Am I Going Insane or Did Kansas Abolish the Insanity Defense? [Kahler v. Kansas, 140 S. Ct. 1021 (2020).]
Emily R. Brandt | March 5, 2021 | PDF Version (203 KB)
Summary: The U.S. Supreme Court held that due process does not require states to adopt an insanity test that turns on a criminal defendant’s ability to recognize that their crime was morally wrong. A criminal defendant faces a high bar because a state rule about criminal liability violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people. The scope of criminal liability is complex and ever-changing, so its regulation is best left to states. The insanity defense is particularly complex due to the ever-evolving understandings of mental illness. Therefore, a particular version of the insanity defense cannot be constitutionalized.
However, the appropriate guiding factor in a due process analysis is history. Here, the Court analyzed the due process claim using complexity as its guiding factor. The complexity of a legal issue cannot replace the established rule that fundamental rights and liberties are those that are deeply rooted in this Nation’s history and tradition, implicit in the concept of ordered liberty, and essential to maintaining a fair and enlightened system of justice.
Preferred Citation: Emily R. Brandt, Am I Going Insane or Did Kansas Abolish the Insanity Defense?, 60 Washburn L.J. Online 45 (2021), https://washburnlaw.edu/wljonline/brandt-insanity.
I. Introduction
The Due Process Clause of the Fourteenth Amendment protects fundamental rights and liberties that are “deeply rooted in this Nation’s history and tradition,” “implicit in the concept of ordered liberty,” [1] and essential to maintaining “a fair and enlightened system of justice.”[2] In Kahler v. Kansas, the U.S. Supreme Court held that due process does not require Kansas—or any other state—to adopt an insanity test that considers whether a defendant has the capacity to “recognize that his crime was morally wrong.”[3] This Comment argues that (1) an insanity defense that considers whether a defendant was morally blameworthy should be constitutionalized as a fundamental right and (2) the Court went beyond the proper due process analysis by ruling that, even if it were possible to formulate a constitutional baseline for an insanity test that considers moral blameworthiness, the Court would not do so because of the complexity of the issue.
II. Background
A. Kahler v. Kansas
In 2008, the defendant, James Kahler, was part of a seemingly perfect family.[4] He and his wife, Karen, were successful in their careers and had two teenage daughters, Emily and Lauren, and a 9-year-old son, Sean.[5] By 2009, all of that changed. Karen filed for divorce and took the children, and Kahler moved in with his parents after losing his job.[6]
On November 28, 2009, Kahler traveled to the residence of Karen’s grandmother in Burlingame, Kansas.[7] Kahler entered the residence with a gun.[8] Karen and Sean were in the kitchen when Kahler walked in and started shooting.[9] Kahler let his son flee but shot Karen twice.[10] Then, Kahler made his way through the residence, shooting Karen’s grandmother and both of his daughters.[11] Kahler’s daughter Emily was found dead at the scene.[12] Karen and Lauren died in the hospital that night, and Karen’s grandmother died a few days later.[13]
The state charged Kahler with capital murder.[14] Prior to trial, Kahler filed a motion that argued “Kansas’s treatment of insanity claims violates the Fourteenth Amendment’s Due Process Clause.”[15] He argued that Kansas abolished the insanity defense by allowing the conviction of a defendant who did not have the moral capacity to tell the difference between right and wrong.[16] The district court denied Kahler’s motion, but stated that he was free to present psychiatric evidence showing his severe depression made him incapable of forming the intent to kill.[17] At trial, the jury convicted Kahler of capital murder.[18]
The court permitted Kahler to offer additional evidence of his mental illness, including his lack of moral capacity, only at the sentencing phase of the trial.[19] However, the jury sentenced Kahler to death.[20] Kahler appealed his conviction to the Kansas Supreme Court, challenging the insanity defense available in Kansas.[21] The court denied Kahler’s claim based on precedent, which held no single formulation of the insanity test is fundamental, so Kahler’s due process rights were not violated.[22] Finally, Kahler appealed his conviction to the United States Supreme Court.[23] Kahler asked the U.S. Supreme Court to decide whether the Due Process Clause requires states to adopt an insanity defense that includes the moral incapacity test from M’Naghten.[24] The U.S. Supreme Court granted certiorari.[25]
B. Legal Background
1. The M’Naghten Test
The predominant insanity test in the United States was created in an English case, R. v. M’Naghten, in 1843.[26] In this case, M’Naghten intentionally loaded a gun and shot another man, who subsequently died.[27] At trial, witnesses testified that M’Naghten was not of sound mind at the time of the murder.[28] M’Naghten was affected by morbid delusions that made it impossible for him to morally perceive reality, and therefore, he was unable to tell right from wrong.[29] The English court was asked to determine whether, at the time of the murder, M’Naghten was capable of understanding that what he was doing was morally wrong.[30]
Ultimately, M’Naghten was found not guilty of murder by reason of insanity.[31] In holding so, the English court created the M’Naghten test:
[T]o establish a [defense] on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the [defendant] was [laboring] 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; or, if he did know it, that he did not know he was doing what was wrong.[32]
The M’Naghten test has two prongs: (1) the cognitive capacity prong and (2) the moral capacity prong.[33] The two prongs are separated in the test by a disjunctive “or,” so each prong of the M’Naghten test is a standalone defense to prosecution.[34]
The popularity of the M’Naghten test was not confined to England; to this day, it is the most common insanity test in the United States.[35] Forty-five of the fifty states, plus the federal government and the District of Columbia, recognize an insanity defense that inquires into the moral blameworthiness of the defendant.[36] Seventeen states and the federal government use variations of the M’Naghten test, which include both the moral and cognitive capacity prongs.[37] For over a century, Kansas recognized the M’Naghten test, going so far as to proclaim that it was the “cardinal rule of responsibility in the criminal law.”[38] It was not until 1995 that the Kansas legislature abolished the M’Naghten test and shifted to only recognize the cognitive capacity prong of the M’Naghten test as a defense to prosecution.[39]
2. Kansas’s Statutory Scheme and Precedent for the Insanity Defense
Under section 21‑5209 of the Kansas Statutes, it is a defense to prosecution under any statute, if, “as a result of mental disease or defect, [the defendant] lacked the culpable mental state required as an element of the crime charged.”[40] The only way mental illness may be used as a defense in Kansas is by proving a defendant lacks the culpable mental state required as an element of the crime charged.[41] However, under section 21‑6625(a)(6) of the Kansas Statutes, mental illness may be considered a mitigating circumstance during sentencing.[42] At sentencing, a defendant may present evidence that he lacked the capacity to “appreciate the criminality of [his] conduct or to conform [his] conduct to the requirements of law.”[43] Kansas does not consider moral incapacity as a defense to a crime but only as a mitigating factor for sentencing once the defendant is found guilty of the crime charged.
Further, under section 21‑6815(c)(1)(C), the sentencing judge may depart from Kansas sentencing guidelines if, because of mental illness, the defendant “lacked substantial capacity for judgment when the offense was committed.”[44] The judge may also sentence a mentally ill defendant to a state security hospital or county institution for treatment in lieu of a prison sentence for his offense.[45]
In 2003, the Kansas Supreme Court held in State v. Bethel that Kansas’s insanity defense does not violate due process.[46] The court upheld Kansas’s minority approach to the insanity defense known as the mens rea approach.[47] The mens rea approach allows a defendant to introduce evidence that he did not have the culpable mental state required by a criminal statute.[48] However, this approach does not allow a defendant to introduce evidence showing the existence of a mental disease or defect as a general defense to the crime charged.[49] Next, this Comment will focus on the decision by the U.S. Supreme Court in Kahler v. Kansas, in which Kahler asked the Court to set a constitutional baseline for insanity tests.
III. Court’s Decision
In Kahler v. Kansas, Kahler asked the U.S. Supreme Court to decide if the Due Process Clause requires, as a constitutional baseline, that states adopt an insanity test that includes moral incapacity.[50] The majority interpreted this request to mean deciding if states must adopt the moral incapacity prong of the M’Naghten test.[51] The majority relied heavily on two precedents that previously held that no particular insanity test could serve as a baseline for due process because it encroached on the States’ traditional role of defining crimes, and views of mental illness were subject to disagreement and change.[52] Based on those precedents, Kahler faced a high bar because “a state rule about criminal liability . . . violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people.”[53] For the majority, the insanity defense cannot be fundamental because it is far too complex to be constitutionalized.[54] Even if a baseline insanity test were not too complex, the majority held that the insanity defense still cannot be fundamental because it is not rooted in the history and traditions of the United States.[55]
The majority walked through early English common law cases stressing that absent cognitive capacity, a defendant cannot be criminally liable for his acts.[56] The cognitive capacity prong of an insanity test asks if a defendant was able to form the requisite mens rea to commit the crime.[57] If there is no intent to commit the statutorily prohibited act, then it follows that there can be no guilt.[58] When addressing the second prong of the M’Naghten test, the majority suggested that a lack of moral capacity is often only a byproduct of a lack of a defendant’s cognitive capacity.[59]
According to the majority, there was no consensus in early common law cases that moral incapacity was a defense to criminal liability—despite the fact that a finding of moral incapacity often resulted in a finding of cognitive incapacity.[60] Additionally, even though most states have adopted the M’Naghten test or a similar alternative, the Court in Clark v. Arizona already held that its formulation is not fundamental.[61] After Clark, states continued to adopt variations of the two-pronged M’Naghten test, including more protective tests.[62] For the majority in Kahler, the fact that states adopted different or variational tests showed a lack of consensus regarding insanity tests.[63]
The majority then went beyond the due process analysis, holding that, even if the constitutional baseline for an insanity test included moral capacity, Kansas law would satisfy that test because it allows such evidence to be presented during sentencing.[64] Thus, even without a moral capacity element of the insanity defense, mentally ill defendants in Kansas could still end up in the same type of state institutions as defendants in states that have a moral capacity element, rather than ending up in prison.[65] However, moral incapacity as a mitigating factor does not spare defendants from the stigma of a criminal sentence.[66]
In the dissent’s view, the consensus of early common law allows a lack of moral capacity to excuse criminal liability.[67] At common law, a defendant’s cognitive capacity was more than today’s mens rea.[68] Contemporary mens rea is a narrow and technical legal term referring to the requisite state of mind necessary to be found guilty of a crime.[69] Historically, at common law, mens rea was more than a state of mind; it included the “general moral blameworthiness” of a defendant.[70] Therefore, moral capacity was not simply a byproduct of cognitive capacity as the majority suggested.[71] The prevailing view at common law was that a defendant who could not tell right from wrong was incapable of forming intent.[72] The defendant “must have something more than bare ability to form intentions and carry them out.”[73] The defendants must know that the act they committed was morally wrong.[74]
In response to the majority’s argument that due process is satisfied in Kansas because moral capacity is incorporated into sentencing, the dissent argued that such a statute violates due process because insane defendants should not be found guilty at all.[75] The traditional insanity defense precluded defendants who were not morally blameworthy from being found guilty of their criminal action.[76] By abolishing the moral capacity defense at the guilty stage of trial, Kansas effectively abolished the core principle of an insanity test.[77]
IV. Commentary
The Due Process Clause of the Fourteenth Amendment protects fundamental rights and liberties that are “deeply rooted in this Nation’s history and tradition,” “implicit in the concept of ordered liberty,” [78] and essential to maintain “a fair and enlightened system of justice.”[79] An insanity defense that includes whether a defendant is morally blameworthy should be constitutionalized as a fundamental right. The Court in Kahler improperly went beyond the due process analysis by finding that, even if it were possible to formulate a constitutional baseline for an insanity test that considers moral blameworthiness, the Court would not do so because of the complexity of the issue. Complexity has not deterred the Court from addressing vexing issues in the past, so complexity should not be a deterrent now.
Throughout its opinion, the majority conceded that common law opinions and treatises recognized that defendants were not criminally liable if they were unable to tell the difference between right and wrong.[80] Yet, the majority still held that a lack of moral capacity excuses criminal liability only because it is a byproduct of cognitive incapacity.[81] If anything, at common law, cognitive incapacity was a byproduct of moral incapacity. A defendant who was so “without his mind or discretion” would be unable to form the requisite criminal intent, so a lack of mens rea followed from a lack of moral capacity.[82] If a defendant is unable to know that his action is wrong, he cannot form the intent to commit a wrongful act.
By misinterpreting common law opinions and treatises, the majority incorrectly concluded that an insanity defense that includes moral blameworthiness is not “deeply rooted in this Nation’s history and tradition.”[83] The primary factor of analyzing a due process claim is history; here, the majority improperly substituted the complexity of a doctrine as the primary factor in a due process claim.[84] However, whether an issue is complex and evolving does not determine if it is a fundamental right.[85]
If the Court had followed the traditional approach to analyzing Due Process Clause violations, it would have determined that an insanity test that recognizes the moral capacity of a defendant is “deeply rooted in this Nation’s history and tradition.”[86] Such an insanity test is also “implicit in the concept of ordered liberty” and is essential to maintain “a fair and enlightened system of justice.”[87] It is neither fair nor enlightened to find defendants criminally liable for wrongful acts if they did not have the moral capacity to understand that what they were doing was wrong. The Court’s decision will result in morally blameless defendants being found guilty of crimes they did not know they were committing.
The dissent uses an illustrative example, centered around a dog, to show the errors in the majority’s argument.[88] In Prosecution One, the defense proves that the defendant suffered from a mental defect that caused him to believe that he had killed a dog, not a person.[89] In Prosecution Two, the defense proves that the defendant suffered from a mental defect that caused him to think the dog had ordered him to kill a human.[90] The outcome in each prosecution is different because, according to the majority, it is a defense in Prosecution One that the defendant did not have the cognitive capacity to form the intent to kill a person.[91] But, in Prosecution Two, it is not a defense that the defendant did not have any moral blameworthiness—the defendant only killed another because he was told to do so by a dog and did not realize the act was wrong.[92]
In neither prosecution did the defendant comprehend the weight and consequences of his or her actions due to mental illness. It is not fair that the defendant is guilty in one scenario and not the other. Indeed, mental illness is a complex topic on which scientists and society often change positions, but that is not an excuse for the Court to circumvent its role and find that no constitutional threshold can be established.
Additionally, the majority incorrectly assumed that the failure of the states to reach a consensus on the formulation of a single insanity defense means an insanity defense that includes moral capacity cannot be constitutionalized. Forty-five of the fifty states, plus the federal government and the District of Columbia, recognize an insanity defense with a moral capacity element—that is a consensus.[93] Simply because states do not adopt the exact same insanity defense does not mean that a constitutional baseline cannot be set. There is still room for state variation, so long as each state meets the minimum threshold set by the Constitution.[94] States are free to have variance in their insanity tests; however, as a baseline, they must recognize that a lack of moral capacity is a defense to prosecution.[95]
V. Conclusion
Deciding if a right is fundamental should not turn on whether the right is tied to a complex and evolving issue. A right is fundamental when it is “deeply rooted in this Nation’s history and tradition,” “implicit in the concept of ordered liberty,” [96] and essential to maintain “a fair and enlightened system of justice.”[97] An insanity defense that includes whether a criminal defendant is morally blameworthy has been a part of the history and traditions of the United States since the historical common law.[98] In Kansas, such an insanity test was the law for over a century.[99] An insanity defense that includes moral blameworthiness is implicit in the concept of ordered liberty because it ensures that defendants are not held liable for an act they do not know is criminal due to mental disease or defect. It is not fair or enlightened to find defendants criminally liable for their wrongful acts when they did not understand what they were doing was wrong.
Here, the Court went beyond the proper due process analysis to find that a morally blameless defendant should be held liable for his actions. The Court ignored history and, instead, determined that there cannot be a constitutional baseline for an insanity defense because mental illness is a complex issue. Kahler will result in morally blameless individuals being deemed guilty of crimes they did not even know they were committing.
1. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (first quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); and then quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (overruled on other grounds)). [Return to Text]
2. Palko, 302 U.S. at 325. [Return to Text]
3. Kahler v. Kansas, 140 S. Ct. 1021, 1037 (2020). [Return to Text]
4. State v. Kahler, 410 P.3d 105, 113 (Kan. 2018), aff’d sub nom. Kahler, 140 S. Ct. 1021. [Return to Text]
5. Id. [Return to Text]
6. Id. Karen filed for divorce in January 2009. Id. In March 2009, Kahler was arrested by police after Karen filed a battery complaint against him. Id. Shortly after the arrest, Karen and the children left Kahler. Id. The failure of Kahler’s marriage and the loss of his children affected Kahler’s ability to perform his job. Id. By August 2009, Kahler was unemployed and his parents moved him back to their residence in Meriden, Kansas. Id. [Return to Text]
7. Id. Kahler knew that it was a tradition for Karen’s family to spend the weekend after Thanksgiving there. Id. [Return to Text]
8. Id. [Return to Text]
9. Id. [Return to Text]
10. Id. [Return to Text]
11. Id. [Return to Text]
12. Id. [Return to Text]
13. Id. at 114. [Return to Text]
14. Id. [Return to Text]
15. Kahler v. Kansas, 140 S. Ct. 1021, 1027 (2020). [Return to Text]
16. Id. [Return to Text]
17. Id. [Return to Text]
18. Id. [Return to Text]
19. Id. [Return to Text]
20. Id. [Return to Text]
21. Id.; State v. Kahler, 410 P.3d 105, 124–25 (Kan. 2018). [Return to Text]
22. Kahler, 140 S. Ct. at 1027; State v. Kahler, 410 P.3d at 125. In State v. Bethel, 66 P.3d 840 (Kan. 2003), the Kansas Supreme Court considered and rejected the same arguments made. State v. Kahler, 410 P.3d at 125. Since Kahler raised no new arguments or reasons to reconsider the court’s holding in Bethel, the court refused to review the constitutionality of the insanity defense. Id. [Return to Text]
23. Kahler, 140 S. Ct. at 1027. [Return to Text]
24. Id. [Return to Text]
25. Id. Interestingly, the specific facts of Kahler’s case were of little consequence to the Court’s analysis. The Court mentioned no facts before starting its analysis and devoted only one paragraph of the opinion to the facts. Id. at 1026–27. Kahler appears to a be a test case to settle whether due process mandates an insanity defense that includes moral blameworthiness—or the second prong of the M’Naghten test. See id. at 1027. There are also no facts in Kahler’s case that suggest, even if Kansas’s insanity defense considered moral blameworthiness, Kahler would have been found not guilty by reason of insanity. At trial, Kahler’s psychiatric expert testified only that Kahler was suffering from major depression at the time he murdered his family, which rendered Kahler incapable of refraining from committing the crime. State v. Kahler, 410 P.3d at 114. However, the inability to stop oneself from committing an illegal act is more like the irresistible impulse test and not the moral incapacity prong of M’Naghten. See 1 F. Lee Bailey & Kenneth J. Fishman, Criminal Trial Techniques, The Irresistible Impulse Test § 35:7, Westlaw (updated August 2020). The irresistible impulse test asks whether, because of mental disease or defect, a defendant is unable to resist his own impulses. See id. The adage “bad facts make bad law” may apply here. It is possible that, if Kahler had been suffering from a mental disease or defect that rendered him incapable of knowing that what he was doing was wrong, then the Court would have reached a different conclusion. [Return to Text]
26. M’Naghten’s Case (1843) 8 Eng. Rep. 718 (HL). [Return to Text]
27. Id. at 719. [Return to Text]
28. Id. [Return to Text]
29. Id. [Return to Text]
30. Id. at 719–20. [Return to Text]
31. Id. at 720. [Return to Text]
32. Id. at 722 (alteration in the original) (emphasis added). [Return to Text]
33. Kahler v. Kansas, 140 S. Ct. 1021, 1034–35 (2020). Statutes are disjunctive when the elements are joined by the term “or.” See Teo Spengler, Determining a Conjunctive or Disjunctive Statute, Legal Beagle (Dec. 12, 2018), https://legalbeagle.com/8535279-determine-statute-conjunctive-disjunctive.html [https://perma.cc/4G7W-ZRPE. If a defense statute is disjunctive, it is sufficient to prove any of the elements of the statute for the defendant to be found not guilty. Id. [Return to Text]
34. See Kahler, 140 S. Ct. at 1034–35. [Return to Text]
35. Id. at 1046 (Breyer, J., dissenting). [Return to Text]
36. Id. [Return to Text]
37. Id. Though enacted in 1995, the legislation abolishing the M’Naghten test did not go into effect until January 1, 1996. State v. Kahler, 410 P.3d 105, 125 (Kan. 2018). [Return to Text]
38. Kahler, 140 S. Ct. at 1038 (Breyer, J., dissenting) (quoting State v. Nixon, 4 P. 159, 160 (Kan. 1884)). [Return to Text]
39. Id. at 1038–39. [Return to Text]
40. Kan. Stat. Ann. § 21-5209 (2020), http://kslegislature.org/li/b2021_22/statute/021_000_0000_chapter/021_052_0000_article/021_052_0009_section/021_052_0009_k/ [https://perma.cc/G38E-5CWA. It is only a defense to prosecution if the defendant did not have the cognitive capacity necessary to form intent. Id. For example, if the defendant shot a person thinking the person was a dog, that would be a defense to a murder prosecution. See Kahler v. Kansas, 140 S. Ct. at 1038 (Breyer, J., dissenting) (discussing a hypothetical where a defendant’s lack of cognitive capacity to know he shot and killed a person rather than a dog would be a defense to prosecution in Kansas). [Return to Text]
41. Kan. Stat. Ann. § 21-5209. There are no other ways for mental illness or defect to result in an acquittal. See id. [Return to Text]
42. Kan. Stat. Ann. § 21-6625(a)(6) (2020), http://kslegislature.org/li/b2021_22/statute/021_000_0000_chapter/021_066_0000_article/021_066_0025_section/021_066_0025_k/ [https://perma.cc/HZZ2-8BJJ. [Return to Text]
43. Id. The defendant may present evidence at the sentencing phase that he was unable to appreciate the morality of the decision he was making. Id. [Return to Text]
44. Kan. Stat. Ann. § 21-6815(c)(1)(C) (2020), http://kslegislature.org/li/b2021_22/statute/021_000_0000_chapter/021_068_0000_article/021_068_0015_section/021_068_0015_k/ [https://perma.cc/HWG3-E2VF. If the defendant’s illness caused him to be unable to tell the difference between right and wrong, the judge could depart from the sentencing guidelines. Id. [Return to Text]
45. Kan. Stat. Ann. § 22-3430(a) (2020), http://kslegislature.org/li/b2021_22/statute/022_000_0000_chapter/022_034_0000_article/022_034_0030_section/022_034_0030_k/ [https://perma.cc/PYE6-5Y55. The judge may only sentence the defendant to a state security hospital if, after a physical examination, it is shown that the defendant needs psychiatric care and treatment, and the treatment may aid the defendant’s rehabilitation. Id. Placing a defendant in a state security hospital must also not endanger the defendant or society. Id. [Return to Text]
46. State v. Bethel, 66 P.3d 840 (Kan. 2003). [Return to Text]
47. Id. at 851. Only Kansas, Montana, Idaho, and Utah use the mens rea approach to the insanity defense. Id. at 845 (citing Marc Rosen, Article, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. & Pub. Pol’y 253, 254–55 (1999)). [Return to Text]
48. Id. at 845. [Return to Text]
49. Id. [Return to Text]
50. Kahler v. Kansas, 140 S. Ct. 1021, 1027 (2020). [Return to Text]
51. Id. [Return to Text]
52. Id. at 1028–29. In Leland v. Oregon, 343 U.S. 790 (1952), the defendant challenged the moral incapacity prong of Oregon’s insanity defense, and the Court held that insanity tests were best left to each state to define. Id. at 1028. Similarly, in Clark v. Arizona, 548 U.S. 735 (2006), the Court declined to set a constitutional baseline for the insanity test. Id. at 1028–29. [Return to Text]
53. Id. at 1027 (internal quotations omitted) (quoting Leland v. Oregon, 343 U.S. 790, 798 (1952)). [Return to Text]
54. Id. at 1028. [Return to Text]
55. Id. at 1034. [Return to Text]
56. Id. at 1032–34. The majority admitted, however, that the cases it relied upon included a reference to the defendant’s ability to tell right from wrong. Id. The majority then accused the minority of “cherry-picking” such cases, as though they were not also “cherry-picking” cases to support its position. See id. [Return to Text]
57. Id. at 1033. [Return to Text]
58. Id. at 1028. [Return to Text]
59. Id. at 1034. Since moral capacity is a byproduct of cognitive capacity, the lack of moral capacity cannot be a standalone test of insanity. Id. [Return to Text]
60. Id. [Return to Text]
61. Id. at 1035; Clark v. Arizona, 548 U.S. 735, 749 (2006). M’Naghten “failed to unify state insanity defenses.” Kahler, 140 S. Ct. at 1035. [Return to Text]
62. Kahler, 140 S. Ct. at 1034–35. The majority suggested that adopting the second prong of the M’Naghten test as a constitutional baseline would result in striking down the insanity tests of twenty-one states. Id. at 1036. Five states follow the approach that Kansas does, and sixteen states ask whether the defendant knew his act was illegal rather than morally wrong. Id. at 1035–36. However, the majority disingenuously attempted to distinguish legally wrong from morally wrong despite the two being operationally analogous—a criminal defendant who lacks the moral capacity to know wrong from right may still be aware that what he is doing is legally wrong. Id. at 1046 (Breyer, J., dissenting) (“[T]here is no indication that [whether an act is legally or morally wrong] makes a meaningful difference in practice.”). So, in reality, only six states have adopted an insanity test that would have been struck down. Previously, the Court has struck down laws that violated due process in nearly forty states. See Furman v. Georgia, 408 U.S. 238 (1972) (holding that the death penalty violates the Eighth and Fourteenth Amendments); Furman v. Georgia, L. Libr. – Am. L. & Legal Info., https://law.jrank.org/pages/7054/Furman-v-Georgia.html#:~:text=The%20private%20opinions%20of%20justices,that%20authorized%20the%20death%20penalty [https://perma.cc/N3VK-CX9J] (last visited Feb. 4, 2021). If there is a violation of due process, the Court should be more concerned with correcting that violation than with how many state statutes would be struck down to correct the violation. [Return to Text]
63. Kahler, 140 S. Ct. at 1034. [Return to Text]
64. Id. at 1031. Any evidence of mental illness, which could not be presented during trial as a defense to prosecution under section 21-5209 of the Kansas Statutes, could be presented during sentencing to mitigate the defendant’s punishment under section 21-6625(a)(6) of the Kansas Statutes. Id. Theoretically, under section 22‑6815(c)(1)(C) of the Kansas Statutes, the trial judge could depart from the sentencing guidelines and admit a defendant to a state security hospital, instead of prison, due to his mental illness. Id. [Return to Text]
65. Id. Still, a defendant sentenced to a state institution rather than prison carries with him the stigma of criminal conviction. In re Winship, 397 U.S. 358, 363–64 (1970) (holding that the required standard of proof in a criminal case is beyond a reasonable doubt). The Court previously held in In re Winship that criminal conviction is more than a loss of liberty—it also stigmatizes the defendant in society. Id. A criminal defendant who has been convicted is no longer able “to command the respect and confidence of [his] community.” Id. at 364. The stigma persists whether the defendant is sentenced to prison or a mental institution. [Return to Text]
66. Winship, 397 U.S. at 364. [Return to Text]
67. Kahler, 140 S. Ct. at 1038 (Breyer, J., dissenting). The main tenet is that a defendant cannot be criminally liable if, at the time of the criminal act, the defendant could not tell right from wrong or good from evil. Id. [Return to Text]
68. Id. at 1042. [Return to Text]
69. Id. [Return to Text]
70. Id. [Return to Text]
71. Id. at 1044. [Return to Text]
72. Id. [Return to Text]
73. Id. [Return to Text]
74. Id. [Return to Text]
75. Id. at 1048–49. [Return to Text]
76. Id. at 1044. [Return to Text]
77. Id. at 1048. [Return to Text]
78. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (first quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); and then quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). [Return to Text]
79. Palko, 302 U.S. at 325 (overruled on other grounds). [Return to Text]
80. Kahler, 140 S. Ct. at 1034. [Return to Text]
81. Id. [Return to Text]
82. Id. at 1032–33 (discussing Sir Edward Coke’s common law approach to insanity as a defense). [Return to Text]
83. Glucksberg, 521 U.S. at 720–21 (1997) (quoting Moore, 431 U.S. at 503). [Return to Text]
84. Kahler, 140 S. Ct. at 1038 (Breyer, J., dissenting). The M’Naghten test, established in England in 1843, was imported to the United States in 1846. See generally Kenneth J. Weiss & Neha Gupta, America’s First M’Naghten Defense and the Origin of the Black Rage Syndrome, 46 J. Am. Acad. Psychiatry & L. 503 (2018). [Return to Text]
85. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (stating that marriage is a fundamental right); Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that marriage laws that ban interracial marriage violate the Due Process Clause); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that marriage laws that ban same-sex marriage violate the Due Process Clause). Marriage was stated to be a fundamental right in 1942, but it was not for another fifteen years that interracial marriages were also protected by the Due Process Clause. See Skinner, 316 U.S. at 541; Loving, 388 U.S. at 12. Then, it took nearly half a decade for the Court to recognize same-sex marriage. See Obergefell, 576 U.S. at 675. Additionally, in 1972, the Court held that the death penalty violated the Eighth and Fourteenth Amendments, concluding that the death penalty was imposed arbitrarily, infrequently, and selectively against minorities. Furman v. Georgia, 408 U.S. 238, 256–57 (1972) (5–4 decision) (Douglas, J., concurring). Then, in 1976, the Court lifted the moratorium imposed by Furman when it held that capital punishment itself does not violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 187, 207 (1976). Certain statutory schemes violated the Constitution, but the punishment of death itself did not violate the Constitution. Id. Similarly, here, the Court could set the threshold protections that an insanity test could afford, then allow states to create their own statutory schemes that, at the least, provide the constitutional threshold protection. [Return to Text]
86. Glucksberg, 521 U.S. at 720–21 (quoting Moore, 431 U.S. at 503); Kahler, 140 S. Ct. at 1044 (Breyer, J., dissenting). [Return to Text]
87. Palko v. Connecticut, 302 U.S. 319, 325 (1937) (overruled on other grounds); Glucksberg, 521 U.S. at 720–21. [Return to Text]
88. Kahler, 140 S. Ct. at 1038 (Breyer, J., dissenting). [Return to Text]
89. Id. [Return to Text]
90. Id. [Return to Text]
91. Id. [Return to Text]
92. Id. Perhaps Justice Breyer based his hypothetical on David Berkowitz, known as the “Son of Sam,” a serial killer in New York City from 1976 to 1977. David Berkowitz, Biography (Sep. 8, 2020), https://www.biography.com/crime-figure/david-berkowitz [https://perma.cc/3U2Z-TNLN. Berkowitz claimed that a demon-possessed dog named “Harvey” (who belonged to Berkowitz’s neighbor Sam Carr) ordered him to commit the murders. Id. [Return to Text]
93. Kahler, 140 S. Ct. at 1046 (Breyer, J., dissenting). A consensus is a majority opinion. See Consensus, Dictionary.com, https://www.dictionary.com/browse/consensus [https://perma.cc/RV9V-FXPH] (last visited Feb. 4, 2021); see also Consensus, Merriam-Webster, https://www.merriam-webster.com/dictionary/consensus [https://perma.cc/8UK3-3Q69] (last visited Feb. 4, 2021). A majority of the jurisdictions within the United States recognizes moral incapacity as a defense to criminal liability. Therefore, a consensus has been reached. [Return to Text]
94. See William F. Swindler, Minimum Standards of Constitutional Justice: Federal Floor and State Ceiling, 49 Mo. L. Rev. 1, 5 (1984). The U.S. Constitution sets the minimum standard of protection and rights guaranteed to all citizens. Id. States may provide more protections to their citizens via their state constitutions. Id. For example, a person who is in custody and subject to an interrogation by law enforcement officers has a constitutional right to be given Miranda warnings. See generally Jacquelyn Kuhens, The Newest Constitutional Right – The Right to Miranda Warnings, Fed. L. Enf’t Training Ctr., https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/5th-amendment/newestconstitutionalright.pdf [https://perma.cc/5VM5-BWD4] (last visited Feb. 4, 2021). The Miranda warnings inform a suspect of the following: (1) the right to remain silent; (2) that anything the suspect says can be used against him in court; (3) the right to have an attorney present during the interrogation; and (4) if the suspect cannot afford an attorney, one will be provided to him. Id. The constitutional threshold is only that the Miranda warnings reasonably convey to a suspect his rights; therefore, the exact wording of Miranda rights varies from state to state (and police precinct to precinct). Florida v. Powell, 559 U.S. 50, 60 (2010). [Return to Text]
95. Kahler, 140 S. Ct. at 1046 (Breyer, J., dissenting). [Return to Text]
96. Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (first quoting Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); and then quoting Palko v. Connecticut, 302 U.S. 319, 325–26 (1937)). [Return to Text]
97. Palko, 302 U.S. at 325. [Return to Text]
98. Kahler, 140 S. Ct. at 1040–42 (Breyer, J., dissenting). [Return to Text]
99. Id. at 1038. [Return to Text]
