By Christy Hiance, Associate Editor
To what extent should the Constitution protect concepts of criminal law that have evolved exclusively into state statutory creations?[1]
At the beginning of the Supreme Court’s new term, it was asked to consider a form of that question. Specifically, whether the insanity defense is protected under the Due Process Clause of the Fourteenth Amendment.[2] For centuries, criminal culpability hinged on the ability to exact moral judgment.[3] In a majority of state jurisdictions, the rule persists that the insane lack that capacity.[4] Yet, the insanity defense is birthed from state statutes, and it has been an unfixed, flexible component of the criminal process for an extraordinarily long time.[5] With these considerations in mind, can persistent state construction of the defense under state statutes immunize it from the federal constitution?
The question as to whether the insanity defense is constitutionally compulsory arises from Kahler v. Kansas.[6] In 2008, after learning of his wife’s extramarital affair, Mr. Kahler became abusive toward his wife and estranged toward his two daughters.[7] In November of 2009, Mr. Kahler arrived at his wife’s grandmother’s house and shot and killed his wife, two daughters, and his wife’s grandmother.[8] At his trial, Kahler admitted to the killings; however, he argued that the severe depression from which he suffered at the time of the shootings diminished his mental capacity.[9] Experts testified that Mr. Kahler was incomprehensive of his actions during the killings.[10] Yet, under Kansas law, the jury was disallowed from considering an affirmative insanity defense, forming the basis of Mr. Kahler’s due process argument to the Supreme Court.[11]
Kansas is one of four states which has abrogated the insanity defense from its legislation.[12] In 1995, Kansas promulgated a mens rea approach that allowed defense attorneys to challenge the mens rea element of the charged crime based on mental defect but precluded a separate insanity defense.[13] This means that mentally ill defendants may only argue that they lacked general criminal intent at the time of the crime, which disables them from presenting an affirmative defense of a lack of criminal culpability due to mental defect.[14] Well, what’s the difference?
Justice Stephen Breyer best demonstrates the difference between one of the traditional insanity tests and the mens rea approach.[15] In case one, a defendant believes the victim to be a wolf and kills the victim.[16] In that case, the defendant could defend a murder charge by arguing that he lacked the necessary mens rea since he did not know he killed a human being.[17] In case two, a defendant believes that a wolf has ordered him to kill the victim.[18] In case two, the defendant may not have perceived the wrongfulness of his act; however, he would be unable to challenge the mens rea element alone because he intentionally killed a victim whom he knew as a human being.[19] As Justice Breyer’s hypothetical demonstrates, two mentally ill defendants are subject to dissimilar fates based on the applied legal test.
Yet, as noted by Justice Kavanaugh during oral arguments in Kahler, perhaps the mens rea approach is a way of refining the insanity defense—drawing a line that narrows the defense and subsumes it into mens rea while allowing greater consideration of mental defect at the sentencing phase: “So why can’t a state say, as Justice Alito points out, we’re going to take this away from the jury as a separate defense, put it into mens rea, and then, as Justice Ginsburg points out, have it considered at sentencing? Why is that an unreasonable policy judgment, so unreasonable as to violate due process?”[20] In essence, Kansas’ mens rea approach may be viewed as a reconfiguration of the insanity defense rather than an abolition of it.
In consideration of a baseline constitutional standard, Mr. Kahler’s attorney stressed that a defendant’s culpability hinged on an ability to distinguish between right and wrong, framing that determination as the essential test that stands as a traditional pillar of criminal law.[21] Any criminal law student would be familiar with the standard that embraces the complex moral and philosophical distinction between right and wrong—the M’Naghten test.[22] The M’Naghten test provides an escape from criminal responsibility where, at the time of the crime, the defendant suffered defect or disease of the mind to an extent which the defendant could not possibly understand the difference between right and wrong.[23] To hold in favor of Mr. Kahler, the Court would have to require states to preserve something akin to the M’Naghten rule.[24]
However, the insanity defense has evolved from a notion of the common law to a statutorily-created mechanism of defense.[25] Throughout that evolutionary process, the insanity test has been the product of state legislative tinkering, as Kansas noted in support of its mens rea approach.[26] Far from fixed throughout history, the standards for determining legal insanity have remained malleable, and states have historically been given a wide degree of latitude to select differing tests.
For example, the irresistible impulse test was originally formulated as a supplement to M’Naghten by those critical of a defendant’s understanding of “wrongfulness” as the dispositive question.[27] Rather, the irresistible impulse test centers on a defendant’s volitional abilities, and a minority of jurisdictions have adopted this rule in tandem with the M’Naghten test.[28] Moreover, a substantial number of states have embraced the American Law Institute’s substantial capacity test, which views the defendant’s act in accordance with his or her entire mental capacity.[29] This provides for a scaled assessment rather than an all-or-nothing conclusion.[30] Even then, states have modified the aforementioned test, omitting certain portions of the American Law Institute’s iteration.[31] Other insanity tests that have ebbed and flowed throughout history in the way of legislative validation have included the wild beast test and the Durham test.[32]
Thus, palpably different tests span over 250 years of insanity defense jurisprudence in North America.[33] These tests have adapted in light of the flexibility afforded to the states to develop their own criminal law. A compelling consideration arising out of Kahler is whether the states’ latitude to tinker with an unfixed standard lends the insanity defense to less constitutional protection. Because the historical procedure has made this defense an issue of state construction, it may be difficult for the Court to connect that state process to a result that folds the M’Naghten test within the security of the federal constitution. In any event, the Court has a difficult line-drawing exercise to consider this term with either result potentially revolutionizing criminal law.
Footnotes
[1] The scope of this blog post is narrowed to the consideration of Mr. Kahler’s Due Process Clause argument, although he also raised an Eighth Amendment claim. Kansas maintains that the Eighth Amendment claim has not been preserved. See Brief for Respondent at 9, Kahler v. Kansas, No. 18–6135 (filed Aug. 2, 2018).
[2] Brief for Petitioner at 2, Kahler v. Kansas, No. 18–6135 (filed May 31, 2019).
[3] Transcript of Oral Argument at 3, Kahler v. Kansas, No. 18–6135 (argued Oct. 7, 2019).
[4] Id.
[5] Brief for Petitioner at 21, Kahler v. Kansas, No. 18–6135 (filed May 31, 2019) (citing Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974, 1004–05 (finding that insanity was a “well recognized” defense by the Sixteenth Century)).
[6] Kansas v. Kahler, 410 P.3d 105 (Kan. 2018).
[7] Id. at 113.
[8] Id. at 114.
[9] Id.
[10] Id.
[11] Id. at 124.
[12] Utah, Montana, and Idaho have also explicitly disallowed the insanity defense. Utah Code Ann. § 76–2–305 (Supp. 2983); 1979 Mont. Laws 714; Idaho Code § 18–207 (Supp. 1986).
[13] Brief for Respondent at 7, Kahler v. Kansas, No. 18–6135 (filed Aug. 2, 2018).
[14] See Kan. Stat. Ann. § 22–3220 (2009) (“It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense.”).
[15] Robert Black, Kahler v. Kansas: Can States Abolish the Insanity Defense?, Nat’l Constitution Ctr. (Oct. 8, 2019), https://constitutioncenter.org/blog/kahler-v-kansas-can-states-abolish-the-insanity-defense.
[16] Delling v. Idaho, 133 S. Ct. 504, 505 (2012) (Breyer, J., dissenting from denial of certiorari).
[17] Id.
[18] Id.
[19] Id.
[20] Transcript of Oral Argument at 20–21, Kahler v. Kansas, No. 18–6135 (argued Oct. 7, 2019).
[21] Amy Howe, Argument analysis: Justices open new term with questions and concerns about insanity defense, SCOTUSblog (Oct. 7, 2019, 3:58 PM), https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.
[22] Jean K. Gilles Phillips & Rebecca E. Woodman, The Insanity of the Mens Rea Model: Due Process and the Abolition of the Insanity Defense, 28 Pace L. Rev. 455, 468 (2008) (citing M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843)).
[23] Id.
[24] Noah Feldman, The Supreme Court Should Let the States Define Insanity, Bloomberg Op. (Oct. 7, 2018, 8:00 AM), https://www.bloomberg.com/opinion/articles/2019-10-07/supreme-court-should-let-insanity-evolve-in-kahler-v-kansas.
[25] See generally Jonas Robitscher & Andrew K. Haynes, Symposium, In Defense of the Insanity Defense, 31 Emory L.J. 9, 13 (1982) (outlining legislative modification of the insanity defense).
[26] Brief for Respondent at 39, Kahler v. Kansas, No. 18–6135 (filed May 31, 2019) (citing Foucha v. Louisiana, 504 U.S. 71, 88–89 (1992)).
[27] Russell D. Covey, Temporary Insanity: The Strange Life and Times of the Perfect Defense, 91 B. U. L. Rev. 1597, 1623 (2011).
[28] Wayne R. LaFave, Substantive Criminal Law § 7.3(a) (3d ed. 2017).
[29] Margaret E. Clark, Comment, The Immutable Command Meets the Unknowable Mind: Deific Decree Claims and the Insanity Defense After People v. Serravo, 70 Denv. U. L. Rev. 161, 165 (1992) (citing Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law, 312, 330 (2d ed. 1986)); Anne D. Brusca, Note, Postpartum Psychosis: A Way Out for Murderous Moms?, 18 Hofstra L. Rev. 1133, 1152 n.103 (1990) (discussing states’ adoption of the American Law Institute Model Penal Code test).
[30] Fernand N. Dutile & Thomas H. Singer, Commentary, What Now for the Insanity Defense?, 58 Notre Dame L. Rev. 1104, 1107 (1983).
[31] Id.
[32] See Normal J. Finkel, Commonsense Justice and Jury Instructions: Instructive and Reciprocating Connections, 6 Psychol. Pub. Pol’y & L. 591, 603 (2000) (mentioning the wild beast test, M’Naghten test, M’Naghten plus the irresistible impulse addition, Durham, and the American Law Institute test as insanity test instructions that had historic or current play); see also Brief for Respondent at 32–33, Kahler v. Kansas, No. 18–6135 (filed Aug. 2, 2018) (discussing the variety of tests used to define insanity throughout time).
[33] Jennifer Skeem & Stephen Golding, Describing Jurors’ Personal Conceptions of Insanity and Their Relationship to Case Judgments, 7 Psychol. Pub. Pol’y & L. 561, 564 (2001).