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

KENNEDY, J., dissenting

criminal intent"); Mont. Code Ann. §46-14-301(1) (1991) (allowing commitment of persons "found not guilty for the reason that due to a mental disease or defect the defendant could not have a particular state of mind that is an essential element of the offense charged"). Such laws might well fail even under the dissenters' theories. See post, at 91–94 (KENNEDY, J., dissenting); post, at 103 (THOMAS, J., dissenting). Today's holding follows directly from our precedents and leaves the States appropriate latitude to care for insanity acquittees in a way consistent with public welfare. Accordingly, I concur in Parts I and II of the Court's opinion and in the judgment of the Court.

JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, dissenting.

As incarceration of persons is the most common and one of the most feared instruments of state oppression and state indifference, we ought to acknowledge at the outset that freedom from this restraint is essential to the basic definition of liberty in the Fifth and Fourteenth Amendments of the Constitution. I agree with the Court's reaffirmation of this first premise. But I submit with all respect that the majority errs in its failure to recognize that the conditions for incarceration imposed by the State in this case are in accord with legitimate and traditional state interests, vindicated after full and fair procedures. The error results from the majority's primary reliance on cases, such as O'Connor v. Donaldson, 422 U. S. 563 (1975), and Addington v. Texas, 441 U. S. 418 (1979), which define the due process limits for involuntary civil commitment. The majority relies on these civil cases while overruling without mention one of the holdings of our most recent and significant precedent from the criminal context, Jones v. United States, 463 U. S. 354 (1983).

This is a criminal case. It began one day when petitioner, brandishing a .357 revolver, entered the home of a married couple, intending to steal. Brief for Respondent 1. He

KENNEDY, J., dissenting

chased them out of their home and fired on police officers who confronted him as he fled. Id., at 1-2. Petitioner was apprehended and charged with aggravated burglary and the illegal use of a weapon in violation of La. Rev. Stat. Ann. §§ 14:60 and 14:94 (West 1986). 563 So. 2d 1138, 1138-1139 (La. 1990). There is no question that petitioner committed the criminal acts charged. Petitioner's response was to deny criminal responsibility based on his mental illness when he committed the acts. He contended his mental illness prevented him from distinguishing between right and wrong with regard to the conduct in question.

Mental illness may bear upon criminal responsibility, as a general rule, in either of two ways: First, it may preclude the formation of mens rea, if the disturbance is so profound that it prevents the defendant from forming the requisite intent as defined by state law; second, it may support an affirmative plea of legal insanity. See W. LaFave & A. Scott, Jr., 1 Substantive Criminal Law §4.1(b), pp. 429-430 (1986) (hereinafter LaFave & Scott). Depending on the content of state law, the first possibility may implicate the State's initial burden, under In re Winship, 397 U. S. 358, 364 (1970), to prove every element of the offense beyond a reasonable doubt, while the second possibility does not. Patterson v. New York, 432 U. S. 197, 206 (1977); Leland v. Oregon, 343 U. S. 790, 795–796 (1952).

The power of the States to determine the existence of criminal insanity following the establishment of the underlying offense is well established. In Leland v. Oregon, we upheld a state law that required the defendant to prove insanity beyond a reasonable doubt, observing that this burden had no effect on the State's initial burden to prove every element of the underlying criminal offense.

"[T]he burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, ac

KENNEDY, J., dissenting

cording to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se-an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict." Id., at 795-796 (footnotes omitted).

As then-JUSTICE REHNQUIST explained the reasoning of Leland, "the existence or nonexistence of legal insanity bears no necessary relationship to the existence or nonexistence of the required mental elements of the crime." Mullaney v. Wilbur, 421 U. S. 684, 706 (1975) (concurring opinion); see also Patterson v. New York, supra, at 206 (defense of insanity considered only after the facts constituting the crime have been proved beyond a reasonable doubt); Rivera v. Delaware, 429 U. S. 877 (1976) (dismissing challenge to a Leland instruction for want of a substantial federal question).

Louisiana law follows the pattern in Leland with clarity and precision. Pursuant to La. Code Crim. Proc. Ann., Art. 552 (West 1981), the petitioner entered a dual plea of not guilty and not guilty by reason of insanity. The dual plea, which the majority does not discuss or even mention, ensures that the Winship burden remains on the State to prove all the elements of the crime. The Louisiana Supreme Court confirms this in a recent case approving the following jury instruction on the defense of insanity:

"In this case the accused has entered a dual plea of not guilty and not guilty by reason of insanity. As a consequence of such a plea, you must first determine whether or not the accused committed a crime [on which you have been instructed]. If you are convinced beyond a reasonable doubt that the accused did commit any of these crimes, any one of these crimes, then you must proceed to a determination of whether he was sane at the time the crime was committed and thereby crimi

KENNEDY, J., dissenting

nally responsible for committing it.'" State v. Marmillion, 339 So. 2d 788, 796 (1976).

The State's burden is unaffected by an adjudication without trial, such as occurred here, because state law requires the trial court to determine, before accepting the plea, that there is a factual basis for it. La. Code Crim. Proc. Ann., Art. 558.1 (West Supp. 1992). There is no dispute that the trial court complied with state law and made the requisite findings.

Compliance with the standard of proof beyond a reasonable doubt is the defining, central feature in criminal adjudication, unique to the criminal law. Addington, 441 U. S., at 428. Its effect is at once both symbolic and practical, as a statement of values about respect and confidence in the criminal law, Winship, 397 U. S., at 364, and an apportionment of risk in favor of the accused, id., at 369-372 (Harlan, J., concurring). We have often subjected to heightened due process scrutiny, with regard to both purpose and duration, deprivations of physical liberty imposed before a judgment is rendered under this standard. See, e. g., United States v. Salerno, 481 U. S. 739, 750-751 (1987); Jackson v. Indiana, 406 U. S. 715, 738 (1972); cf. Jones v. United States, 463 U. S., at 363-364, and n. 12 ("The proof beyond a reasonable doubt that the acquittee committed a criminal act distinguishes this case from Jackson v. Indiana, 406 U. S. 715 (1972). ... In Jackson there never was any affirmative proof that the accused had committed criminal acts. . ."). The same heightened due process scrutiny does not obtain, though, once the State has met its burden of proof and obtained an adjudication. It is well settled that upon compliance with In re Winship, the State may incarcerate on any reasonable basis. Chapman v. United States, 500 U. S. 453, 465 (1991); Williams v. Illinois, 399 U. S. 235, 243 (1970).

AS JUSTICE THOMAS observes in his dissent, the majority errs by attaching "talismanic significance" to the fact that petitioner has been adjudicated "not guilty by reason of in