Opinion No. (1983) ( 1983 )

REQUESTED BY: Senator Tom Vickers Nebraska State Legislature State Capitol Lincoln, Nebraska 68509

Dear Senator Vickers:

This is in reply to your inquiry, together with a rough draft of a bill to substantially eliminate `insanity' as a defense. We assume you are contemplating introducing similar legislation.

Enclosed is a copy of a previous opinion of this office concerning a bill similar to yours, which was not intended to eliminate the requirement of the state to prove beyond a reasonable doubt the mental element, or mens rea, required of a particular crime. We think this opinion remains valid and is applicable to your proposal.

We have also studied the procedural requirements, as you requested, and do not feel we would have any difficulty defending the constitutionality of such procedures.

The problems of holding a person beyond the statutory term provided for a conviction, or the failure to impose a sentence indefinitely until after mental treatment such as condemned in State v. Shaw, 202 Neb. 766 (1979), are not present in your bill.

Respectfully submitted, PAUL L. DOUGLAS Attorney General Mel Kammerlohr Assistant Attorney General