with whom Circuit Judges STAPLETON, CO WEN and ROTH join, dissenting:
The question for decision in this appeal by George Geschwendt from a denial of federal habeas corpus relief is whether he was deprived of liberty without due process of law in violation of the Fourteenth Amendment when he was convicted of *892first-degree murder by a Pennsylvania jury that was not given the option of finding him not guilty by reason of insanity.
Geschwendt’s sole defense was insanity. Pennsylvania statutes in effect since 1860 require that the jury be instructed that it has the option of returning a verdict of not guilty by reason of insanity in cases raising the insanity defense. The trial court denied Geschwendt’s request for such an instruction. In my view, the court’s denial of this third option verdict deprived Geschwendt of a right to liberty guaranteed by the due process clause of the Fourteenth Amendment. I would, therefore, reverse the judgment of the district court and remand with instructions to enter an order granting the petition for a writ of habeas corpus. Accordingly, I dissent.
I.
Here we are faced with an appeal by an individual who was convicted by a state court jury in a high-profile, mass-murder case. In a case such as this, where it is difficult to muster any sympathy for the petitioner, the task of determining whether the state trial court protected his constitutional rights taxes the accountability, if not the very integrity, of the federal judicial system in its obligation to implement the Great Writ. In the allocation of competences between the state and federal judicial systems, the guilt or innocence of the petitioner must be decided by the state; the federal court may inquire only into the state’s procedures to determine whether they pass constitutional muster.
As we measure the contours of the Constitution, federal judges are keenly aware that we do not engage in a popularity contest. We must disregard public opinion on a given issue or in a given case. As ultimate guardians of the Constitution, our role is to insure that society, when prosecuting those who breach its rules of conduct, does not breach its own rules of procedure. Our task in federal collateral review of state convictions, therefore, is not to inquire whether the habeas petitioner has violated rules of social conduct, but only whether society, in this case the Commonwealth of Pennsylvania, has respected the rules it has established to guarantee fair trials. I would hold that it has not.
II.
Geschwendt’s principal contention is that due process guaranteed him the fair opportunity to present his insanity defense to the jury, see United States ex rel. Smith v. Baldi, 192 F.2d 540, 544 (3d Cir.1951), aff'd, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953), and that this opportunity was foreclosed when the Pennsylvania trial court refused to instruct the jury that it could return a verdict of not guilty by reason of insanity. Geschwendt makes a classic procedural due process argument that he was deprived of both a quantum and a quality of liberty in the sense of freedom from physical restraint because his jury was not permitted to make an informed judgment regarding the possibility of reaching a verdict of not guilty by reason of insanity. He argues that had the jury rendered such a verdict, he would have been confined to a mental institution for “so long as [he] shall continue to be of unsound mind,” rather than to a prison for six life terms. See 19 Pa.Stat.Ann. § 1351 (Purdon 1964).
A.
Because this is the issue for decision, it is important to emphasize what is not. This is not a case governed by the holding in Sckad v. Arizona, — U.S.-, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), which the majority vigorously endorse as “control[ling] the outcome of this appeal.” Maj.Op. at 883. Sckad merely addressed a lesser-included offense; it did not deal with a defense requiring an acquittal.
Sckad does not stand as authority to excuse the Pennsylvania trial court’s refusal to instruct the jury on the possible verdict of not guilty by reason of insanity. Sckad discusses only a range of possible guilty verdicts; there is not one whit or tittle about acquittees. I believe the due process clause guaranteed Geschwendt the right to the option of becoming a “commit*893ted acquittee, one who has been found not guilty by reason of insanity and who consequently has been committed to a mental institution. See, e.g., Foucha v. Louisiana, — U.S. -, -, 112 S.Ct. 1780, 1783, 118 L.Ed.2d 437 (1992); Jones v. United States, 463 U.S. 354, 367-68, 103 S.Ct. 3043, 3051, 77 L.Ed.2d 694 (1983).
The majority insist that the Pennsylvania proceedings in this case pass due process muster because under the teachings of Schad, the third option verdict of not guilty by reason of insanity was not necessary because the trial court permitted the jury to return a verdict of guilty of third-degree murder by reason of his mental condition. The problem with this analysis is evident: Geschwendt had a federal constitutional right to be afforded the option of being acquitted, albeit for reason of insanity; and being acquitted is neither the jurisprudential nor the due process equivalent of being convicted of a lesser-included offense.
The majority improperly confuse defense apples with lesser-included offense oranges. I find it appropriate to paraphrase Justice Brennan’s language in a recent “committed acquittee” case: The majority begin by posing the wrong question. The issue in this case is not whether the jury instruction properly charged on a lesser-included offense. The question before us is whether the trial judge’s refusal to charge on a possible verdict of not guilty by reason of insanity constituted a denial of due process. Jones v. United States, 463 U.S. 354, 371, 103 S.Ct. 3043, 3053, 77 L.Ed.2d 694 (1983) (Brennan, J., dissenting).
III.
Although I do not consider a discussion of the lesser-included offense doctrine relevant to the “committed acquittee” issue before us, I will meet the majority’s argument head-on and demonstrate that, even if relevant, the teachings of Schad do not rescue the Pennsylvania trial court from the consequences of disavowing rights guaranteed by the due process clause.
A.
In Schad, the Court held that the refusal to charge on the lesser-included offense of robbery was harmless error. Applying Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), the Court determined that the fact “that the jury’s ‘third option’ was second-degree murder rather than robbery [did] not diminish the reliability of the jury’s capital murder verdict.” Ill S.Ct. at 2505. But the court explained:
That is not to suggest that Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence. Cf. Roberts v. Louisiana, 428 U.S. 325, 334-35, 96 S.Ct. 3001, 3006-07, 49 L.Ed.2d 974 (1976) (plurality opinion). In the present case, however, petitioner concedes that the evidence would have supported a second-degree murder conviction, Brief for Petitioner 18-19, and that is adequate to indicate that the verdict of capital murder represented no impermissible choice.
Id. (emphasis added). By “no impermissible choice,” the Court meant that the alternative instruction in that case was supported by the evidence and thus represented a viable option for the jury. The Court made clear, however, that to save the instruction, any lesser-included offense must be supported by the evidence; if no eviden-tiary support is present, the lesser-included offense instruction is deficient as a matter of law.
In the present case the lesser-included offenses were third-degree murder and voluntary manslaughter. Under Pennsylvania law in effect at the time of Geschwendt’s trial, a conviction of either of these offenses would have required the jury to find that Geschwendt’s acts were not “wilful, deliberate, intentional and premeditated.” App. at 101A. Such a finding would have been in stark contrast with the uncontro-verted evidence that supported only a verdict of first-degree murder or of not guilty by reason of insanity. Geschwendt’s acts were not committed in the heat of passion, nor were they reckless; they were wilful, *894deliberate, intentional and premeditated, and the jury could not have found otherwise.
Indeed, Geschwendt never attempted to prove third-degree murder or voluntary manslaughter. He confessed to conduct that was wilful, deliberate, intentional and premeditated. The majority agree that “Geschwendt had intended to kill the entire [Abt] family.” Maj.Op. at 879. It was “a carefully planned, calculated mass homicide which he attempted to conceal both before and after the fact.” Id. at 888.
Geschwendt’s entire defense to the first-degree murder charge was insanity. He introduced expert psychiatric testimony supporting this defense. He did not request a jury instruction on third-degree murder or voluntary manslaughter; nor did the prosecution, which relied solely on the theory that Geschwendt was guilty of first-degree murder. The trial court decided sua sponte to charge the jury on the lesser-included offenses, and rejected Geschwendt’s request for a third option verdict of not guilty by reason of insanity, even though the evidence offered by the prosecution and defense focused entirely on the question of Geschwendt’s sanity.
Because the evidence did not support the jury charges on third-degree murder and voluntary manslaughter, this case is beyond the pale of Schad.
B.
Nonetheless, the majority devote considerable time to the proposition that somehow Schad v. Arizona controls and that the jury charges at issue here complied with the requirements of that case. The majority divine from Schad the proposition that “in cases involving offenses on a ladder, if the trial court wrongfully refuses to charge the offense at the bottom rung, that error is harmless provided the jury returns a guilty verdict for an offense higher up rather than for an intermediate offense which was also charged.” Maj.Op. at 884. Not only does this statement fail to mention the possibility of an acquittal, but it also squarely contradicts our holding in Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir.1988) (failure to instruct on a lesser-included offense supported by the evidence is not harmless error). Were this statement not classic obiter dictum, it would overrule Vujosevic by implication, notwithstanding the disclaimer in footnote 13, Maj. Op. at 884-885, that the court expresses no opinion on Vujosevic. Indeed, the majority appear to follow the lead of Lord Byron’s Julia, who “whispering, ‘I will ne’er consent’ — consented.”1 The majority’s dictum, however, is unsupported by law and rests on conjecture, if not false assumptions, about how juries evaluate evidence. I trust that in future cases presenting this question, the court will adhere to its clear statement in footnote 13 and continue to recognize the vitality of Vujosevic.
C.
The majority seem to suggest that the trial court’s instruction on third-degree murder was fundamentally similar to a third option verdict of not guilty by reason of insanity, because both third-degree murder and the insanity defense involve the defendant’s incapacity to form the requisite intent. Id. at 886. The Pennsylvania Supreme Court has explicitly rejected this argument:
No such direct relationship exists in the Pennsylvania legislative scheme between the mens rea element of murder and the affirmative defense of insanity. Sanity of the accused is not a prerequisite to the Commonwealth’s making out a case of third degree murder. It is instead addressed solely to penological concerns, i.e., whether the defendant should be punished for his wrongdoing. In assessing sanity, a court is not concerned with whether the defendant committed the act (the actus reus) — in most cases where insanity is plead the defendant acknowledges his conduct — or with whether he had formed the prescribed mental state (the mens rea), but rather it is concerned with the societal judgment *895of whether the defendant should be held criminally responsible for his act.
Commonwealth v. Reilly, 519 Pa. 550, 565-66, 549 A.2d 503, 510-11 (1988).
In Vujosevic, we determined that the district court had erred in failing to instruct the jury on the lesser-included offense of aggravated assault, which was supported by the record. Engaging in a harmless error analysis, we held that “the instruction on simple manslaughter was not a constitutionally adequate substitute for an instruction on aggravated assault” because it “did not necessarily offer the jury a rational compromise between aggravated manslaughter and acquittal; only an aggravated assault charge could do that.” 844 F.2d at 1028.
Accordingly, I believe that the trial court’s instructions on the lesser-included offenses of third-degree murder and voluntary manslaughter in Geschwendt’s case were not viable alternatives on this record; they were not a constitutionally adequate substitute for the instruction on the third option verdict of not guilty by reason of insanity.
D.
It also is important to note what other points are not relevant here. We do not have a claim that in 1976 the Pennsylvania trial court was required to instruct the jury as to the consequences of a verdict of not guilty by reason of insanity. We also do not have a claim that Pennsylvania law is constitutionally infirm because it does not permit an insanity defense. See Foucha v. Louisiana, — U.S. at-, 112 S.Ct. at 1789 (O’Connor, J., concurring) (“The Court does not indicate that the States must make the insanity defense available.”); see also Ake v. Oklahoma, 470 U.S. 68, 91, 105 S.Ct. 1087, 1100, 84 L.Ed.2d 53 (1985) (Rehnquist, J., dissenting) (“It is highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant.).” The Commonwealth of Pennsylvania recognizes this defense and has done so since Pennsylvania was one of the thirteen colonies. See Commonwealth v. Smith, 374 Pa. 220, 226-27, 97 A.2d 25, 29 (1953) (restating rule that a defendant has a right not to pay the penalty for an action if his or her mental condition does not satisfy the legal test for sanity); Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 106-07, 71 A.2d 107, 115, cert, denied, 340 U.S. 812, 71 S.Ct. 40, 95 L.Ed. 597 (1950) (recognizing that an individual’s insanity at the time of an offense requires an acquittal).
I now turn to Geschwendt’s basic due process argument that he was denied both a quantity and a quality of liberty when the third option verdict of not guilty by reason of insanity was withheld from the jury.
IY.
This argument invokes a fundamental concept, properly expressed in the teachings of Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980):
Where ... a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law. That defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner’s right to liberty is a denial of due process of law.
Id. at 346, 100 S.Ct. at 2229 (citations omitted) (footnote omitted). The majority nonchalantly slough off this fundamental precept and suggest that any violation of state law in this case would not rise to a constitutional deprivation. See Maj.Op. at 888-889. This analysis contradicts both specific *896Supreme Court teachings on “committed acquittees” and this court’s recognition that when a state, such as Pennsylvania, has created an insanity defense, “due process guarantees all defendants fair opportunity to present the defense.” United States ex rel. Smith v. Baldi, 192 F.2d at 544; see also Thomas v. Cunningham, 313 F.2d 934, 938 & n. 7 (4th Cir.1963) (“Procedural due process requires that a state shall afford [a defendant] adequate opportunity to raise [an insanity defense].”).
The Supreme Court has elevated a defendant’s opportunity to be a “committed ac-quittee” to a right protected by the due process clause. As recently as May 18, 1992, the Supreme Court reaffirmed this concept of due process:
We held [in Jones v. United States, 463 U.S. 354, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983)], however, that “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,” id., at 368 [103 S.Ct. at 3052]; i.e. the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. We relied on O’Connor v. Donaldson, 422 U.S. 563 [95 S.Ct. 2486, 45 L.Ed.2d 396] (1975), which held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person.
Foucha v. Louisiana, — U.S. at-, 112 S.Ct. at 1784 (emphasis added).
Geschwendt alleges that the trial court’s denial of an opportunity for confinement to a mental institution for “so long as [he] shall continue to be of unsound mind,” instead of to a prison for life, deprived him of both a quantum and a quality of liberty. Based on the Supreme Court’s teachings, there is no doubt that when a defendant is denied the opportunity of becoming a committed acquittee and of being placed in a mental institution until he has recovered his sanity or is no longer dangerous and instead is given only the option of the death penalty or of serving six life terms in a penal institution, that individual has been denied due process. Nothing in the majority opinion comes to grips with this key issue. Nothing in the majority’s labored rationalization of the mechanics of the third-degree murder verdict option comes to grips with Geschwendt’s constitutional right to an opportunity to become a committed acquittee. An individual found guilty of third-degree murder is not, by any stretch of an innovative imagination, considered an “acquittee.”
I had always thought there was a difference between being found guilty and being acquitted. I thought that this was a basic principle taught in junior high school civics classes. I am, therefore, somewhat distressed that the majority are not willing to extend the same right to be found not guilty by reason of insanity that the U.S. District Court for the District of Columbia accorded John Hinckley, Jr., who, after attempting to assassinate then President Ronald Reagan in 1981, successfully interposed this defense.2
The right to be committed to a mental institution, rather than imprisoned in a penitentiary, also was the critical issue in the plea entered this year in the internationally publicized case of Jeffrey L. Dahmer, who admitted strangling and dismembering 17 young males. He was permitted under Wisconsin law to plead not guilty of murder by reason of mental disease or defect, which constitutes an admission as to the elements of the substantive offense, except for the mental state, and raises a defense of insanity. Dahmer thus was entitled to a fair determination of his mental capacity, notwithstanding the extreme brutality of his crimes.3
*897I am melancholy that this court, long recognized as a shining acropolis of constitutional law protection, now stands in the shade. In the shade of a federal district court in our nation’s capital and a state trial court in Wisconsin.
There is a fundamental difference between being found guilty of an offense and being acquitted, albeit by reason of insanity. Every member of this court knows this. And irrespective of the reprehensible acts committed in this case, we are a reviewing court of judges; we are not an ingathering or collection of the laity, untrained in the law. As judges we must rise above the passions of the streets, above superstition or popularity or opprobrium. In the words of Justice Felix Frankfurter, we are committed to the “institutionalized medium of reason, [and] that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, unprincipled, undisciplined feeling.”4
We have held that “[t]o deny [a defendant] the possibility of a lesser restraint of liberty because of a practice which permits arbitrary trial court activity is offensive to ... settled concepts of due process.” United States ex rel. Matthews v. Johnson, 503 F.2d 339, 345 (3d Cir.1974) (in banc), cert, denied, 420 U.S. 952, 95 S.Ct. 1336, 43 L.Ed.2d 430 (1975). Involved here are those precepts of constitutional law that concern “the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states.” Palko v. Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Freedom from physical restraint without due process of law is among those “ ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,’ ” Powell v. Alabama, 287 U.S. 45, 67, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932) (quoting Herbert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926)); is “basic to our system of jurisprudence,” In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); and is “essential to a fair trial.” Gideon v. Wainwright, 372 U.S. 335, 342-44, 83 S.Ct. 792, 795-96, 9 L.Ed.2d 799 (1963); see Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965).
With these axioms of procedural due process as a jurisprudential backdrop, I now must examine the substantive Pennsylvania law governing the criminal trials. This is necessary because the majority have affirmed the district court on the basis of one issue. Because I would reverse, I must respond to all of the Commonwealth’s contentions before us.
First, I will meet the Commonwealth’s argument that the trial court observed all the state law requirements in this case because a third option verdict of not guilty by reason of insanity was not necessary under Pennsylvania law at the time of Geschwendt’s trial. Once I demonstrate that this contention is not persuasive, I will show, albeit in some repetitive fashion, how the state trial court’s denial of the third option verdict, violated Geschwendt’s due process rights.
V.
At the time of Geschwendt’s trial in 1976, two Pennsylvania statutes required that a jury acquitting a defendant on the basis of insanity state the reason for such acquittal in the verdict. First and foremost, the Act of March 31, 1860, P.L. 427, § 66, as amended, provided:
In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, the jury 'shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall order *898the cost of prosecution to be paid by the county, and shall have power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of unsound mind.
19 Pa.Stat.Ann. § 1351 (Purdon 1964) (emphasis added) [hereinafter “Act of I860”], repealed by Act of April 28, 1978, P.L. 202, § 2(a)[377], 42 Pa.Cons.Stat. § 20002(a)[377] (Supp.1982) (effective June 27, 1980). The Mental Health and Mental Retardation Act of 19665 also provided:
(a) Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such reason for acquittal in its verdict.
(b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406.
50 Pa.Stat.Ann. § 4413 (Purdon 1969), repealed in part by Act of July 9, 1976, P.L. 817, § 502, 50 Pa.Stat.Ann. § 7502 (Purdon 1976).
After presenting insanity as his sole defense, Geschwendt’s trial counsel brought to the trial court’s attention the criminal procedure requirements of the Act of 1860, as amended, and asked the court to instruct the jury on the possible verdict of not guilty by reason of insanity:
DEFENSE COUNSEL: I would take exception to Your Honor’s second failure to charge regarding the specific alternative possibility of a verdict of not guilty by reason of insanity in accordance with 19 Purdon's 1351 which, I believe, requires the instruction be given to the jury — the option be given to the jury, unless I misread it.
THE COURT: I do not follow you at all on that.
DEFENSE COUNSEL: It’s my feeling they should be specifically instructed there is an alternative not guilty verdict which specifically states not guilty by reason of insanity. I believe that’s what the statute says.
THE COURT: An exception is granted. App. at 43A.
On appeal to the Pennsylvania Supreme Court, Geschwendt argued that the trial court erred in refusing to inform the jury of the consequences of a verdict of not guilty by reason of insanity. Commonwealth v. Geschwendt, 500 Pa. at 124, 454 A.2d at 993. The plurality discussed at length whether to give retroactive effect to the holding in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), that a jury must be instructed on the consequences of a verdict of not guilty by reason of insanity. The three-judge plurality concluded that it should not, and thus rejected Geschwendt’s argument. 500 Pa. at 135, 454 A.2d at 999.
Justice Roberts, writing for the dissenting three judges, responded that the re-troactivity analysis was unnecessary. Instead, he characterized as “critical” the trial judge’s erroneous refusal to “honor the fundamental request of appellant that the jury be instructed ‘regarding the specif*899ic alternative possibility of a verdict of not guilty by reason of insanity.’ ” Id. at 136, 454 A.2d at 1000 (Roberts, J., dissenting). Justice Roberts concluded: “Because appellant’s sanity was a central issue, upon which substantial evidence was offered by both the defense and prosecution, appellant was statutorily entitled to an instruction that would have informed the jury of its right to return a verdict of not guilty by reason of insanity.” Id. (Roberts, J., dissenting).
VI.
For three separate reasons, I would reject the Commonwealth’s contention that Pennsylvania trial courts were not compelled to offer this third option verdict in insanity defense cases at the time of Geschwendt’s trial in 1976, and that the option did not become required by law until a year later, when the Pennsylvania Supreme Court handed down its decision in Mulgrew.
A.
First, to accept this notion is to suggest that only a court, and not the legislature, may create the substantive law of Pennsylvania. The absurdity of this proposition is manifest. For more than 100 years prior to Geschwendt’s' trial, the legislature had commanded, in one form or another, that “the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity,” 19 Pa.Stat.Ann. § 1351 (Purdon 1964), or that the “jury or the court as the case may be, shall state such reason for acquittal in its verdict.” 50 Pa.Stat.Ann. § 4413(a) (Purdon 1969). It logically follows from the plain language of these statutes that a jury must be instructed on a verdict of not guilty by reason of insanity whenever the insanity defense is raised. A defendant simply cannot be found not guilty by reason of insanity, as directed by the Pennsylvania legislature, if such a verdict is not made known to the jury. See Commonwealth v. Trill, 374 Pa.Super. 549, 567, 543 A.2d 1106, 1114-15 (1988), appeal denied, 522 Pa. 603, 562 A.2d 826 (1989).
Case law demonstrates that Pennsylvania trial judges and practitioners in criminal courts routinely respected the directive of these statutes. Long before the Mul-grew decision, trial judges and lawyers followed the clear language of the Act of 1860 and the teachings of other Pennsylvania Supreme Court cases. For example, as early as 1911, the Pennsylvania Supreme Court discussed the significance of the Act of 1860:
When insanity is set up as a defense to an indictment charging the commission of a crime, it becomes, under the act of 1860, a distinct issue before the jury, and if, in their judgment, the accused ought to be acquitted because he was insane at the time he committed the act charged against him, there must be a special finding by the jury of insanity as the groun[d] of acquittal.
Commonwealth v. Molten, 230 Pa. 399, 402, 79 A. 638, 638 (1911) (emphasis added); accord Commonwealth v. Ragone, 317 Pa. 113, 122-23, 176 A. 454, 458 (1935).
Moreover, in 1959, the Pennsylvania Trial Guide included the following “approved charge” on a defense of insanity:
“The plea of insanity at the time of committing the crime is a well recognized defense_ If the defendant has satisfied you by fairly preponderating evidence that he was insane at the time (deceased met his death), although the Commonwealth has convinced you that the defendant did the (killing), you would find him not guilty (by reason of insanity)”
Burton R. Laub, Pennsylvania Trial Guide § 194.1(1), at 368 (1959 & Supp.1968) (quoting Commonwealth v. Smith, 374 Pa. at 226, 97 A.2d at 29). The cases illustrate use of similar instructions. See, e.g., Commonwealth v. Patskin, 372 Pa. 402, 419, 93 A.2d 704, 713 (1953) (“If you find, by the fair weight and preponderance of the evidence, that the defendant ... was insane within the legal meaning of the term, at the time of the commission of the offense, your verdict must be not guilty by reason *900of insanity.”), cert. denied, 347 U.S. 931, 74 S.Ct. 534, 98 L.Ed. 1082 (1954).
B.
Second, the precise issue before the Pennsylvania Supreme Court in Mulgrew was “whether the court below erred in failing to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity,” 475 Pa. at 275, 380 A.2d at 351, and not whether Pennsylvania law required that an instruction be given on the availability of such a verdict. If anything, the issue and decision in Mul-grew presupposed that the jury would be given the option of finding the defendant not guilty by reason of insanity. In overruling its prior decision in Commonwealth v. Gable, 323 Pa. 449,187 A. 393 (1936), the court held “that it is proper to instruct the jury concerning the possibility of commitment proceedings being initiated against the defendant if such defendant is acquitted of the criminal charge filed against him by reason of an insanity defense.” 475 Pa. at 275, 380 A.2d at 351. The court reasoned that
explaining the consequences of acquittal by reason of insanity to a jury will assist the jury in properly determining the guilt or innocence of a defendant. By such an instruction we reduce the possibility of compromise verdicts of guilty occasioned by a jury’s misapprehension of “acquitting” a defendant by reason of insanity.
Id. at 276, 380 A.2d at 352. Thus, the purpose of the Mulgrew rule was to clear up any juror confusion regarding the meaning of one of the three possible verdicts required by law in insanity defense cases.
C.
Third, the practice of instructing on the third option verdict was so uniformly recognized that when the issue was presented to the Pennsylvania Supreme Court in 1987, the court held that the failure of defense counsel to request such a verdict constituted ineffective assistance of counsel under the Sixth Amendment. Commonwealth v. Gass, 514 Pa. 287, 294, 523 A.2d 741, 744 (1987). The court concluded that the failure to request an instruction at all was worse than failing to request an instruction regarding the consequences of the third option verdict:
In the instant case, not only was the meaning of a not guilty by reason of insanity verdict not explained to the jury, they were not even advised that it was a possible verdict. Based on the instruction that was given, we cannot assume that they understood that if they believed the insanity defense, they could find the Appellant not guilty by reason of insanity, when they were told there were only five possible verdicts that they could reach. Nor can we speculate as to what the verdict would have been had they been properly instructed.
Id. at 293, 523 A.2d at 744.
VII.
Borrowing the language of the Pennsylvania Supreme Court, we also cannot “speculate as to what the verdict would have been [in this case] had [the jury] been properly instructed.” Id. Here we have a man who confessed to the brutal killing of six people over a period of six hours. His only defense was insanity; yet the jury was instructed to bring back an either/or verdict — guilty or not guilty:
If you would conclude that the Commonwealth has not met its burden as to any of the above, then the Commonwealth should suffer an acquittal and you should find the defendant not guilty and that would be the end as to your deliberations. [App. at 106A.] .
As I said to you before, it would appear to me, but again I repeat it ... for you, that the defendant is either guilty or not guilty of all of the various informations charging him with the killing of the five members of the Abt family and Garson Engle. [Id. at 114A.]
In view of what I have said regarding the legal test of insanity and the Commonwealth’s burden of proof, you cannot find the defendant guilty unless you are satisfied beyond a reasonable doubt that at the time of the killing either the defendant had no mental disease or defect or, *901if he did have a mental disease or defect, that he was not as a result of such disease or defect, incapable of knowing what he was doing or of judging that it was wrong to do what you conclude he did. [Id. at 108A.]
If the Commonwealth has sustained its burden of proof as I have outlined it for you, do not for one moment be fearful to return a verdict of guilty in such degree as you determine the Commonwealth has demonstrated to you. If, on the other hand, the Commonwealth has not sustained its burden of proof, then it is your duty to render a verdict of not guilty and you should not be fearful of doing so. [Id. at 117A.]
Thus, in the matrix given them, the members of the jury reasonably could have concluded that had they found the defendant insane, they would have had to acquit him.
Without the third option verdict, the jurors reasonably could have concluded that a verdict of not guilty would have released this man to the streets, to kill again. This is not only a permissible inference, but a reasonable one, and perhaps, under the circumstances of this case, a compelling one. The jury could have found Geschwendt insane, yet at the same time guilty; it could have found him guilty out of fear of releasing him to kill again.
I cannot conclude as a matter of law that the jury could not have so rationalized its verdict. As early as 1860, the Pennsylvania legislature recognized this possible foible in human nature and created a mechanism to discourage, if not totally eliminate, this possibility. That mechanism is the third option verdict of not guilty by reason of insanity, an option that was withheld from the jury in this case. Had the trial court given the jury the option of finding Geschwendt not guilty by reason of insanity, I believe that the jury could have concluded, based on the common sense and life experiences of reasonable lay men and women, that such a verdict would have provided a basis for restricting Geschwendt’s freedom and for not releasing him to the streets.
Moreover, at the time of Geschwendt’s trial, a trial court did not have the power to commit a defendant to a mental institution for treatment unless the jury returned a verdict of not guilty by reason of insanity. See 19 Pa.Stat.Ann. § 1351 (Purdon 1964); 50 Pa.Stat.Ann. § 4413(b) (Purdon 1969); see also Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 178-80, 295 A.2d 320, 321-22 (1972). Thus, if Geschwendt’s jury had returned a verdict of not guilty, without an expression that it was based on insanity, the trial court would have had no choice but to release him from custody.
I recognize that until Mulgrew the trial court had no duty to instruct the jury on the consequences of a verdict of not guilty by reason of insanity, but I believe that the court’s failure in this case to give the jury the option of such a verdict ignored a very important purpose of the statutes: to provide psychiatric treatment for those so mentally imbalanced that society has chosen not to hold them criminally responsible for their acts. By refusing to give the option to the jury, the trial court essentially abdicated its responsibility under Pennsylvania law.
The question then becomes: Did this violation of state law constitute a deprivation of due process under the Fourteenth Amendment? As previously discussed in Sections I-IV, I would answer this question in the affirmative.
VIII.
The gravamen of the due process deprivation in this case is that under the terms of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 Pa.Stat. Ann. §§ 4406(a), 4413(b) (Purdon 1969), an individual found not guilty by reason of insanity was entitled to “commitment to an appropriate facility for examination, observation and diagnosis,” and “[i]f, upon examination, it is determined that such person is in need of care at a facility, the examining physicians or director ... shall immediately report to [the] court which may order the commitment of such person for care and treatment.” The Act of 1860, as amended, 19 Pa.Stat.Ann. § 1351 (Pur-*902don 1964), set forth as a cross reference in 50 Pa.Stat.Ann. § 4413, provided that any commitment to a mental institution for treatment would be for “so long as such person shall continue to be of unsound mind.”
Thus, at the time of Geschwendt’s trial, the consequences of verdicts under all three options could be summarized as follows: (1) verdict of guilty of murder in the first degree: the death penalty or a life sentence in a penal institution; (2) verdict of not guilty by reason of insanity: probable commitment to a mental institution for care and treatment so long as the impaired mental condition continues; and (3) verdict of not guilty simpliciter: Total freedom. An unconditional acquittal.6
Geschwendt argues that the jurors may have found him insane, but because they were unwilling to release him to the streets, they returned a verdict of guilty that resulted first in a death sentence, and later in a life sentence in a penal institution. From this he argues that he was denied both a quantum and a quality of freedom, as embodied in the concept of liberty under the due process clause of the Fourteenth Amendment, because the trial court refused to instruct the jury on the third option as required under Pennsylvania law. I agree.
“Insanity being a defense under Pennsylvania law, due process guarantees all defendants fair opportunity to present the defense.” United States ex rel. Smith v. Baldi, 192 F.2d at 544. The Pennsylvania trial court here did not afford Geschwendt the required fair opportunity to present his only defense. Although the court permitted him to interpose his insanity defense by argument and by testimony, the jury was allowed to consider it only in terms of a verdict of not guilty simpliciter. Because the jury was denied the opportunity to consider it in connection with the provisions of the Act of 1860, as amended, and the Mental Health and Mental Retardation Act of 1966, he was not given a fair opportunity to present the full defense of not guilty by reason of insanity. Accordingly, Geschwendt’s trial did not meet the requirements of the due process clause.
IX.
I would reverse the judgment of the district court and remand the cause with instructions that the court enter an order granting the petition for writ of habeas corpus and directing Geschwendt’s release from custody unless the Commonwealth of Pennsylvania accords him a new trial within a reasonable period of time. Such an order should provide, of course, that even in the absence of a new trial, Geschwendt need not be released if he is civilly committed by the state within a reasonable period of time.
Accordingly, I dissent.
. Byron, Don Juan, Canto I, St. 117.
. Stuart Taylor, Jr., Hinckley Is Cleared But Is Held Insane in Reagan Attack, N.Y. Times, June 22, 1982, at A1; see United States v. Hinckley, 525 F.Supp. 1342, 1345-49, clarified, 529 F.Supp. 520 (D.D.C.1981), affirmed, 672 F.2d 115 (D.C.Cir.1982).
. Dahmer Changes Plea To Guilty But Insane, N.Y. Times, Jan. 14, 1992, at A19; Edward Walsh, Jury To Decide Dahmer’s Culpability, Wash. Post, Jan. 27, 1992, at A3; Dirk Johnson, Milwaukee Jury Says Dahmer Was Sane, N.Y. Times, Feb. 16, 1992, § 1, at 24; see Wis.Stat.Ann. § 971.06(l)(d) (West 1991); State v. Shegrud, 131 Wis.2d 133, 137, 389 N.W.2d 7, 9 (1986), cert, denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 843 (1987).
. On his retirement after 23 years on the Supreme Court, as quoted in the New York Herald Tribune, August 30, 1962, reprinted in Ruggero J. Aldisert, The Judicial Process 627 (1976).
. Notwithstanding the assumption in a few authorities that the Act of 1860, as amended, was "repealed and replaced" by the Mental Health and Mental Retardation Act of 1966, see, e.g., Commonwealth ex ret DiEmilio v. Skovlin, 449 Pa. 177, 180, 295 A.2d 320, 322 (1972), a careful examination of legislative activity reveals that the Act of 1860 remained in effect in the form of 19 Pa.Stat.Ann. § 1351 (Purdon 1964) until its repeal in 1978 by the Act of April 28; 1978, P.L. 202, § 2(a)[377], 42 Pa.Cons.Stat. § 20002(a)[377] (Supp.1982). See 19 Pa.Stat. Ann. §§ 1351-1354 (Purdon Supp.1965 to 1981) (stating that "§§ 1351 to 1354 [are] [Repealed [by] 1978, April 28, P.L. 202, No. 53, § 2(a)[377], effective June 27, 1980"); Commonwealth v. Geschwendt, 500 Pa. 120, 139 n. 3, 454 A.2d 991, 1001 n. 3 (1982) (Roberts, J., dissenting) ("The Act of 1860 was repealed by the Legislature in the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, § 2(a)[377], 42 P.S. § 20002(a)[377] (Supp.1982), and replaced by 42 Pa.C.S. § 1722(a)(1)."). That the annotators of section 4413 of the Mental Health and Mental Retardation Act of 1966 included the Act of 1860, as amended, as a "cross reference" to section 4413 further suggests that the legislature intended the two statutes to co-exist. This cross reference stated: “Proceedings after acquittal on grounds of insanity, see 19 P.S. § 1351." 50 Pa.Stat.Ann. § 4413 (Purdon 1969).
. Under current Pennsylvania law, a defendant asserting a defense of insanity is entitled to an instruction on "four possible verdicts”: guilty, not guilty, not guilty by reason of insanity and guilty but mentally ill. Commonwealth v. Trill, 374 Pa.Super. 549, 567, 543 A.2d 1106, 1115 (1988), appeal denied, 522 Pa. 603, 562 A.2d 826 (1989). The legislature added the fourth alternative verdict in 1982, see 18 Pa.Cons.Stat.Ann. § 314 (Purdon 1983), to allow a jury to find an individual who was mentally ill but not insane at the time of the offense "guilty but mentally ill.” This option provides for both treatment and punishment of the offender. Trill, 374 Pa.Super. at 578, 543 A.2d at 1120.