by Douglas Ankney

The Supreme Court of the United States (“SCOTUS”) determined that “no insanity rule in this country’s heritage was ever so settled as to tie a State’s hands centuries later” and held that Kansas did not violate due process by failing to “adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong.”

James Kahler was charged with capital murder after he shot and killed four members of his family. Prior to trial, he filed a motion arguing that Kansas had “unconstitutionally abolished the insanity defense” by allowing the conviction of a mentally ill person “who cannot tell the difference between right and wrong.”

Kansas’ statutory scheme for allowing an insanity defense permits juries to acquit only if a defendant “as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense” and “mental disease or defect is not otherwise a defense.” Kan. Stat. Ann. § 21-5209. Culpable mental state is the “mens rea” or “intent formed in the mind” to commit a crime.

Kahler argued that this deprived him of due process because he wanted to present an insanity defense based on his moral incapacity; to wit, he had the culpable mental state in intending to kill his victims but he lacked the mental capacity to understand his actions were wrong. In Kansas, this defense cannot be raised during the guilt phase of the trial — meaning a defendant cannot be acquitted based on the fact that a mental defect caused him to not know his actions were wrong. A defendant in Kansas can present such evidence of moral incapacity only at the sentencing phase to mitigate punishment. Kan. Stat. Ann. §§ 21-6815(c)(1)(C), 21-6625(a).

The trial court denied Kahler’s motion, leaving him to attempt to convince the jury that his mental defect (severe depression) prevented him from forming the intent to kill. The jury rejected his claim and convicted him of capital murder. During the penalty phase, the court permitted Kahler to offer additional evidence of his mental illness and to argue in whatever way he chose as to why it should mitigate his sentence. The jury imposed the death penalty.

On appeal, Kahler reasserted his challenge to the constitutionality of Kansas’ approach to insanity claims. The Kansas Supreme Court rejected his argument. SCOTUS granted certiorari.

The High Court observed: “A challenge like Kahler’s must surmount a high bar. Under well-settled precedent, a state rule about criminal liability — laying out either the elements of or the defenses to a crime — violates 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.’” Leland v. Oregon, 343 U.S. 790 (1952). The Court’s primary guide in application of that standard is “historical practice.” Montana v. Egelhoff, 518 U.S. 37 (1996). In assessing historical practice, SCOTUS looks “primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions.”

In Clark v. Arizona, 548 U.S. 735 (2006), SCOTUS identified four “strains variously combined to yield a diversity of American standards” used when determining whether to absolve mentally ill defendants of criminal culpability. The first two strains descend from the landmark English decision M’Naghten’s Case, 10 Cl. & Fin. 200 (H.L. 1843). The first strain asks about “cognitive capacity” — whether a mental illness left a defendant “unable to understand what he [was] doing” when he committed a crime. Clark. The second examines a defendant’s “moral capacity” — whether his illness rendered him “unable to understand that his action [was] wrong.” Id. If a defendant lacks either moral or cognitive capacity, he is not criminally responsible for his behavior.

Beginning in the mid-19th century, a third strain became popular and focused on a defendant’s “volitional capacity,” i.e., whether the mental disease made him subject to irresistible impulses or made him unable to control his actions. Id. Finally, in Clark’s accounting, the fourth strain was the “product-of-mental-illness test” that broadly considers whether a defendant’s criminal act stemmed from a mental disease.

But these four strains by no means exhaust the complexity of insanity defenses available among the states. For example, in some jurisdictions, the jury must determine if the defendant understood his act was immoral, People v. Schmidt, 110 N.E. 945 (N.Y. 1915), while other jurisdictions require a determination of whether the defendant understood his actions were illegal. State v. Hamann, 285 N.W.2d 180 (Iowa 1979). Thus, if a defendant knew it was illegal to kill his neighbor but believed he was morally right in doing so because of a delusion that God told him to do it in order to save the human race, he would be acquitted in the former jurisdiction but convicted in the latter.

In Powell v. Texas, 392 U.S. 514 (1968), SCOTUS upheld the policy of Texas in not recognizing the disease of “chronic alcoholism” as a defense to the crime of public drunkenness, emphasizing the paramount role of the states in “setting standards of criminal responsibility.” While the defense was recognized in other states, SCOTUS refused to impose “a constitutional doctrine” defining standards of criminal responsibility. The Court recognized that the “constantly shifting adjustment” of “changing religious, moral, philosophical, and medical views of the nature of man ... could not proceed in the face of rigid [c]onstitution[al] formulas.” Powell.

Nowhere had the Court held more closely to that view than when addressing the contours of the insanity defense. “[P]sychiatrists disagree widely and frequently on what constitutes mental illness, on [proper] diagnos[es, and] on cure and treatment.” Ake v. Oklahoma, 470 U.S.68 (1985). And in Clark, the Court noted that the states “limit, in varying degrees, which sorts of mental illness” can support an insanity claim. In Leland, the defendant lost his argument that Oregon violated due process for using the moral-incapacity test (the test Kahler was asking the Court to impose upon Kansas) in lieu of the volitional-incapacity test. Concerning the differing views of mental illness and insanity, the Court said in Leland, “This whole problem has evoked wide disagreement.”

But the Court agreed with Kahler that for hundreds of years judges and jurists have recognized the principle that insanity is a defense relieving the accused of criminal responsibility. Sir William Blackstone wrote “lunatics are not chargeable for their own acts, if committed when under these incapacities.” 4 Commentaries on the Laws of England 24 (1769). Sir Edward Coke wrote “the act and wrong of a mad man shall not be imputed to him.” 2 Institutes of the Laws of England § 405 (1628) (“Coke”). And Henry de Bracton was of the opinion that a “madman” could no sooner be found criminally liable than a child. 2 Bracton on Laws and Customs of England 384 (S. Thorne transl. 1968). And Kansas, in permitting an insanity defense, had not departed from that principle.

But there was no consensus among those venerable men or within historical judicial decisions that any particular test for determining insanity prevailed. For example, Lord Coke expressed that the test for an insane person was one who was so utterly “without his mind or discretion” that he could not form the needed mens rea. Coke, § 405. Yet, as already observed, M’Naghten’s Case considered moral incapacity to be a test for insanity.

The Court concluded that Kahler failed to demonstrate that the moral-incapacity test is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and Kansas has no constitutional duty to adopt it.

Accordingly, SCOTUS affirmed the decision of the Kansas Supreme Court. See: Kahler v. Kansas, 140 S. Ct. 1021 (2020). 

Subscribe today

Already a subscriber? Login

Related legal case