Reviewing the United States Supreme Court’s Decision in Kahler v. Kansas

In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.

I.    The Court’s Decision

By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.

In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime.[1] Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.”[2] Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness.  Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.”[3] Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”[4]

II.    Analysis

The Court got it wrong.

There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong.  Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.

Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”[5]

Justice Breyer explained as follows:

A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.[6]

That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.

III.       Broader Problems With the Insanity Defense

The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling.[7] Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.

As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.[8]

IV.    Reforms

Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.

Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.

 

[1] See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf

[2] Id.

[3] Id.

[4] Id. (internal citation omitted).

[5] Id.

[6] Id.

[7] A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.

[8] This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.