Can the dilemma resulting from the Hinckley verdict be resolved without a major retreat from the shield of protection that has been built around civil rights? The reaction of the public against the failure of a jury to convict a would-be presidential assassin has been severe and sweeping. Yet protection of the rights of accused persons is still a cherished objective. Is there any hope of reconciling these clashing tides?

Actually, the clash between upholding civil rights and the current demand for abolition of the plea of not guilty by reason of insanity is not as serious as it may seem at first glance. The practice of allowing accused persons to plead insanity as a defense came into being because of the rational and humane conclusion that the state should not punish a person for committing an offense that, because of his mental condition, he could not know to be wrong. But punishment of criminals as a matter of retribution is now a relic of past ages. Modernized systems of justice are aimed at the correction of criminal conduct for the benefit of the criminal as well as society.

Punishment is primarily related to sin. In most religious beliefs, it is the prerogative of God to punish moral deviations. The secular state finds it necessary to cope with and restrain people who violate its laws, but the objective is correctional and protective. The state must act to shield the public from the depredations of lawless individuals and to try to turn the offender himself to useful pursuits.

This shift from punishment to rehabilitation and public safety has been a favorite theme of Chief Justice Warren Burger for more than a decade. His thesis was set forth in 1970 in an address to the American Bar Association. "The administration of criminal justice in any civilized country," he said, "must embrace the idea of rehabilitation and training of the guilty person as well as the protection of society. In recent years, we have been trying to change our thinking in order to de-emphasize punishment and emphasize education and correction."

Since then, the chief justice has been carrying on a vigorous campaign to modernize and humanize American prisons so as to make them useful instruments of correction instead of hell holes serving largely the purpose of punishment. One of his projects is improvement of the caliber and training of personnel in correctional institutions through a National Academy of Corrections. Another is the expansion of educational programs available to men and women behind bars.

If the initial steps of the Burger program are carried out, every prison inmate would be taught to read and write and trained in some skilled or semi-skilled craft. Terms of imprisonment would be shortened for achievements in these programs, as they are now for good behavior. A prisoner could learn his way to freedom and, in the process, might well learn to sustain himself without further resort to crime. Human rehabilitation would be further encouraged by improved communications enabling the inmates to discuss their grievances, by recreational programs, by release for outside work under safeguards and by much greater use of voluntary advisers and companions when the prisoner makes his adjustment to civilian life.

No one can rationally assume that a shift from "punishment" to "rehabilitation" would automatically turn offenders into trusted and useful citizens. Some disorganized, hostile and socially warped human beings will doubtless always inflict critical problems upon the majority that wants to live in peace and safety. But even in the case of these offenders, the state need not be in the business of inflicting punishment as such. It can offer the incorrigibles a better way of life, as a parent does with a wayward child, and if rehabilitation efforts fail, the state must necessarily fall back upon measures essential to the public safety.

The experience of several European countries indicates that the re-education route can make a difference. Even in this country, where prisons are usually incredible wastelands, some rehabilitative efforts have gone far enough to indicate that rewarding improvements can be made.

With the transition from a punitive to a rehabilitative system, the plea of not guilty by reason of insanity could be entirely discarded, for the defendant's state of mind when the crime was committed would be irrelevant. Of course, the courts would continue to be concerned with the offender's mental condition by way of determining what kind of rehabilitative effort would be needed. Offenders with acute psychiatric problems would be sent to mental hospitals for treatment under ample safeguards to protect the public interest. This would involve no irrational or unconstitutional impingement on personal rights. Indeed, mentally unbalanced persons who have not been involved in crime are now routinely committed to psychiatric hospitals for protection of themselves and the public. It would be absurd distortion of logic to say that a mentally unbalanced person may avoid such action by committing a crime and pleading not guilty by reason of insanity.

Certainly some action must be taken to avoid the use of insanity pleas to exonerate irresponsible people who attempt to murder the president or other persons. In such instances, the demands of public safety claim a high priority. Surely the "due process of law" guaranteed to every person by the Constitution is satisfied if he is given a fair trial on the basis of factual testimony about the offense and is then, if convicted, subjected to the treatment best calculated to correct his mental aberrations. Judges or parole boards could be reasonably trusted to decide, with the aid of medical testimony and due consideration of the public safety, when such treatment should end and what additional requirements such as education and retraining of the defendant should be imposed.

In recent years, the courts have gone to unprecedented extremes in protecting the rights of individuals accused of crime. Most of these additional safeguards are sound and should be preserved in spite of the burden they place upon the courts. But no such concern has been manifested for the safety of the public or the welfare of convicted persons once they have passed the portals of a prison. The appalling cost of these neglected areas of public policy is evident in our losses to crime running into billions of dollars and in the fact that two-thirds of our prison population consists of repeaters who respond to enforced idleness and repression by more crime. Much might be gained by completely disavowing the punishment concept in favor of the rehabilitation and public safety concepts under which the plea of not guilty by reason of insanity would become an anachronism.

In any event, Congress must face the necessity of relieving the judicial system from the mockery resulting from the Hinckley verdict. The country simply cannot tolerate a rule that makes the law an accessory to violence in utter disregard of the basic human right to life.