Monday, August 12, 2019
Paul J. Larkin, Jr. and GianCarlo Canaparo (The Heritage Foundation and Georgetown University Law Center) have posted Are Criminals Bad or Mad? — Premeditated Murder, Mental Illness, and Kahler V. Kansas (Harvard Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:
Neither the Due Process Clause nor the Cruel and Unusual Punishments Clause contains a directive ordering the federal or state governments to define the substantive criminal law in any particular fashion. The Due Process Clause prohibits the government from punishing someone until he has been convicted of a crime under the governing jurisdiction’s laws, but it does not instruct legislatures how to define those crimes and whether or how to recognize defenses to them. The Cruel and Unusual Punishments Clause has even less relevance to the content of the substantive criminal law. It only comes into play after an offender has been convicted of a crime and focuses entirely on the punishments that he can receive. The criminal law recognizes various defenses — self-defense, defense of others, duress, necessity, consent, and so forth — but the Framers did not incorporate any of them into the text of the Constitution. Indeed, with the exception of the Treason Clause, the Constitution leaves entirely to the political process the definition of the penal code because the judgments involved in drafting it involve precisely the type of moral decisions that the public and its elected representatives are fully competent to make. The most that could be required of the federal or state governments is to make a non-arbitrary choice. The judgment that Kansas made easily passes that test.