Sanity Is a Legal Fiction — And in New Hampshire It Doesn’t Even Sort You Correctly

No psychiatrist has ever diagnosed “sanity.” It’s a sorting tool courts use to decide which building holds you and which slice of the Constitution applies once the door locks. New Hampshire keeps a building where the label and the address no longer match.

No psychiatrist has ever written the word “sane” on a chart. It isn’t a diagnosis, a syndrome, or a number on a scale. Sanity is a legal fiction — a sorting mechanism courts use to decide which box you belong in, which building holds you, and which portion of the Constitution applies after the door locks behind you. The boxes are only as honest as the buildings behind them. New Hampshire keeps a building where the box on your file and the address on the door have stopped agreeing.

Start with the question the fiction was invented to answer: was this person responsible? America has never agreed on how to ask it. The English judges who decided M’Naghten’s Case in 1843 settled on a cognitive test — a defendant escapes responsibility only if mental disease left him unable to understand what he was doing or to know that it was wrong. Roughly half the states still run some version of it. A minority bolted on an “irresistible impulse” rider for defendants who knew the act was wrong but couldn’t stop themselves. In 1962, the American Law Institute tried to modernize the whole apparatus with its Model Penal Code standard: a defendant lacks responsibility if he lacks “substantial capacity” either to appreciate the criminality of his conduct or to conform that conduct to the law — a test with room for both a broken understanding and a broken brake.

Then John Hinckley shot a president, was acquitted by reason of insanity in 1982, and Congress panicked. The Insanity Defense Reform Act of 1984 amputated the volitional prong, narrowed the federal standard back to bare cognition, and dumped the burden of proof onto the defendant. The Durham “product” test — insanity if the crime was the product of mental disease — was already dead on the table. And four states — Idaho, Kansas, Montana, and Utah — simply abolished the defense outright. In Kahler v. Kansas (2020), the Supreme Court shrugged and held that the Constitution requires no particular insanity test at all; a state may channel mental illness through ordinary questions of intent and call it a day. So the foundational question — is this person sane enough to be guilty? — has, today, no national answer. It has fifty.

Even “winning” is a trap. Under Jones v. United States (1983), an insanity acquittal isn’t a key; it’s a different kind of cell. The acquittee can be committed to a psychiatric institution and held until he is no longer mentally ill or no longer dangerous — a term that can, and routinely does, run longer than the prison sentence he avoided. The verdict that spares you punishment becomes the legal predicate for your confinement. You don’t walk out. You change wings.

But here is what the entire insanity-defense debate obscures: most of the people warehoused in a state’s most secure psychiatric setting never stood trial for anything. They came in through the civil door. In New Hampshire, that door is RSA 135-C, and it does not care whether you committed a crime, whether you are responsible, or whether you can tell right from wrong. It asks two questions only.

Mental illness, plus dangerousness. No crime. No conviction. No jury. A civil finding that you are sick and that your sickness makes you a risk — and the state may hold you against your will. This is supposed to be the gentler track, the one that ends in a hospital rather than a cellblock.

It doesn’t. When New Hampshire decides that a civilly committed patient is too dangerous for New Hampshire Hospital — its actual psychiatric facility — it ships that patient to the Secure Psychiatric Unit. The SPU sits on the grounds of the State Prison for Men in Concord. It is run by the Department of Corrections. It is not accredited as a mental health facility. By the state’s own accounting, the unit has held roughly 39 patients at a time, of whom about 17 — like the man whose name should anchor this piece — were never charged with any crime at all.

Read that against the fiction. The entire purpose of sorting people by sanity, by responsibility, by the civil-versus-criminal track, is to send the convicted and the merely-ill to different places. New Hampshire runs both tracks into the same building. The label on your file says “patient.” The razor wire says otherwise.

Jason Rothe was 50, diagnosed with schizophrenia, and had never been convicted of a crime. Civilly committed to New Hampshire Hospital in 2019, he was transferred to the SPU in 2022 after the hospital deemed him too dangerous to remain. On April 29, 2023, after he refused to leave a day room, six corrections officers moved to remove him by force. He was tased, struck, and handcuffed face-down on the floor. One officer, Matthew Millar, pressed a knee into his back for several minutes — the prone-restraint position tied to hundreds of in-custody deaths across the country. Rothe stopped breathing. The state medical examiner ruled his death a homicide: the combined effects of compressional and positional asphyxia.

Millar was charged with second-degree murder. In 2025, a jury acquitted him. In April 2026, Rothe’s family sued the Department of Corrections, its former commissioner, and seven employees in federal court. The department had first announced it cleared the officers, then admitted it never actually completed the review — the internal inquiry stopped once officials learned the federal Department of Justice was investigating. A former SPU nurse reduced the institutional problem to nine words: this is a prison, this is not a hospital. Rothe’s was at least the second such death at the unit since 2017.

Now the constitutional cruelty, which cuts sharper than the physical one. The Eighth Amendment forbids “cruel and unusual punishments” — and read the way its text demands, conjunctively, a punishment must be both cruel and unusual to be barred. Nearly fifty years ago, in Laaman v. Helgemoe (D.N.H. 1977), a federal judge in New Hampshire used exactly that clause to rule that conditions at the State Prison were unconstitutional and to compel the state to fix them. The convicted men inside that prison have that ruling, and that amendment, standing behind them.

The civil patients beside them do not. The Eighth Amendment reaches only “punishment,” and a civilly committed patient is, in the eyes of the law, not being punished — he is being treated. So the entire cruel-and-unusual analysis, conjunctive or otherwise, never gets reached on his behalf. He is handed the thinner Fourteenth Amendment floor of Youngberg v. Romeo (1982): a right to “reasonably safe” conditions, measured against the deferential standard of “professional judgment.” The result is grotesque. The men New Hampshire deemed innocent enough not to charge receive less constitutional protection than the convicts down the hall — while living in conditions at least as punitive. The fiction of sanity sorts you into a box. The box determines your rights. It does not determine your address.

There is supposed to be a remedy. The state is building a 24-bed forensic psychiatric hospital next to New Hampshire Hospital — a real hospital, outside the prison perimeter, built for exactly these patients. It broke ground in 2023 at a cost now approaching $49 million, potentially the most expensive capital project in state history. It was supposed to open in 2025.

Every slipped quarter is a quarter that people who were never charged with a crime spend behind razor wire, waiting for a building that keeps receding into the future.

Sanity, in the United States, is not something you have. It is the absence of a legally recognized excuse, measured against whichever test your state happened to pick. New Hampshire has taken that fiction and handed it a punchline. The sorting mechanism cannot tell the convicted from the committed, because it files them at the same address. The constitutional protections sort by the wrong variable. The remedy is three years late and counting. And somewhere in the record is a man the state never accused of anything — who needed a hospital and died in a prison waiting for one that still isn’t built.

That is not a system that mislabels sanity. That is a system that knows exactly what it is doing, and does it anyway.