In the midst of a pandemic, the Supreme Court, in a 6-3 decision written by Justice Elena Kagan, solved the age-old law school question of how best to frame the insanity defense. The M’Naghten rule? The irresistible impulse test? The Durham rule? Forget about it. Kansas don’t need no stinkin’ rule, and in Kahler v. Kansas, the Supreme Court says that’s just fine.
This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement.
At Volokh Conspiracy, my old buddy Orin Kerr has come out of hiding in his bunker in an unknown location to run through the majority’s rationale.
Under this standard, you look to the common law treatises and authorities and ask whether a particular legal rule is so “old and venerable — so entrenched in the central values of our legal system—as to prevent a State from ever choosing another.”
Of course, the trick in applying that kind of standard is how much clarity and specificity is required before you say a particular rule is “entrenched.” For example, the authorities may all agree that there is a particular doctrine, but they may disagree on the specifics of what the doctrine is. What then?
And as every law student knows, while the insanity defense may be “old and venerable,” it’s also been subject to constant tweaks and refinements, particularly as our understanding of mental illness has improved, such that the test is hard to pin down, and is framed in a multitude of refinements from state to state and over the years. While the concepts may be entrenched, the nuts and bolts still move freely.
The problem comes with the second step. According to the Court, Kansas’s approach to insanity isn’t out of bounds. It fits within the broad principle established. That’s true for two reasons, the Court says. First, Kansas has a type of insanity defense: The defense can put on evidence of mental illness to show that he lacked an element of the crime. Second, Kansas law considers the principles of the insanity defense at the sentencing stage instead of at the crime definition stage. Under Kansas law, defendants can offer evidence of mental illness to argue for a lesser sentence, and judges have the discretion to replace a prison term with a period of commitment in a mental health facility.
Is this just the Kansas version of a tweak to the insanity defense? Therein lies the problem, as it’s not a defense at all. Justice Breyer, in dissent, explains that insanity, however defined, undercuts the mens rea element of the crime, and if a defense to an element is proven such that the element of the crime is not, then the crime has not been committed.
The issue isn’t merely where the defendant ends up, prison or an asylum, but whether he is guilty of the crime at all. The former is mitigation, an argument to diminish the sentence imposed for the commission of a crime. This isn’t at all the same as proof of a defense to an element of the crime, such that the crime itself was not committed.
Orin offers an excellent analogy to make this point.
Imagine a defendant is charged with failure to obey a police officer’s order. His defense is that he is deaf and did not hear the order. Under ordinarily rules of criminal law, the defense is permitted to put on evidence that he is deaf and didn’t hear the order. But we wouldn’t say that the law enacts a “deafness defense.” Instead, we would see that as just the ordinary rules of liability. The government has to prove the elements of the crime beyond a reasonable doubt, and that’s true whether the evidence for or against those elements existing happens to involve mental health evidence (in Kahler) or evidence of deafness (in this example).
Of course, Orin goes on to find the rationale that insanity remains available to mitigate sentence more persuasive, failing to distinguish between proof of every element of the crime and evidence to modify the sentence from warehousing in prison to warehousing in a secure mental health facility.
What this decision effectively accomplishes is a state’s elimination of a factual defense to a factual allegation necessary to prove an element of the crime. The state alleges the mens rea, which is proved as the natural inference drawn by the commission of an act, but the defense can’t rebut the allegation because the defendant was incapable of formulating that mens rea due to mental illness.
This isn’t the first time the state has chosen to remove factual defenses from the defense arsenal. Remember the “gay panic” defense? Much as it may be obnoxious and politically unacceptable, that didn’t make it factually untrue.
At the same time prosecutors are being more imaginative in their extension of crimes, such as drunk-driving homicide or drug overdoses as murder, the Supreme Court is chipping away at the ability to challenge the elements of the crime by factual evidence. That an argument can be made in mitigation at sentence offers little comfort if the defense can’t challenge an element of the crime, and he stands convicted of a crime that didn’t factually happen.