Courthouse Steps Oral Argument Teleforum: Kahler v. Kansas and Ramos v. Louisiana

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Monday, October 7, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Teleforum on two oral arguments this morning at the Supreme Court: Kahler v. Kansas and Ramos v. Louisiana. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us GianCarlo Canaparo, who is a Legal Fellow at The Heritage Foundation in the Ed Meese Legal and Judicial Center. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. GianCarlo, the floor is yours.

 

GianCarlo Canaparo:  Micah, thanks for having me, and thank you everyone for being on the call.

 

So today, the Court heard oral argument in two criminal cases: Kahler v. Kansas and Ramos v. Louisiana. I'm going to go through both cases, so in the interest of time, because we're dealing with two cases, I might talk a little quickly.

 

Kahler v. Kansas is a case -- the question presented to the Court was whether Kansas can abolish the insanity defense. I'll get in to this a little more in detail later, but there's some dispute between the parties about whether what Kansas did was really abolishing the insanity defense or reforming it.

 

Briefly, the lawyers for the case, the petitioner, Kahler's, was argued by for Sarah Schrup of Northwestern University. Respondent, Kansas, was argued for by Toby Crouse, the Solicitor General of Kansas, and the Deputy Solicitor General Elizabeth Prelogar also argued on behalf of the Solicitor General's Office in favor of Kansas.

 

The facts in Kahler, Mr. Kahler murdered his ex-wife, two of his children, and his former mother-in-law because of what he called -- he and his experts called a psychotic break. At trial in Kansas, he was unable to offer the typical insanity defense because Kahler has -- Kansas, rather, has said that the evidence of insanity can only be used to disprove mens rea, but the traditional affirmative defense-type use of that evidence is no longer permitted.

 

So Kahler was convicted, and he was, after a separate jury proceeding, sentenced to death. He now argues on two grounds that the Kansas rule is unconstitutional. First, on due process grounds, he argues that history shows that a mentally ill person who commits a crime is not morally responsible if he doesn't know his actions are wrong, and that that historical practice is deeply rooted in our constitutional history.

 

As to the Eighth Amendment, he argues that, essentially, conviction and punishment go hand in hand, and that oral argument expounded on this argument a little further, that conviction carries stigma and collateral consequences so it's cruel and unusual to convict somebody with all that that subsequently entails if they're mentally ill.

 

Moreover, he argues that punishing an insane person serves no penological interest or justification. Kansas disputes that it abolished the insanity defense but argues that it redefined it or reframed it by permitting evidence of insanity as to mens rea.

 

As to the due process argument, Kansas argues that Kahler has the history wrong. Before the 19th century, Kansas argues, and the history backs this up to some extent, that insanity focused on criminal intent, not, as Kahler argues now, on knowledge of right versus wrong, and that that right versus wrong distinction appeared with the now famous McNaughton test out of England. So the Eight Amendment, Kahler argues in a fairly straight forward textualist basis, that the Eight Amendment prohibits punishment and not conviction.

 

So before I continue, I'll say that I'm not an entirely unbiased party in Kahler v. Kansas. My colleague Paul Larkin and I wrote a law review article on this point in favor of Kansas, but I'll keep my own editorializing to a minimum, and we'll talk about what the justices did at oral argument.

 

So when petitioner got up and began his argument through Ms. Schrup, Ginsburg fired off the first question almost immediately. And she noted that other countries use a verdict called guilty but mentally ill, which breaks to hold somebody guilty through the trial and conviction stage but says you're mentally ill and so you won't be sentenced to prison. You'll go to a mental institution. And she asked the petitioner if that would be unconstitutional, and the petitioner said no, that would be unconstitutional because conviction carries collateral consequences.

 

So Ginsburg followed up and said well, if we remove all collateral consequences and simply put a criminally insane person in a mental hospital after convicting them, would that be okay? And petitioner said no, conviction carries a stigma.

 

So Kagan jumped in at this point, and she challenged the petitioner's premise that if the history really is as sure as petitioner says it is with respect to this right versus wrong requirement, why should we follow history? She asked, essentially, how do we tell which historical practices we should and shouldn't follow, especially in light of changing state and psychological opinions about the best approach to take with this because an undercurrent of the oral arguments was that look, states need to be able to adapt to changing psychological opinions about how -- what is insanity? How do we pin that down? And how does that interact with the moral conviction that a state imposes on somebody when it sentences them to criminal punishments?

 

With the argument shifting to historical focus, Ginsburg jumped in again and asked if we should take into account the fact that in the old days, being found insane meant confinement in mental hospitals which were notoriously worse than prisons. How does that bear in?

 

Alito and the Chief were both very concerned with the expansive nature of what can be evidence of insanity. Alito asked isn't it sufficient to introduce all this evidence of insanity at the punishment phase? Petitioner said that no, that's not sufficient because juries make up their minds before then.

 

But Alito was not convinced. He was definitely the most hostile of the justices to the petitioner’s argument here. At one point, he actually went through the facts of the case in painstaking detail, really painted Kahler as an unsympathetic guy. Kagan actually seemed to agree with him. She asked look, in none of the states that have the insanity defense -- quote, she said, "In none of the 46 states, I'm guessing, would your client be found insane." She asked how often people are really found guilty, and how often is this insanity defense really successfully used?

 

Kavanaugh took a really interesting position. He seemed to be the only justice who really bought, I think, Kansas' argument that they reframed rather than abolished the insanity defense. I don't think that the answer to that question mattered for a lot of the other justices on the whole. I think that they were mostly on Kansas' side here, with the notable exception of Sotomayor and Breyer. But Kavanaugh seemed to buy that distinction, and he supported the leading book on the topic of the insanity defense, a book by Goldstein which argued, in large part, that states need to have the broad discretion to do just the sort of thing that Kansas has done.

 

Gorsuch and Alito took a really interesting tact here and seemed to recognize that there are broader implications for other kinds of crimes. They both wanted to know what would the effect of a decision in petitioner's favor be on strict liability crimes? If, essentially, the states had been allowed, as the Supreme Court has done, to abolish the mens rea requirement for crimes entirely and have strict liability crimes, why is what Kansas has done here really any different?

 

Both petitioner and respondent seem to agree that for one reason or another, which wasn't well articulated, insanity cases are just different. Alito asked a question, which I think was a defining moment for petitioner which was if we went back in time and used the irresistible impulse test, which is an older pre-McNaughton insanity defense that said if you were motivated by -- oh, I'm sorry, it's a post-McNaughton insanity defense which existed briefly and was abandoned. But if you are under an irresistible impulse, you can't control your behavior and you commit a crime, you're insane and you're excused. And he said if we went back to that test, would that be unconstitutional? And petitioner said yes, because there's no consideration of right and wrong.

 

Personally, I think that was a moment where petitioner shot himself in the foot because it undermined his historical argument, his argument that history has always looked at this right and wrong approach. In truth, the states and other countries have tried a whole broad array of approaches from the irresistible impulse test to a variety of different tests. And so by admitting that, that that was unconstitutional, although it was historically tried, it undermines her point, I think, that, really, history has been unequivocal on this.

 

Those justices were largely silent with the exception of Kagan when respondent took the stand. Sotomayor and Breyer were very concerned with [inaudible 09:25], trying to find what Sotomayor called the irreducible minimum.

 

They wanted to focus on just how much really could the state get rid of in terms of insanity defenses and other criminal defenses. Where really was the limit? What could a state do and what constitutional requirements are at a minimum necessary?

 

Breyer focused -- they were both very concerned with this distinction between someone who knows what they're doing is wrong but has no control versus somebody who doesn't know what they're doing is wrong. So Breyer gave the following hypothetical: he said what do we do with a person who kills a person thinking that it's a dog and a person who kills a person because the dog told him to?

 

In the first case, under Kansas' approach, he'd be not guilty because he didn't fall into mental intent. But under Kansas' approach, the second person would still go to jail, but they're both insane, Breyer said, and so why should we treat them differently?

 

The answer that Kansas and the Solicitor General gave is that look, these are judgements for the states to make. They get to determine the various considerations, be they moral, be they penological, be they based on psychological research, but these are the questions that states get to answer, and we don't want the Court to nail down a constitutional rule that prevents states from being flexible here.

 

Kagan didn't seem particularly hostile to Kansas' position, but she was concerned about just how far Kansas could go. She wondered whether Kansas could eliminate moral consideration at sentencing too, whether it could eliminate other defenses, and Gorsuch joined in to ask if Kansas would accept some floor of mens rea inquiry in all cases. To which Kansas said yes.

 

Again, he seemed to be hinting at strict liability cases, and as we know from last term, there was the case of Rehaif v. United States with the Court expressing skepticism about the extent to which strict liability and a lack of mens rea, that we could have no mens rea requirements in certain cases. Both sides, again, seemed to agree that when it came to the comparison of strict liability in regulatory crime cases, they're just different. Insanity cases are just different.

 

When the SG came up, there wasn't a lot of new basis covered, but Kagan seemed, again, to be probing the SG with a way -- somehow to side with Kansas. It was my sense that she wanted to side with Kansas but wanted some sort of limiting principle, some sort of sense that they couldn't eliminate anything, all consideration of mens rea, all criminal defenses, just how far could a state go? It wasn't really clear to me that she got an answer that was satisfactory to her.

 

You know what they say about reading tea leaves and trying to predict the future, but my sense is that Kansas is the winning argument here. I think that Sotomayor and Breyer are solidly on the other -- opposed. Whether Kagan comes along with them, I don't know.

 

Turning now, we'll move along to Ramos. We'll stop at the end and do questions on both cases together, but Ramos is another criminal case. Until 2018, Louisiana had permitted non-unanimous juries in criminal cases. You could have a jury of voting, 10 to convict, 2 to not convict and 10-2 was fine. You didn't need unanimity.

 

Oregon still has that rule. Louisiana changed it but only going forward, so in Ramos' case, he was convicted of first-degree murder by a non-unanimous jury just before the law was changed. And so this argument is a Sixth Amendment argument, whether the Sixth Amendment requires unanimity.

 

The briefing is focused a lot on the historical practice whether unanimity is deeply rooted in our historical practice, but the argument really hinges on a case from 1972 called Apodaca. And Apodaca, the Court actually confronted this question. The question was does the Sixth Amendment in general require unanimity? And then is the Sixth Amendment incorporated against the states? And is that part of the Sixth Amendment, to the extent of the Sixth Amendment requires unanimity? Is it fully applied against the state such that they too need to have unanimous juries?

 

And the Court split 4-1-4, and that creates a whole host of issues for this case. So four justices said no, it's not; the Sixth Amendment does not require unanimity. Four said it did, and Justice Powell ended up being the deciding vote here. He said that the Sixth Amendment does require unanimity as to the federal government, but it doesn’t require it as to the states.

 

I'd say at least most of oral argument, a small majority of the time, was spent on the stare decisis question here. The justices were very concerned with how do you deal with stare decisis when you've got a 4-1-4 case? Although it's 4-1-4 and Powell's decision was not joined by anyone else, the rule that Apodaca set out has basically been undisturbed for 50 years. Oregon and Louisiana have a reliance interest. They've structured their criminal justice systems around this, so what do you make of that problem?

 

And, in fact, Alito actually brought up the fact that last term, there were several dissents in Franchise Tax and Knicks where the dissent really went after the majority for what the dissent called throwing stare decisis aside. And so he said look, we've got very active dissenters last term who really wanted stare decisis to stick. So what do we do with them? How do we distinguish this case from Franchise Tax and Knicks in the reliance interest at stake there?

 

Kagan asked why can't we just say, look, we give the states a lot latitude in criminal justice issues. Why can't we just say look, Apodaca was an anomaly but we're just going to make an exception here. We're just going to let states do something else. We're not going to fully incorporate just this part of the Sixth Amendment against the states.

 

A lot of back and forth between Alito and Kagan here on that point. When it came to the Kansas -- rather Louisiana's argument, the timbre of the Court changed. It became very clear, especially as Louisiana's argument went on, that the Court was becoming increasingly hostile to Louisiana's position.

 

Ginsburg noted that Apodaca -- five votes said that unanimity is required for the federal government and asked are you asking us to reverse that position? Kagan piled on and said are you asking us basically to start from scratch and just treat Apodaca as an anomaly? We're going to start from scratch, answer the Sixth Amendment question from scratch, pretend none of this happened.

 

There was a problem for Louisiana in that the lawyer couldn't give a good sense of what she wanted. Did she want to rely on Powell's opinion in Apodaca? Did she want the Court to start from scratch?

 

Kagan really hit the nail on the head with this confusion in the issue, and she said to Louisiana's counsel, you don't really want us to take this issue fresh, do you? Which caught her off guard, and she said look, your brief says that Powell's opinion is not precedential, but your argument is based in large part on this reliance interest that you've got, that you and the State of Oregon have. But you don't have -- that reliance interest doesn’t make any sense if you're not going to rely on Powell's opinion as precedential.

 

So there was a lot of confusion going back and forth there. Gorsuch jumped in to ask let's turn our focus to the Seventh Amendment. There's an old case on the book—he gave the name, but I didn't catch it—but there's an old case that he said was more than a hundred years old that said the Supreme Court says that the Seventh Amendment requires unanimity for civil jury trials, so why should that there be any difference for criminal trials? Louisiana really couldn't give a good answer on that one.

 

The Chief Justice asked how far would you be willing to depart from unanimity, is 7-5 okay? And then Alito asked what about -- when does it start cutting the other way? When would you rather have, say, a 6-0 opinion versus a 20-1 opinion? What if the key jury were the, say, the same size as grand juries?

 

And then I think that Sotomayor really had one of the best questions and for Louisiana, one of the toughest questions. She asked if you have this parade of horribles if you lose. Suddenly, you've got 36,000 cases where there might have been a split jury and you've got a -- the criminal justice system is going to be overburdened trying to process these cases, and everyone's going to be filing for new trials and habeas petitions, but what about this parade of horribles if you win?

 

If Louisiana can get rid of the anonymity requirement, can they also get rid of the guilty beyond a reasonable doubt requirement? Could they also get rid of the requirement that a jury be a representative cross section of the community? These things are in the text of the due process clause, which was really the heart of Louisiana's argument. So she said where's that line? What can we get rid of and what can you not get rid of?

 

The other really great question, I think, came from Justice Gorsuch. And he said, look, you've got this reliance interest, okay? I'll take that, but what about the people in jail? Gorsuch seemed to accept that -- it seemed that he was on board with the idea that the Sixth Amendment required unanimity. And so he said look, if that's true that unanimity is required by the Sixth Amendment and it's fully incorporated against the states, is your reliance interest sufficient to overrule this constitutional wrong that was imposed on all these people in prison? Isn't the Constitution a document that should endure so we should get it right?

 

Kavanaugh joined him and said, look, assuming that he's right, people have been convicted unfairly and that history shows that Louisiana's law was motivated in no small part by racial animists against black people on juries. Why aren't those concerns enough to overrule your reliance interests? The answer -- I'll give you the answer that respondent gave. It was not -- I didn't really follow why this made sense, but the answer was that it's not unfair that these people went to prison because six jurors is okay.

 

So this was a somewhat confusing thread during the oral argument that Louisiana said look, you've said, the Supreme Court, that six jurors is okay. So if six jurors is okay, surely ten jurors is okay with two dissenters. Now in rebuttal, the respondent said -- and this'll be the last point before we open up to questions. In rebuttal, the petitioner said this 10-2 6-0 distinction, that's not a real -- it matters because it's more -- we can be sure that a jury is unbiased, delivering a good, solid conviction when you have unanimity.

 

Alito didn't seem to buy it, but in response to his “I'm not sure that that's correct,” that speculation argument, the petitioner brought up a better argument, I think, which was that the purpose of the Sixth Amendment is to enshrine a representative cross sample of the community and to prevent racial discrimination within the jury so that you could essentially ice out part of the community. So consider a jury of 12 people, 2 of whom are black, 10 of whom were white, if unanimity is not required, you can exclude those 2 black people from effectively participating in the conviction. That, I think, was probably petitioner's strongest argument of the day.

 

One last point before I open up to questions. The petitioner finished up his rebuttal by returning to this point about stare decisis, and what do we do with Apodaca? And he made what I thought was a really good argument, and he said look, Apodaca, it's actually -- if you were to essentially reverse Apodaca, what you're not actually doing is reversing precedent here. You're actually, by getting rid of Apodaca, settling law that's already been around forever because before Apodaca and its 4-1-4 decision introduced all this confusion into the law, you had opinions that said the Sixth Circuit requires unanimity. And you had opinions that said when we incorporate, it's full incorporation.

 

So if you reversed Powell's opinion in Apodaca, what you're doing really is simply enshrining those two principles and saying, look, this is what we've held in different cases, disparate cases over time. We're just going to re-enshrine it here. If you really actually affirmed Powell in Apodaca, what you'd be doing is unsettling the law, allowing states to open Pandora's box, as Justice Kagan and Justice Sotomayor hinted at when they were probing for limiting principles.

 

Suddenly, the law is unsettled. Where is the limiting principle? So this case, when the question is do we overrule Apodaca, it's an unusual precedential decision or unusual stare decisis concern because it's not -- it's stare decisis in reverse. You're reversing, yes, but you would actually be unsettling the law rather than settling the law.

 

With that, oral arguments ended, and I will open it up to questions.

 

Micah Wallen:  Thank you, GianCarlo. We'll now go to our first question.

 

Bob Fitzpatrick:  All right. Bob Fitzpatrick here in D.C. I'm curious in Ramos, to what extent did the issue of race in Louisiana, and surprisingly the derivation in Oregon was raised also, to what extent did race seem to drive any of the justices on the merits or was the race discussion limited to Kavanaugh's discussion about your reliance interest is trumped by the genesis of the statute?

 

GianCarlo Canaparo:  So race was not a large part of the oral argument, but in addition to Kavanaugh's point, there was an interesting exchange with Justice Alito and the petitioner. And he said look, essentially, if race is what you're going on here, then what would happen -- does your argument fall apart if a state enacted a non-unanimity rule based on, let's say, perfectly legitimate interests, be they whatever they are, but perfectly legitimate non-racial interests, doesn't your argument dissolve if there's not a racial animist behind the law?

 

      And petitioner said no, no. Look, race is essentially the icing on the cake here. It's how we know that what was going on was really bad, but when you look at the history of the Sixth Amendment and the history of jury trials, unanimity has always been a requirement. So even if race wasn't a concern here, we would still win.

 

Micah Wallen:  All right. We'll now move to our next question.

 

Caller 2:  Was there any discussion in the Kansas case about the difference between the ability for the Court to discretionarily decide that they're going to do a mens rea instead of a bifurcated trial, you're not guilty by reason of insanity, or whether when it's just mandatory as it is -- or as it would be in Kansas under the new regime. Just curious about the discretionary factors.

 

GianCarlo Canaparo:  Sorry, I missed the first part of your question. Would you mind asking that again?

 

Caller 2:  Yeah. Was there any discussion of how some states have a discretionary scheme where they'll either have a not guilty by reason of insanity, bifurcated trial or the judge can decide to make it a mens rea only dissents versus mandatorily as in Kansas where it has to be a mens rea defense? Was there any discussion of that and whether that would play into the constitutional factors?

 

GianCarlo Canaparo:  No, there was no discussion of that. The closest I think the Court got really was to -- I think Ginsburg's question was really the closest in terms of exploring alternatives when she asked what about guilty but mentally ill? But no, no discussion there about discretion versus mandatory approaches.

 

Micah Wallen:  And not seeing any other questions roll in. GianCarlo, did you have any closing remarks?

 

GianCarlo Canaparo:  No. I think that's about it, but I can be reached at [email protected], if there are any follow up questions.

 

Micah Wallen:  Wonderful. On behalf of The Federalist Society, I'd like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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