Kahler v. Kansas, 140 S. Ct. 1021 (2019)
In the famous 1843, British M’Naghten’s Case, 10 Cl. & Fin. 200, a defendant could plead the insanity defense under the “cognitive incapacity test” or the “moral incapacity test.” Kahler v. Kansas, 140 S. Ct. 1021, 1022 (2019). These two tests encompassed what would become known as the M’Naghten test, which became widely popular and adopted by many states in America throughout the 19th century. Id. at 1024. The M’Naghten test states that a defendant must be acquitted if he “labour[ed] under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing [cognitive incapacity test]; or,  if he did know it, that he did not know he was doing what was wrong [moral incapacity test].” Id. at 1038.
Kansas law only recognizes the cognitive incapacity test and rejects the moral incapacity test. Id. In fact, Kansas does not allow the insanity defense to be used other than by way of the cognitive incapacity test: "[I]t shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged . . . Mental disease or defect is not otherwise a defense." Kan. Stat. Ann. §21–5209 (2018 Cum. Supp.) Id. at 1025.
James Kahler was charged with capital murder for the shooting deaths of four relatives. Id. at 1027. Kahler alleged his actions were the result of a mental illness, which prevented him from knowing his actions were wrong. Id. He argued Kansas law violated the Fourteenth Amendment's Due Process Clause of the United States Constitution by prohibiting defendants from utilizing the moral incapacity test as a means to plead insanity. Id. The Kansas trial court disagreed. Id. Kahler was subsequently convicted of murder and sentenced to death. Id. Kahler appealed to the Kansas Supreme Court, which rejected Kahler's due process argument. Id. The United States Supreme Court agreed to hear the case on a Writ of Certiorari. Id.
The Court affirmed the Kansas law does not violate due process for denying defendants the moral incapacity test under the insanity defense. Id. Justice Kagan conveyed the opinion of the Court, joined by Justices Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. The majority argued the Constitution's Due Process Clause does not require states to include the moral incapacity test as part of the insanity defense. Id. It reasoned that a state law about criminal liability encroaches on due process only if it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. This standard is guided by “historical practice.” Id. The Court ruled in previous cases that what constitutes a mental illness has "evoked wide disagreement" and "[n]othing could be less fruitful" than to define a specific “insanity test in constitutional terms.” Id. at 1028. In other words, there has never been a fundamental tradition that the moral capacity test is a requirement of the insanity defense. Id.
In fact, decades ago, Congress debated whether to adopt an intent-based approach as the federal insanity defense rule. Id. at 1037. Both the Department of Justice and the American Medical Association preferred the intent-based version of the insanity rule. Id. The American Psychiatric Association showed no preference for any specific test. Id. The Psychiatric Association once noted that "insanity is a matter of some uncertainty." Id. Ultimately, Congress decided to follow the M’Naghten test. Id. However, the debate in Congress over the insanity test demonstrates the discord pertaining to a specific insanity defense rule. Id.
Even after M’Naghten, states used different formulas for the insanity defense. Id. at 1024. The Court made it clear in Clark v. Arizona, 548 U. S. 735 (2006), that “History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle.” Id. No one type of the insanity defense has become so deep-rooted in American law to be declared “fundamental.” Id. The moral capacity test is merely permitted as a test for the insanity defense—it is not required. Id.
Kansas’s insanity law nullifies criminal liability. Id. at 1030. Kansas law allows a defendant to plead the insanity defense if “the defendant, as a result of mental disease or defect, lacked the culpable mental state required” for a crime. Id. This is constitutionally sound: It allows a defendant to offer psychiatric evidence and other evidence of mental illness as a defense. Id. In particular, Kansas law allows a defendant to proffer mental health evidence to demonstrate his mental illness prevented him from being able to form the necessary intent to commit a crime. Id. To get its point across, the majority mentioned that in Clark, the Court found constitutional an Arizona law not recognizing the first prong of M’Naghten (cognitive incapacity test) but only recognizing the second prong (moral incapacity test). Id. at 1030-1031. The only difference between the Arizona law and the Kansas law, is that Kansas adheres to the first prong of M'Naghten (cognitive incapacity test) and rejects the second prong (moral incapacity test). Id. at 1031
The majority also found it significant that Kansas allows a defendant to offer relevant mental health evidence at the time of sentencing. Id. At sentencing, a defendant can provide evidence that due to his mental illness, he was unable to decipher right from wrong, he was unaware that his behavior violated the law, he lacked the ability to control his actions, or his mental illness caused him to commit the crime for any other reason. Id. To put it another way, the moral incapacity evidence that Kansas prohibits from being used to plead insanity, can effectively be used to diminish guilt and reduce punishment. Id. Kansas allows a judge to use this type of evidence to sentence a defendant to a mental health facility, which is the same outcome he would receive if he was acquitted based on insanity due to cognitive incapacity. Id. In sum, Kansas does not prohibit mental health evidence that is outside the scope of its insanity defense, it merely directs the evidence to be presented at the time of sentencing. Id.
When taken together with Kansas's intent-based insanity defense, Kansas's sentencing formula belies Kahler's claim that Kansas has "abolish[ed] the insanity defense entirely." Id. Furthermore, Kahler cannot demonstrate the moral capacity test is "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 1032. As a result, the constitutionality of Kansas's insanity defense is affirmed. Id.
Justice Breyer wrote the dissent, joined by Justices Ginsburg and Sotomayor. The minority contended that Kansas essentially did away with a “core” of the insanity defense that has been around for seven hundred years of Anglo-American history. Id. at 1038. The concept that a defendant can plead the insanity defense if he is unable to comprehend the immorality of his actions due to mental illness, is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. Furthermore, Kansas once recognized the M’Naghten test as the “cardinal rule of responsibility in the criminal law.” Id. Kansas “steadfastly adhered to that test” for more than a century. Id. However, the Kansas Supreme Court noted in Jorrick v. Kansas, 269 Kan. 72, 82 (2000): Kansas “legislatively abolish[ed] the insanity defense” in 1995. Id. As a result, the cognitive incapacity test became the only test available to a defendant as a means of pleading insanity. Id. In other words, if a defendant intended to commit a crime, his mental illness could not be used as a defense. Id.
The minority conceded that English and early American legal authorities have different interpretations of the exact language of the insanity defense but argued the underlying principle has always been the same: A defendant who commits a crime due to a mental illness which renders him unable to be held morally responsible, cannot be guilty of a crime. Id. at 1039. Early American courts followed this principle. Id. States codified this principle. Id. Today, the vast majority of states adhere to this principle even when a defendant intends to commit a crime. Id. Although it is true that after M’Naughten, states implemented different legal standards for the insanity defense, these standards broadened the insanity defense, they did not limit it. Id. at 1045.
However, in the beginning of the 20th century, many states began to constrict the legal standard of the insanity defense, but their supreme courts ruled the restrictions unconstitutional. Id. at 1046. The Supreme Court of Mississippi made this clear in 1931: The "common law proceeds upon an idea that before there can be a crime there must be an intelligence capable of comprehending the act prohibited, and the probable consequence of the act, and that the act is wrong.” Id. Today, 45 States, the Federal Government, and the District of Columbia include the defendant’s ability to recognize the wrongfulness of his actions as part and parcel of the insanity defense. Id.
Although it is true that in Clark, the Court upheld the Arizona law abolishing the first prong of M'Naghten (cognitive incapacity), by default, an individual who meets the second prong (moral incapacity) of M’Naghten, would also meet the first prong (cognitive incapacity). Id. at 1049. Consequently, Arizona's law does not abolish the core of the insanity defense by removing the first prong of M'Naghten from its insanity requirement. Id.
Furthermore, the arbitrary application of Kansas’s insanity defense law caused the minority concerns. Id. at 1038. Kansas’s insanity law treats two people suffering from mental illness in two different ways. Id. For example, if an insane defendant in Kansas had a delusion that a human being was a dog and intentionally killed the human being, he would be acquitted of murder because he did not intend to kill the human being. Id. If another insane defendant killed a human being because he had a delusion a dog commanded him to kill the human being, he would not be eligible for the insanity defense even though there is no moral difference between these two mentally ill defendants. Id.
Moreover, mental illness seldom prevents a person from forming an intent to commit a certain act. Id. at 1048. Instead, it interferes with a person’s ability to comprehend reality, which oftentimes leads him to commit acts he is not aware are morally wrong. Id. For example, the American Psychiatric Association explains that individuals with mental illness may suffer delusions, which cause them to believe that others are trying to harm them or that God has commanded them to commit certain acts. Id. These delusions cause the mentally ill to use violence but do not negate their intention to carry out a specific act. Id. In sum, the Kansas law that abandons the moral incapacity test under
M’Naghten, necessitates the convictions of a multitude of mentally ill defendants who would otherwise be acquitted under the traditional insanity defense. Id. This “offend[s] the deeply entrenched and widely recognized moral principles” of our criminal justice system. Id.
Three Reasons Why the Majority Got It Wrong
The Court got it wrong for three main reasons: First, the moral incapacity test of the insanity defense is a fundamental right. Second, the Court's decision unfairly penalizes the insane. Third, the Court authorizes the arbitrary application of the insanity defense.
I. Moral Incapacity Test is a Fundamental Right
The moral incapacity analysis of the insanity defense is firmly rooted in the traditions and conscience of society such that it has become a fundamental right. Throughout Anglo-American history, the moral incapacity-based insanity defense has always applied to individuals, who due to a mental illness or defect, were unable to understand the wrongfulness of their actions. As the minority pointed out, throughout British and American history, the mentally ill who committed crimes while oblivious to the fact their actions were morally blameworthy, could not be convicted of a crime.
The Court appears to focus on the fact there has never been unanimously agreed upon, specific language clearly defining the insanity defense. It uses this as evidence that no particular version of the insanity defense is a deeply entrenched tradition that constitutes a fundamental right. However, this is a narrow way of viewing the issue. Although it is true that in Anglo-American history, a clear, specific insanity defense has never been articulated and unanimously agreed upon throughout all times—letter for letter, word for word—legal authorities in early and modern history have always recognized the insanity defense encompasses a mentally ill individual’s inability to understand the moral wrongfulness of his actions.
II. The Court Unjustly Punishes the Insane
The Court's decision effectively punishes insane defendants for being insane. Insane individuals do not choose to be mentally ill. They did not wake up one day and decide to be insane. They try to live their lives the best they can with the hands they were dealt. They are of the most vulnerable members of society. They should be helped and protected. However, instead of protecting them, the Court allows states to convict them, brand them as criminals, let them rot in prison for the rest of their lives, and in Kahler’s case, be murdered by a state government. Why? Merely because they have mental illnesses they cannot control.
In many cases, mental illnesses cause the insane to irrationally commit acts that are considered crimes based on their mistaken beliefs of reality but would not be considered crimes if reality existed as they perceived it. For example, if an insane individual, through no fault of his own, has an insane delusion that someone is going to use imminent deadly force on him and therefore kills that person, he would be guilty of murder in Kansas. In contrast, if a sane person reasonably believes that someone is going to use imminent deadly force on him and therefore kills that person, he would be acquitted on a self-defense theory. The Court deems this outrageous result “due process.” This is unjust, sad, illogical, and plain wrong.
III. The Court Condones Arbitrary Implementation of the Insanity Defense
The Court sanctions an arbitrary disparity in the way insane defendants are treated, not only in Kansas but across the country as well. For example, an insane defendant who kills someone due to moral incapacity in Kansas, is arbitrarily barred from pleading the insanity defense, and like Kahler, he can be convicted of murder and sentenced to death. A second insane defendant who kills someone due to moral incapacity right across the Kansas border in Missouri, ten yards away from where the first defendant killed someone, would be acquitted of murder. Why? Merely because the second defendant killed someone a mere 10 yards away from the first defendant.
The Court bends over backwards in an attempt to give the impression that under Kansas law, insane defendants lacking moral capacity who are not allowed to plead insanity and subsequently convicted of murder, are more or less, treated similar to insane defendants lacking moral capacity in other states who are allowed to plead insanity and acquitted of murder because the former can argue before a judge for mitigation of punishment based on their moral incapacity. This is perhaps the flimsiest argument the Court adopts. A convicted murderer who is at the complete mercy of a judge or jury to be sentenced to life in prison or given the death penalty, is not equal or similar to an acquitted defendant who cannot be sent to prison or sentenced to death.
Three Solutions to Protect the Rights of the Insane
Three primary solutions must be implemented to shield the rights of the insane: First, Congress must expand the scope of the insanity defense. Second, Congress must require federal and state prosecutors to prove a defendant is sane beyond a reasonable doubt. Third, Congress, the Federal Government, and state governments need to work hand in hand to help rehabilitate the mentally ill.
I. Congress Must Expand the Insanity Defense
Congress must immediately pass legislation proclaiming M'Naghten to be the bare minimum insanity standard states must follow. However, this initial step is not enough. Congress must go beyond this. Congress must vigorously work to engage mental health experts and mental health organizations across the country in order to compile every legitimate insanity test that would render a defendant's actions not blameworthy. Congress must then adopt all the various tests and consolidate them into codified standards that the Federal Government and states must adhere to. This would help ensure that insane defendants are not imprisoned or sentenced to death for mental defects they have no control over. It would also remove the arbitrary application of the insanity defense that the Court allows for today.
II. The Prosecution Must Prove a Defendant's Sanity
Congress must pass a bill requiring federal and state prosecutors to prove beyond a reasonable doubt that a defendant is sane. This was the federal standard and the state standard before John Hinckley Jr. was acquitted by the insanity defense of the attempted assassination of Ronald Reagan in 1982. Shortly after Hinckley’s acquittal, the Insanity Defense Reform Act of 1984 was passed, which shifted the burden from the Federal Government having to prove beyond a reasonable doubt a defendant was not insane, to the defense having to prove the defendant is insane by clear and convincing evidence. Eventually, two-thirds of states followed suit by shifting the burden of proving insanity from the prosecution to the defense, mostly by a preponderance of the evidence standard. This must change. An insane defendant should not have to prove his own insanity. This burden should fall squarely on the shoulders of the prosecuting body.
III. Congress, the Federal Government, and States Must Strive to Rehabilitate the Insane
Congress, the Federal Government, and state governments need to work together to enact and effectuate laws aimed at treating, rehabilitating, and caring for mentally ill and insane individuals. Perhaps if the mentally ill get the proper care they deserve instead of being stigmatized and marginalized, there would be fewer instances of them accused of committing crimes. American society, in contrast to other Western societies, places a focus on retribution and vengeance instead of compassion and mercy for the less fortunate and those accused of crimes. To be clear, many individuals in America who are accused and even convicted of crimes, are absolutely innocent. Furthermore, by often calling for blood and punishment, American society has damaged itself by perpetuating a cycle of anger and violence by its neglect and disregard for its marginalized members of society. If America is going to prosper, it must first become more patient, tolerant, and understanding of its citizens who need help; it must then work to help them.