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AGO Opinion 83002

January 6, 1983
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