Cite as: 504 U. S. 71 (1992)
Opinion of O'Connor, J.
cate that States must make the insanity defense available. See Idaho Code § 18-207(a) (1987) (mental condition not a defense to criminal charges); Mont. Code Ann. § 46-14-102 (1991) (evidence of mental illness admissible to prove absence of state of mind that is an element of the offense). It likewise casts no doubt on laws providing for prison terms after verdicts of "guilty but mentally ill." See, e. g., Del. Code Ann., Tit. 11, § 408(b) (1987); Ill. Rev. Stat., ch. 38, ¶ 1005-2-6 (1989); Ind. Code § 35-36-2-5 (Supp. 1991). If a State concludes that mental illness is best considered in the context of criminal sentencing, the holding of this case erects no bar to implementing that judgment.
Finally, it should be noted that the great majority of States have adopted policies consistent with the Court's holding. Justice Thomas claims that 11 States have laws comparable to Louisiana's, see post, at 112-113, n. 9, but even this number overstates the case. Two of the States Justice Thomas mentions have already amended their laws to provide for the release of acquittees who do not suffer from mental illness but may be dangerous. See Cal. Penal Code Ann. § 1026.2 (West Supp. 1992) (effective Jan. 1, 1994); Va. Code Ann. § 19.2-182.5 (Supp. 1991) (effective July 1, 1992). Three others limit the maximum duration of criminal commitment to reflect the acquittee's specific crimes and hold acquittees in facilities appropriate to their mental condition. See N. J. Stat. Ann. §§ 2C:4-8(b)(3) (West 1982), 30:4-24.2 (West 1981); Wash. Rev. Code §§ 10.77.020(3), 10.77.110(1) (1990); Wis. Stat. §§ 971.17(1), (3)(c) (Supp. 1991). I do not understand the Court's opinion to render such laws necessarily invalid.
Of the remaining six States, two do not condition commitment upon proof of every element of a crime. Kan. Stat. Ann. § 22-3428(1) (Supp. 1990) ("A finding of not guilty by reason of insanity shall constitute a finding that the acquitted person committed an act constituting the offense charged . . . , except that the person did not possess the requisite
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