98
Kennedy, J., dissenting
others have abolished the defense altogether, see Idaho Code § 18-207(a) (1987); Mont. Code Ann. § 46-14-102 (1992). Since it is well accepted that the States may define their own crimes and defenses, see supra, at 96, the point would not warrant further mention, but for the fact that the majority loses sight of it. In describing our decision in Jones, the majority relies on our statement that a verdict of not guilty by reason of insanity establishes that the defendant " 'committed the act because of mental illness.' " Ante, at 76, quoting Jones, 463 U. S., at 363. That was an accurate statement in Jones but not here. The defendant in Jones was acquitted under the Durham test for insanity, which excludes from punishment criminal conduct that is the product of a mental disease or defect. See Bethea v. United States, 365 A. 2d 64, 69, n. 11 (1976); see also Durham v. United States, 94 U. S. App. D. C. 228, 240-241, 214 F. 2d 862, 874- 875 (1954). In a Durham jurisdiction, it would be fair to say, as the Court did in Jones, that a defendant acquitted by reason of insanity "committed the act because of mental illness." Jones, supra, at 363. The same cannot be said here, where insanity under M'Naghten proves only that the defendant could not have distinguished between right and wrong. It is no small irony that the aspect of Jones on which the majority places greatest reliance, and indeed cites as an example of its adherence to Jones, has no bearing on the Louisiana statute at issue here. See ante, at 76, and n. 4.
The establishment of a criminal act and of insanity under
the M'Naghten regime provides a legitimate basis for confinement. Although Louisiana has chosen not to punish insanity acquittees, the State has not surrendered its interest in incapacitative incarceration. The Constitution does not require any particular model for criminal confinement, Harmelin v. Michigan, 501 U. S. 957, 999 (1991) (Kennedy, J., concurring in judgment) ("The federal and state criminal systems have accorded different weights at different times
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