{"id":12181,"date":"2020-04-03T16:34:05","date_gmt":"2020-04-03T20:34:05","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12181"},"modified":"2023-12-20T06:00:21","modified_gmt":"2023-12-20T11:00:21","slug":"with-decision-in-kahler-scotus-upholds-narrowed-insanity-defense","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/with-decision-in-kahler-scotus-upholds-narrowed-insanity-defense\/","title":{"rendered":"With Decision in Kahler, SCOTUS Upholds Narrowed Insanity Defense"},"content":{"rendered":"

Last Monday, the Supreme Court issued its decision<\/a> in Kahler v. Kansas<\/em> and upheld Kansas\u2019s significant narrowing of the insanity defense. Justice Kagan\u2014joined by the five conservative Justices\u2014wrote for the majority, rejecting Kahler\u2019s claim that Kansas had impermissibly narrowed the insanity defense such that it violated due process.<\/p>\n

The insanity defense has a rich history in the Anglo-American tradition but its form has changed over time and current state law is a patchwork. The most influential formulation of the insanity defense is M\u2019Naghten\u2019s<\/em> Rule, set forth in England in 1843. Under M\u2019Naghten<\/em>, insanity is a complete defense (1) when a defendant\u2019s illness leaves him unable to distinguish right from wrong (moral capacity) or (2) when a defendant\u2019s illness leaves him unable to understand the nature or quality of his act (cognitive capacity). In the case of murder, a defendant who lacks only moral capacity understands that he is killing another person but\u2014because of mental illness\u2014believes that the killing is morally justified, perhaps because he has a delusion that God has decreed it.\u00a0 A defendant who has the moral capacity but lacks cognitive capacity knows that it would be morally wrong to murder but does not understand that he is killing a person, for example because he has a delusion that the victim is a dragon.<\/p>\n

Kahler, who shot his estranged wife, her grandmother, and his two daughters, claimed<\/a> that mental illness prevented him from knowing right from wrong when he pulled the trigger. But Kansas, by statute<\/a>, allows mental illness as a defense only when it prevented the defendant from having the \u201cculpable mental state required as an element of the crime charged\u201d and did not allow for a moral incapacity defense. Thus, only the dragon-slayer \u2013 and not the killer acting according to a deific decree nor Kahler\u2014would have a defense of insanity in Kansas.<\/p>\n

Kahler argued that eliminating M\u2019Naghten<\/em>\u2019s<\/em> moral capacity prong of the insanity defense violated due process. But, the bar for whether a state criminal liability law violates due process\u2014established in Leland v. Oregon<\/em><\/a>\u2014 is high. Such a law violates due process only if it \u201coffends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.\u201d<\/p>\n

Though the majority and Justice Breyer\u2019s dissent both undertake a historical analysis to answer this question, they reach different conclusions. Kagan agrees that the insanity defense \u2013 in some form\u2014has been recognized for centuries but rejects the argument that there is a \u201csingle canonical formulation of legal insanity.\u201d She points to the volitional capacity test\u2014commonly added <\/a>to M\u2019Naghten<\/em> beginning in the mid-19th<\/sup>century\u2014 that allowed defendants to escape liability if their crime was the result of irresistible impulses and the later innovation to simply ask whether the criminal act was the product of the defendant\u2019s mental illness, among other variations. Thus, she finds only a general principle, which Kansas\u2019s narrowed insanity defense does not violate. She argues that this is strengthened by the fact that Kansas allows mental illness generally to be accounted for at sentencing.<\/p>\n

The dissent finds more than a general principle: it locates moral capacity in the irreducible core of the insanity defense. The preeminent common-law jurists, Breyer finds<\/a>, linked the affirmative defense of insanity to the absence of reason, free will, and moral understanding, with the metaphors of the wild beast and the infant underscoring the logic that those who were incapable of \u201cperceiving the wrongful character of [their] act[s]\u201d could not be liable for them. Breyer argues that it is contrary to this historical legacy to provide a defense to the mentally ill defendant who mistakenly believes he is shooting a dog when he shoots a man but deny that defense to the defendant who believes a dog has commanded him to shoot a man.<\/p>\n

A further twist in Breyer\u2019s argument is that what Kansas leaves defendants with is nothing more than rebutting the mens rea<\/em> component of the government\u2019s case, which is always available to defendants. Thus, the insanity defense that has survived through the centuries presumably must do more.<\/p>\n

Breyer also notes that giving judges the discretion to consider mental illness at sentencing after a guilty verdict is very different from the complete defense of insanity, which gives people a right not to be punished. That a mentally ill defendant might be placed in a hospital setting after his conviction does not change the fact that this right was denied nor does it eliminate the stigma of a guilty verdict.<\/p>\n

The court\u2019s decision in Kahler<\/em> leaves open several questions. Does Kansas\u2019s narrowing of the insanity defense violate the Eighth Amendment\u2019s prohibition on cruel and unusual punishment? (That question was not properly before the court in Kahler<\/em>.) Could complete abolition of the insanity defense survive a due process challenge? Kagan does not think so and seems intent on telegraphing this to the states, grounding much of her opinion in her agreement<\/a> with the dissent that insanity has been recognized \u201cfor hundreds of years\u201d as \u201crelieving responsibility for a crime.\u201d Whether states heed her message \u2013 and what courts do in response\u2014remains to be seen.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Last Monday, the Supreme Court issued its decision in Kahler v. Kansas and upheld Kansas\u2019s significant narrowing of the insanity […]<\/p>\n","protected":false},"author":50,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3],"tags":[],"coauthors":[1671],"class_list":["post-12181","post","type-post","status-publish","format-standard","hentry","category-amicus"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-3at","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12181","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/50"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=12181"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/12181\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=12181"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=12181"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=12181"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=12181"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}