CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 20, 2021

Hughes on Due Process and Insanity

Matthew Hughes has posted A New Argument for the Next Kahler v. Kansas: Due Process Demands more than Cognitive Incapacity (15 Liberty University Law Review 27 (2020)) on SSRN. Here is the abstract:
Despite the Supreme Court's recent decision in Kahler v. Kansas, there is a compelling argument that the Due Process Clause of the Fourteenth Amendment requires an insanity excuse in criminal cases that is broader than cognitive incapacity. Even though not every American jurisdiction has always provided a moral incapacity insanity excuse, history shows that the Anglo-American legal tradition has always required more than cognitive capacity as a prerequisite to criminal culpability. A survey of early English legal writers, along with authoritative English cases prior to the famous explanation of insanity in M'Naghten's Case in 1843, shows that England long employed both cognitive and moral incapacity as excuses from criminal liability. Aside from a few American jurisdictions employing the volitional incapacity excuse or the product-of-insanity test, the same was true of America from colonial times up through the twentieth century. Not until the 1950s did any American jurisdiction reduce the mental prerequisites to criminal liability to mere cognitive capacity, and by the beginning of the twenty-first century, only six states had done so. The Supreme Court should recognize that the American tradition and conscience requires an insanity excuse that is broader than the cognitive incapacity excuse.

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