the proceedings against them. If competency is in question, the court will order an evaluation by a psychiatrist or licensed psychologist. If found incompetent, the defendant is committed to a state mental health facility for treatment until competency can be restored.
The Insanity Defense (Criminal Responsibility) is about the defendant’s mental state at the time of the alleged crime. Georgia recognizes two forms:
- The “Right from Wrong” Test (O.C.G.A. § 16-3-2): A person cannot be found guilty if, at the time of the act, they lacked the mental capacity to distinguish right from wrong in relation to that act. Having a mental illness isn’t enough — it must have prevented the person from understanding the moral and legal wrongfulness of their actions.
- Delusional Compulsion (O.C.G.A. § 16-3-3): A person is not guilty if a delusion caused by a mental disease, injury, or congenital defect overpowered their will to resist committing the act — provided that, if the delusion were true, it would have justified the act.
Insanity is an affirmative defense, meaning the burden falls on the defense to prove it by a preponderance of the evidence — not on the prosecution to prove sanity.
Georgia also allows a “Guilty but Mentally Ill” verdict for felony cases. This is not an acquittal — the defendant is sentenced as usual, but the court may order psychiatric treatment within the correctional system.
Proving competency issues or insanity is difficult, requiring extensive evaluations, expert testimony, and a deep review of the defendant’s mental health history.
What is the process for pleading not guilty by reason of insanity?
The “not guilty by reason of insanity” plea is a high bar and far from the “get out of jail free” card often portrayed on TV. Here’s how the process works:
- The plea itself: While the defense is referred to as “not guilty by reason of insanity,” the actual plea entered at arraignment is simply “not guilty.” A separate written notice of intent to raise an insanity defense must be filed.
- Mental health evaluation: Once the defense is raised, the court orders a comprehensive evaluation by a licensed psychologist or psychiatrist from the Department of Behavioral Health and Developmental Disabilities (DBHDD). This “court’s expert” evaluates the defendant’s state of mind at the time of the offense, compiles a report, and is typically the last witness to testify — questioned by both prosecution and defense.
- Burden of proof: Normally the State must disprove affirmative defenses like alibi or self-defense. But once insanity is raised, the burden shifts to the defense to prove it by a preponderance of the evidence — a lower bar than “beyond a reasonable doubt,” but still requiring solid, compelling evidence.
- Verdict options at trial: The jury (or judge) can return one of several verdicts:
- Guilty
- Not Guilty (prosecution failed to prove the elements of the crime)
- Not Guilty by Reason of Insanity at the Time of the Crime
- Guilty But Mentally Ill (GBMI) — still a conviction; the defendant is sentenced and incarcerated, with the court acknowledging the mental illness and potentially recommending treatment within the correctional system.
- Consequences of an NGRI verdict: This is where misconceptions often arise — a finding of not guilty by reason of insanity does not mean the defendant walks free. The court retains jurisdiction and orders the defendant detained in a state mental health facility, where DBHDD provides evaluation and treatment. The person remains committed (often for years) until release hearings determine they’re no longer a danger to themselves or others, at which point they may be discharged, sometimes with conditions like outpatient treatment and monitoring.
The insanity defense is raised in less than 1% of felony cases and succeeds in only a fraction of those, often as part of a plea agreement.
Are there diversion programs available for defendants with mental illness?
Yes. Georgia offers several diversion programs and specialized courts designed to provide treatment and support rather than incarceration — aiming to reduce recidivism and improve mental health outcomes.
Mental Health Accountability Courts: Many judicial circuits have established Mental Health Courts for defendants with severe and persistent mental illness (schizophrenia, bipolar disorder, major depression, PTSD, etc.) facing non-violent charges related to their condition. Participants must voluntarily consent and be legally competent. The program typically includes regular court appearances, mandatory treatment (individual/group therapy, medication management, substance abuse treatment if needed), case management for housing/employment/transportation, frequent drug testing, and community service. Successful completion often leads to dismissal of charges and eligibility for record restriction (expungement).
Pre-Trial Diversion Programs: Many counties offer general pre-trial diversion — contractual agreements where charges are dismissed upon successful completion of program requirements (often 6 months to a year). While not exclusive to mental health, these programs frequently include mental health evaluations and treatment as conditions, alongside counseling, drug screening, community service, and restitution. They’re typically available to first-time or low-risk offenders charged with non-violent crimes.
Pre-Arrest Diversion (LEAD Programs): Some areas, including Fulton County, have implemented Law Enforcement Assisted Diversion (LEAD) programs, allowing officers to divert individuals with mental health, substance use, or poverty-related needs to treatment resources before an arrest is made — connecting people directly with services instead of jail.
Eligibility and procedures vary by county and judicial circuit, so it’s important to consult an experienced criminal defense attorney who can assess whether your case qualifies and advocate for your entry into these programs.
Navigating a mental health defense in Georgia requires a deep understanding of both criminal law and mental health principles. The attorneys at Kilgore & Rodriguez can assess your case, determine whether a competency challenge, insanity defense, or diversion program applies, and build the strongest possible path forward. Contact us today for a confidential consultation.