On March 23, 2020, the Supreme Court, by a vote of 6-3, held that the Due Process Clause does not require states to adopt a specific insanity defense to criminal liability. In an opinion written by Justice Kagan, the Court reaffirmed its 1968 plurality opinion in Powell v. Texas, 392 U. S. 514, declaring that criminal responsibility "is animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time." The Court explained that the relationship between mental illness and criminal liability, in particular, is an ongoing dialogue between the law and psychology, and the Due Process Clause does not require that dialogue be frozen in "a rigid constitutional mold." GianCarlo Canaparo will discuss the opinion, its implications, and the dissent written by Justice Breyer.
GianCarlo Canaparo, Legal Fellow, The Meese Center for Legal and Judicial Studies, The Heritage Foundation
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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, March 23, 2020, 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 titled, “Courthouse Steps Decision on Kahler v. Kansas.” My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are fortunate to have with us GianCarlo Canaparo, who is a Legal Fellow at The Meese Center for Legal and Judicial Studies at The Heritage Foundation. 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: Thank you, Micah. Today, this morning, the Supreme Court issued an opinion in the case of Kahler v. Kansas. And the overview is that it held in a 6-3 opinion by Kagan, joined by Roberts, Thomas, Alito, Gorsuch, and Kavanaugh, that the Due Process Clause does not require the states to adopt a specific insanity defense to criminal liability.
So I’m going to start out by a brief discussion of the facts of the case because the nature of the respondent, defendant below Mr. Kahler’s mental illness, is relative to this inquiry. And in this case, what he did was he had what he described as a psychotic break. And after a long and very messy divorce, custody proceeding and battle, he went to his former mother-in-law’s house where his ex-wife, or estranged wife, and children were, and went to the house and shot every member of his family who was there besides his son who was allowed to leave.
He was charged with capital murder. And he wanted to argue that his psychotic break, although it did not allow him to appreciate the wrongness or moral culpability of what he did. Although he did form the intent, premediated murder -- he formed the requisite mens rea. He did not know at the time that what he was doing was morally wrong.
Now this matter because under what we would call the conditional or common insanity defense, proof of insanity renders one incapable of being convicted. You are “not guilty by reason of insanity.” Kansas had changed its insanity defense. What Kansas allows a party to do is to use the evidence of insanity to defeat mens rea. However, it is not in accordance with the traditional or more commonplace insanity defense when you are “not guilty by reason of insanity.” It only is allowed at the pre-sentencing stage to dispute mens rea.
It is allowed, evidence of mental insan- -- mental defect is allowed then, again, at the sentencing stage as a reason to judge someone not fully capable to [inaudible 3:09] punishment to have someone sent to a mental hospital instead of a prison.
Now, he wanted at trial to raise the traditional insanity defense, and that was shot down by the trial judge in Kansas because that had been abolished. And he raised the argument on appeal that the Due Process Clause and the Eighth Amendment actually mandates a particular insanity defense, mandates exculpation when one is not morally cognizant or doesn’t know that one has done is morally wrong. So that was the issue: does the Due Process Clause and the Eighth Amendment require a particular formation of the insanity defense, specifically the one which is “not guilty by reason of insanity” hinging on moral knowledge or moral culpability?
The Supreme Court said no. It’s an interesting opinion. It’s written by Justice Kagan. Interesting to start off with what it does not do. And as an explanation, I’ll say that my colleague Paul Larkin and I wrote a law review article published in the Harvard Journal of Law and Public and Policy a few months ago on this case. And what we did is we started out with an originalist understanding of the Due Process Clause. What is it that the text of the clause say? Does the text mandate a particular substantive rule for state criminal law? And of course it doesn’t.
But what’s really interesting about Kagan’s opinion is that that’s not where he starts. She does not start with the text, and I’ll get to a theory about why that is. But she says simply that -- she starts off with the rule in Due Process cases, which is -- she says it’s just a high bar. A substantive criminal provision, or criminal rule of liability only violates Due Process if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And then she goes through a variety of cases, including Powell and Clark where the Supreme Court has said that substantive rules of criminal law, especially in the context of the insanity dissent, are -- they raise uncertainties about the human mind, the mental relationship between insanity, morality, criminal culpability and, of course, psychological understanding of what it means to be insane so that these are issues that must be left for the state governance, not constitutional law.
So Kagan framed this opinion as one very much in line with existing precedent. We don’t have to do much, we don’t have to reinvent the wheel here. We’re not going far beyond where we’ve been before. This is a matter, pretty much, of low precedent. And she turns to the history of the insanity defenses. And this is interesting because any due process argument like this is going to rely very heavily on historical arguments because the standard is something rooted in the traditions and consciousness of the people.
So there’s this debate that goes on between the majority’s opinion and the dissent by Breyer, joined by Sotomayor add Ginsburg about what is the history of the insanity defense. Is this moral culpability element, the required part of it? And throughout the opinion, Kagan reminds the reader that this is a really high bar. It must absolutely rooted in tradition. It cannot be, even the favored standard of many available standards; it must be the bedrock of our understanding.
And that’s really where the debate comes down between the dissent and Justice Kagan. And Justice Kagan goes through the history, and in my opinion, she’s got the better argument here than the dissent. That since the earliest British legal scholars that are writing about the nature of the insanity defense, there’s been a huge debate. Is it purely limited to cognition; that is, are you aware of what you’re doing? Are you able to form the intent required? Is it volition? Is it morality? There’s this great debate, and for a while, coming out of the famous M’Naghten text, in the early 1800s in Britain, there was this element of morality. And that really swept the nation for a while until it didn’t. Then you had a volitional test. You had morality, the appreciation of morality with an appreciation of legality.
And so she goes through this history and shows that even if the morality standard has been sort of the “go-to” standard, or the most preferred standard, it is not one so deeply rooted in the nation’s history that it must be fundamental, that crystalizing it in its constitutional rule is mandated by the Due Process Clause. And she goes through a policy-based rationale for this as well, which is, over time, our understanding of what mental illness is and what it means is constantly changing. The law is constantly in what she called a “dialogue with the field of psychology” to understand what insanity is.
But the legal determination of insanity for the purposes of escaping criminal liability or mitigating criminal punishment is not purely a psychological question. It is as much a question of a particular group of people or states’ conception of morality, and when does insanity excuse one from the moral repercussions that are wrapped up in criminal sanctions. And she says that this dialogue, this tension between morality and the legal ramifications and psychology and the nature of this and the scientific understanding, insanity is one of a constant give and tug, pulled back and forth, one which must be open to experimentation in state laboratories and to impose -- to pick one, to pick one determination of how those things interact and to constitutionalize it freezes it in time, like one written in stone. It would end the ability of states to experiment. It would end all ability for the law to react to developments in psychological understanding; to -- for the people, as organized in the states, to have sifting conceptions of when punishment should adhere to a particular conduct, when conduct is morally blameworthy.
And what she says Kansas has done is shifted -- let’s just say that when one commits the crime with the intent, even if one doesn’t know that it’s morally wrong, they should still be punished. And she’s not prepared to say -- the majority is not prepared to say that that is a judgment, a moral judgment which the Court can set aside. And the Court cannot impose its own moral judgment on this. And she come at the dissent—the dissent is pretty hard—and says that’s what they're doing. They are substituting their moral judgment for Kansas’s. And you can’t do that. And what’s more is that history is not their side. We have been wrestling this back and forth for years, hundreds of years in fact.
So that’s how this breaks down. Essentially, this debate between cognitive impairment -- cognitive insanity and moral insanity, or the standard whether it’s cognitive or moral.
The dissenters go through the history, and they do it differently. And I think in the later portions of this opinion, Kagan responds very well to these arguments. And they say that the focus has always been on morality, and it hasn’t. Further, Kagan conceded that it’s messy. But a lot of the history focuses on cognition, on the ability to form mens rea. And she says, look, ultimately, this, whether it’s -- even if the dissent is correct that there’s a favoring of the morality-based text, it’s not overwhelmingly the case. And in fact, there are 21 states that don’t require a morality-based approach. There are four others that follow what Kansas has done. There are 16 that follow an approach that asks whether the defendant knew that what he was doing was legally wrong. And she says that the dissent concedes this point, that if the Court were to invalidate Kansas’s approach, it would very necessarily have to invalidate any other approach that didn’t expressly embrace this morality-based approach.
So that’s how that case shakes out. The Court says, we’re not going to get involved in these sort of substantive determinations provided that a state has made some provision for insanity, some form of defense, whether it’s cognitive based and the sentencing -- or sentencing -- let me finish that thought. If they have to do something but they're going to give the states a great deal of leeway in how to do it. It’s very important to Justice Kagan’s opinion that evidence of insanity is permissible at the sentencing stage here. What this means going forward is that, I think, that this is -- what Kansas has done is quite possibly the outer limit of what the Supreme Court will allow them to do in terms of limiting the use of insanity defense.
But what’s important and I will -- Justice Kagan goes out of her way to say here is that the Kahler framed this issued as Kansas abolishing the insanity defense. And that’s not what they’ve done. And you’ll see this in the news about this. CNN just put up an article framing the issue in this way too, that Kansas abolished the insanity defense. And that’s not what they did. What they did was they did abolish, in a sense, that common articulation of the insanity defense, but they’ve preserved the insanity defense. They just framed it in a different way. You can use evidence of insanity to defeat mens rea and to mitigate sentences or to advocate for an alternative sentence. But the defense itself is preserved. And the Court makes clear that you’ll need something, some sort of insanity defense is required, but this Court is not going to mandate one or the other because that laboratory that the states provide for substantive criminal law development would be eliminated.
The next question before the Court was the Eighth Amendment, and the Court didn’t address that. It wasn’t properly on appeal. Kahler also argued for the first time at the Supreme Court level, but the Eighth Amendment requires the insanity defense to consider whether the -- he was morally aware -- or aware that what he’s doing was morally wrong. The Court didn’t take up the question because it doesn’t properly raise. So that means that that question is still very much live. I’m sure we’ll see it again because, like I said, Kansas and four other states follow this approach. And that question, in my opinion, is clearer than even the Due Process one. The Eighth Amendment has to do with punishment not conviction. And what Kahler argues is that if it’s punishment itself, to be convicted of a crime, to bear the moniker guilty even if you are not sent to prison, if you're sent to a mental institution late.
His argument is that you cannot be convicted period under the Eighth Amendment, even if no subsequent punishment follows. We’ll see what happens with that issue. It’s very much live. It will undoubtedly come up, probably in another capital case. That’s where we see insanity raised most often and it’s the most -- highest stakes. Because in his case, for instance, he’s now facing the death penalty that was given to him by the jury even after he [inaudible 15:11] his mental insanity.
So that’s what we’re looking forward to in future cases on this issue, and that’s where this stands. And going forward, the last point I want to make is the elephant in the room in this case, which is substantive due process. And this is -- Kahler didn’t frame his case that way. And the Supreme Court didn’t address the case that way. Ultimately, what this case would abound to was the substantive due process claim. He didn’t argue that, say, the legislature was biased in the trial process against someone like him who tries to assert an insanity defense. He didn’t argue that somehow his process was procedurally unfair. He argued that the substantive criminal law doesn’t allow him to show that he is morally blameless and that that’s not right. And that that’s not constitutional.
Ultimately, Kahler’s case boils down to substantive due process claim because what he has argued is that, of the substantive matter, the Due Process Clause requires the particular insanity defense. I think justice Kagan sort of went out of her way to studiously avoid that by framing this case as a matter of well-established prior precedent. So it’s conceivable -- I don't want to pretend to read the tea leaves, but that’s the elephant in the room that was not addressed in this case. And so we’re looking forward to potential future developments there and in the Eighth Amendment space in terms of the insanity defense.
With that, I’ll open it up to questions.
Micah Wallen: There’s our first question, so we’ll go ahead and move to that first question.
Caller 1: So how does this relate to Arizona’s perhaps somewhat unique scheme of “guilty except insane,” which again, sort of fails to address the culpability part of the equation.
GianCarlo Canaparo: Yeah, so the “guilty but mentally ill” or “guilty but insane verdict,” the long short of it is it’s probably safe. That particular verdict has existed for a very long time and is probably even better established in the historical practice than Kansas’s approach. So I think that that approach is going to be safe because, again, it provides some defense for insanity. It provides some mechanism for the criminal justice system to account for insanity, to deal with it. And in fact, it probably provides, in most circumstances, greater protection for a criminal defendant than Kansas’s approach.
Without going into too much detail, we do discuss that particular verdict in some detail in our law review article. Again, if you want to check that out, it’s from Harvard’s Journal of Law and Public Policy. It’s on their homepage there. So if you want to see that, I would recommend that. The article is called “Are Criminals Bad or Mad?”
Micah Wallen: All right. Not seeing any other questions hop in, GianCarlo, is there anything else you want to discuss or any closing remarks for us today?
GianCarlo Canaparo: No. Thank you very much, and thank you all for joining me. And please stay safe and healthy.
Micah Wallen: All right. And 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 firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
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