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SCOTUS: Constitution doesn’t require insanity defense to cover person whose mental illness prevents recognition of wrongfulness of conduct

Kahler v. Kansas, USSC No. 18-6135, 2020 WL 1325817, 3/23/20, affirming State v. Kahler, 410 P.3d 105 (Kan. 2018); Scotusblog page (including links to briefs and commentary)

Kansas amended its insanity defense to limit to defendants whose mental illness prevents them from forming the required intent to commit a crime. A majority of the Supreme Court holds that does not violate due process.

Kansas used to follow the old M’Naghten rule, under which the defendant is not criminally responsible where he or she (1) does not know the nature and quality of his or her act or  (2) does not know right from wrong with respect to that act, i.e., does not know that his or her act was contrary to law. But as the Kansas Supreme Court explained in its opinion in this case, the state “abandoned” this rule and and instead “adopted what is known as the ‘mens rea approach.’ The mens rea approach allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense.” 410 P.3d at 125, citing State v. Jorrick, 4 P.3d 610 (2000). Kahler argues this limitation violates due process, which requires states to provide a basic minimum insanity defense that precludes imposing criminal responsibility on persons whose mental illness makes it impossible for them to understand the wrongfulness of their conduct.

As the majority observes, states have broad leeway to define crimes, whether it be through specifying the elements or making available defenses to liability:

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, 798 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is “historical practice.” Montana v. Egelhoff, 518 U.S. 37, 43 (1996) (plurality opinion). And in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g., id., at 44–45; Patterson v. New York, 432 U.S. 197, 202 (1977). The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. See, e.g., Clark [v. Arizona], 548 U.S. [735,] 752 [(2006)] (“[T]he conceptualization of criminal offenses” is mostly left to the States).

In Powell v. Texas, 392 U.S. 514 (1968), this Court explained why. There, Texas declined to recognize “chronic alcoholism” as a defense to the crime of public drunkenness. Id., at 517 (plurality opinion). The Court upheld that decision, emphasizing the paramount role of the States in setting “standards of criminal responsibility.” Id., at 533. In refusing to impose “a constitutional doctrine” defining those standards, the Court invoked the many “interlocking and overlapping concepts” that the law uses to assess when a person should be held criminally accountable for “his antisocial deeds.” Id., at 535–536. “The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress”—the Court counted them off—reflect both the “evolving aims of the criminal law” and the “changing religious, moral, philosophical, and medical views of the nature of man.” Id., at 536. Or said a bit differently, crafting those doctrines involves balancing and rebalancing over time complex and oft-competing ideas about “social policy” and “moral culpability”—about the criminal law’s “practical effectiveness” and its “ethical foundations.” Id., at 538, 545, 548 (Black, J., concurring). That “constantly shifting adjustment” could not proceed in the face of rigid “[c]onstitution[al] formulas.” Id., at 536–537 (plurality opinion). Within broad limits, Powell thus concluded, “doctrine[s] of criminal responsibility” must remain “the province of the States.” Id., at 534, 536.

(Slip op. at 6-7).

This groundwork established, the majority embarks on a lengthy historical exposition describing the different ways the insanity defense has been formulated over several hundred years. (Slip op. at 14-24). Not surprisingly, given the “uncertainties about the human mind” and the fact that “as some puzzles get resolved, others emerge” and that “those perennial gaps in knowledge intersect with differing opinions about how far, and in what ways, mental illness should excuse criminal conduct” (slip op. at 8), none of the specific formulations is “so old and venerable” or “so entrenched in the central values of our legal system” that it constitutes a constitutionally minimum standard.

Thus, relying on its own precedent validating varying formulations of the test for insanity, the majority says “it would be indefensible to impose upon the States[ ] one test rather than another for determining criminal culpability” for the mentally ill, “and thereby to displace a State’s own choice.” (Slip op. at 9, quoting Leland, 343 U.S. at 803 (opinion of Frankfurter, J.); see also id. quoting Clark, 548 U.S. at 752, 753 (a state’s “insanity rule[ ] is substantially open to state choice” and “due process imposes no single canonical formulation of legal insanity”)). Thus, Kahler’s complaint about Kansas’s reformulation of the test for insanity must fail.

But is that right? Well, it is if Kahler’s argument is about Kansas’s formulation of the insanity defense. In fact, the majority misses the point of what Kansas did and what Kahler is arguing. Kansas didn’t just drop one prong of the two-prong M’Naghten test. It got rid of the test entirely, and declared that mental illness is no longer an affirmative defense against criminal responsibility but simply a piece of evidence relevant to whether the state has proven all the elements of the offense. Kansas allows evidence of insanity to negate mens rea when it is an essential element of the offense, but that gives a mentally ill defendant nothing beyond what all defendants get: an argument the state hasn’t proven all the elements of the offense.

To illustrate, consider the defenses of self-defense versus accident to a criminal charge of intentionally shooting someone. Self-defense assumes all the elements of the offense (including intent) are proven, but allows a jury find a justification or excuse of what is otherwise criminal conduct because the defendant was acting in self-defense. Accident, on the other hand, is an argument the state has not proven the element of intent. Kahler’s point is that for hundreds of years now, the common law has recognized that insanity—like self-defense—relieves a person of criminal responsibility even though the person committed all the elements of a crime, regardless of how the test for insanity is formulated and regardless of whether the defendant could, in some narrow, mechanical or biological sense, be said to have had the requisite mens rea. And Kansas’s reformulated insanity “defense” doesn’t relieve the person of responsibility for criminal conduct in this way. Instead, the mental illness evidence either entirely relieves the defendant from responsibility by resulting in a not guilty verdict (the same way an accident defense would) or it is relegated to mitigating evidence relevant only to sentencing or other disposition. The net effect, then, is that Kansas has repealed the insanity defense, and the majority finds no due process violation in its having done so.

That is the conclusion reached by the dissenters (Breyer, Ginsburg, Sotomayor), in an incisive writing that is as thorough-going and history-based as the majority opinion. (Dissent at 1-24). There is seemingly no dispute between the majority and dissent that the insanity defense, generally speaking, is “so old and venerable” or “so entrenched in the central values of our legal system” that due process demands it be a part of any state’s criminal code, for even the majority can’t find a case saying the insanity defense can be discarded. (Slip op. at 11). Instead, their dispute is in the conceptualization of what Kansas has done. The majority frames Kahler’s argument as a claim about the specific formulation of the insanity defense standard, rather than, as the dissent sees it, about whether the traditional defense is being jettisoned. That the majority and defense are as ships passing in the night on this point may bode ill for other legislative incursions on affirmative defenses. Thankfully, this decision has no impact on Wisconsin practice, at least for now, as we adhere to the Model Penal Code formulation (which is based in turn on the M’Naghten rule). Wis. Stat. § 971.15(1).

For additional commentary on the decision, Orin Kerr’s take is here, and Carissa Byrne Hessick gives her analysis here.

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