Friday, May 22, 2020
Joshua Dressler (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Kahler v. Kansas: Ask the Wrong Question, You Get the Wrong Answer (Ohio State Journal of Criminal Law, Vol. 18, No. 1, 2020) on SSRN. Here is the abstract:
In Kahler v. Kansas, the Supreme Court held that the Kansas did not violate the Due Process Clause when it abolished the insanity defense. The outcome was predictable, but it reached its result in a particularly odd way. The Court does not say that abolition of the insanity defense is constitutional, but rather that Kansas did not really abolish the insanity defense at all. I seek to show in this article that the Court’s analysis is wrong as a matter of constitutional law and proper understanding of criminal law principles. One important lesson from this case is this: when you ask the wrong question, you get the wrong answer.