Most states have long recognized a form of the insanity defense, based on the defendant’s mental illness, defect, or inability to understand that the criminal act was wrong. In pleading an insanity defense, the defendant admits the criminal conduct, but asserts a lack of culpability based on mental illness. Many states still model their insanity defense on the old English rule of law (the M’Naghten rule from 1843) in which the defendant asserts he (1) did not know the nature and quality of the act, or (2) did not know that it was wrong.

And it is an affirmative defense to a prosecution under any federal statute (federal law) that, at the time of the offense, the defendant was unable to appreciate the nature and quality of his acts, or the wrongfulness of his acts. See 18 U.S.C. §17.

When a defendant is found not guilty by reason of insanity it does not mean he necessarily goes free. States often have requirements for treatment or institutionalization after such a finding. And some states require, at a minimum, confinement in a treatment institution or facility for the length of time the person would have received if convicted—so a defendant may end up spending more time confined than if he did not raise such a defense.

The law regarding the availability, definitions, and nature of the insanity defense vary from state to state, and are usually located in a state’s statutes.

In Nebraska, the insanity defense is recognized and is similar to the M'Naghten rule, which is the traditional standard for insanity defenses. Under Nebraska law, a defendant may be found not guilty by reason of insanity if at the time of the crime, they were suffering from a mental illness or defect that prevented them from understanding the nature and quality of their actions, or from understanding that their actions were wrong. This is codified in Nebraska Revised Statute 29-2203. If a defendant is successful with an insanity defense, they are not automatically set free. Instead, Nebraska law requires that the individual be committed to the Department of Health and Human Services for treatment. The length of commitment is determined by the court and may be equivalent to or longer than the sentence that would have been imposed had the defendant been convicted of the offense. The commitment process is governed by Nebraska Revised Statute 29-3701 and following sections, which outline the procedures for commitment and treatment of individuals found not guilty by reason of insanity.