concurring in part and dissenting in part.
I concur in Parts I and II of the majority's opinion. On the question of whether an instruction on the consequences of a verdict of not guilty by reason of insanity should be given when requested by a defendant, I disagree with the majority’s analysis and conclusion. Therefore, I dissent from Part III of the opinion.
Terrance Frank requested a jury instruction that would have informed the jury of the consequences of a verdict of not guilty by reason of insanity. The district court denied his request. The majority opinion affirms by relying on Ninth Circuit law that is not on point and that pre-dates the passage of the Insanity Defense Reform Act of 1984, 18 U.S.C. §§ 4241-4247. Because this is a case of first impression, however, this court is not bound by pre-Act law on this question.
Prior to the Insanity Defense Reform Act, no federal legislation was in place for commitment of federal court defendants who were found not guilty by reason of insanity. Those defendants were released automatically, and federal officials relied upon states to pursue commitment proceedings. See United States v. McCracken, 488 F.2d 406, 416-17 (5th Cir.1974). Most federal circuits refused to allow trial courts to instruct juries on the consequences of a verdict of not guilty by reason of insanity. See United States v. Portis, 542 F.2d 414, 420-21 (7th Cir.1976); United States v. Alvarez, 519 F.2d 1036, 1047-48 (3d Cir.1975); McCracken, 488 F.2d at 425; United States v. Borum, 464 F.2d 896, 900-01 (10th Cir.1972); Pope v. United States, 372 F.2d 710, 731 (8th Cir.1967), vacated on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); United States v. Evalt, 359 F.2d 534, 546 (9th Cir.1966). The District of Columbia Circuit, however, requires an instruction on the consequences of the insanity verdict, unless the defendant requests otherwise, because the statutory code of the District of Columbia since 1955 has provided for mandatory commitment proceedings for defendants acquitted by reason of insanity. See Lyles v. United States, 254 F.2d 725, 728 (D.C.Cir.1957), cert. denied, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958).
The Insanity Defense Reform Act of 1984 created a comprehensive evaluation and commitment procedure for federal court defendants outside of the District of Columbia who are found not guilty by reason of insanity. See 18 U.S.C. § 4243. The Senate Committee on the Judiciary endorsed the District of Columbia practice of allowing an instruction on the effect of the insanity verdict. S.Rep. No. 98-225, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3422.
The Act itself does not require a jury instruction of any sort. No other circuit has considered this question since the enactment of the Reform Act. But see United States v. Neavill, 868 F.2d 1000 (8th Cir.), vacated, reh’g en banc granted, 877 F.2d 1394 (8th Cir.), appeal dismissed, 886 F.2d 220 (8th Cir.1989) (dismissed upon request of defendant; original opinion held that defendant was entitled to the instruction because of the Act).
The majority refers first to the sanctity of separation between judge and jury func*883tions. The argument, however, that an instruction on the consequences of a verdict of not guilty by reason of insanity violates that sanctity and impedes the function of the jury, is flawed. A jury’s performance of its function is distorted when jurors fear that an insane defendant will be released into society if acquitted.
The sole function of the jury is to consider the evidence to determine whether the defendant is guilty or not, and the appropriate punishment of a guilty defendant is a matter solely for the judge to determine. Juries in federal courts generally are instructed that they should not consider the consequences of the verdict. Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 2095, 45 L.Ed.2d 1 (1975). The instruction is designed to protect the jury from being distracted from its function of judging the facts, from being tempted to compromise its verdict, and from confusing the issues to be decided. See Pope v. United States, 298 F.2d 507, 508 (5th Cir.1962), cert. denied, 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965). The jury should base its verdict on the facts presented at trial, rather than on speculation about the effect of a given verdict on the defendant and on society.
In theory, the instruction preserves the traditional role of the jury. Jurors are unlikely to speculate about the consequences of a verdict of guilty or not guilty; jurors know that one will result in punishment and the other in freedom for the defendant. When the jury has a third option, however, to find a defendant not guilty by reason of insanity, the usual instruction is not adequate. Jurors do not know what the effect of that verdict may be, and may believe incorrectly that the defendant will go free even if he poses a danger to society.
The majority incorrectly assumes that the jury will not speculate about the consequences of a verdict of not guilty by reason of insanity if an instruction about the consequences is not given. Juries can and do speculate about the consequences. The jury foreperson in Terrance Frank’s trial admitted after the trial that the jurors had been afraid that Frank would be released if found not guilty by reason of insanity. Evidence presented at trial had shown that Frank, who had shot four people, killing two and seriously wounding the other two, posed a danger to the community.
The concerns of Frank’s jury are not isolated. One empirical study of juries conducted by the University of Chicago Law School showed that jurors’ concern with what will be done to the defendant if he is acquitted by reason of insanity is “one of the most important factors in jury deliberations.” See Weihofen, Procedure for Determining Defendant’s Mental Condition Under the American Law Institute’s Model Penal Code, 29 Temp.L.Q. 235, 247 (1956).
Many state courts have acknowledged that juries are concerned with the effects of a verdict of not guilty by reason of insanity. See, e.g., People v. Cole, 382 Mich. 695, 172 N.W.2d 354, 366 (1969); People v. Thomson, 197 Colo. 232, 591 P.2d 1031, 1032 (1979); Commonwealth v. Mutina, 366 Mass. 810, 323 N.E.2d 294, 299 (1975); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595, 603 (1976). Jurors often conclude that such a verdict simply sets free defendants who pose dangers to society. A majority of states require or allow the court to give an instruction on the consequences of a verdict of not guilty by reason of insanity. See Annot., 81 A.L.R.4th 659 (1990); The Not Guilty by Reason of Insanity Verdict: Should Juries Be Informed of Its Consequences?, 72 Ky.L.J. 207, 211-12 (1983).
Contrary to the majority’s argument, an instruction on the consequences of the verdict preserves, rather than taints or disrupts, the traditional bifurcated proceedings. It serves the same function as an instruction that sentencing is within the sole discretion of the judge. Failure to give an instruction about the legal consequences of a verdict of not guilty by reason of insanity, when the law requires mandatory commitment proceedings, may have the effect of inducing a guilty verdict. The instruction correctly informs the jurors that the defendant will be incarcerated or *884hospitalized subject to findings by the court and by medical doctors. Jurors know the consequences of verdicts of guilty and not guilty. An instruction on the consequences of a verdict of not guilty by reason of insanity levels the field for the defendant and frees the jurors from their natural concerns about the protection of society so that they may focus on the facts and perform their duty.
No Ninth Circuit precedent precludes us from finding that an instruction on the consequences of a verdict of not guilty by reason of insanity should be given. The majority relies on Evalt v. United States, 359 F.2d 534 (9th Cir.1966). The holding in Evalt, however, only barred an inaccurate and prejudicial statement made by a prosecutor. Id. at 545-46. No tilting of the scales by prosecutorial misconduct is alleged by Frank. Rather, the scales are tilted by the court’s refusal to allow an instruction on the legal consequences of the verdict, which allows the Government to capitalize, however tacitly, on the uncertainty and fear in the minds of jurors who consider the insanity verdict. This undermines the purpose of the insanity verdict.
The insanity defense exists because we recognize that those who are not morally responsible for their conduct should not be punished. The commitment procedures exist because we recognize that those defendants acquitted by reason of insanity should be cared for in institutions that provide psychiatric and psychological services while protecting society. See, e.g., United States v. Chandler, 393 F.2d 920, 928 (4th Cir.1968) (en banc).
The Insanity Defense Reform Act neither prescribes nor prohibits an instruction on the consequences of the verdict. However, because mandatory commitment evaluation procedures now exist, we should move to eliminate the potential prejudice to defendants caused by juror uncertainty about whether defendants acquitted because of insanity will be released into society. We now should adopt the rule of the District of Columbia Circuit: Whenever a defendant properly raises an insanity defense, the jury should be instructed about the legal consequences of a verdict of not guilty by reason of insanity, unless the defendant clearly requests that the instruction not be given. See Lyles v. United States, 254 F.2d at 728-29.
The judgment of the district court should be reversed and the case remanded for retrial.