Editors Note: The underlying crime committed by the defendant in this case is not discussed below because it doesn't really factor into the question presented and the analysis of the question. If you're curious and don't want to look it up, go ahead and ask in the comments and I'll fill you in.
While I haven't yet had a chance to write the Faithless Electors piece I meant to write, the new Supreme Court term is less than two weeks away, and my goal this year is to read the briefs and write up a brief argument preview before each argument, along with an argument summary, and then an opinion analysis for each case argued before the Court this term. To try to keep up with that schedule, it's necessary to start writing preview about two weeks before each session sitting to give enough time to do the analysis, and so this has taken priority over the Faithless Elector piece (which I'm still hoping to write).
With that said, let's move on to the discussion of the first case of October Term 2019, which will be argued in front of the Court on First Monday, October 7. The case has a deceptively simple question presented: can a state abolish the insanity defense?
While the precise nature and contours of the insanity defense have been regularly debated since humans started discussing philosophical questions, by 1980 there was a relatively consistent approach taken throughout the United States. This approach was largely based on the concept of an understanding of right and wrong on the part of a defendant, which was laid out in its current form in an English case called Queen v. M'Naghten. While this was not an American case, the M'Naghten Rule that it established, stating that a defendant is not guilty if at the time of a criminal act he or she was (1) unable to know the nature and quality of the act being done; or (2) did not know that what was being done was wrong. This was a new articulation of an idea that had been around for millennia holding that people are not responsible for actions that a mental illness or defect prevents them from understanding is morally wrong.
While there has always been push back from some legal, philosophical, and theological circles, the principles established in the M'Naghten Rule are far and away the most commonly accepted approach to questions of insanity. In the 1980's, criticism picked up a bit following the attempted assassination of Ronald Reagan after his shooter, John Hinckley, was found not guilty by reason of insanity. A misunderstanding started to spread amongst the general populace suggesting that being found not guilty by reason of insanity meant automatic release into the community, rather than the more likely scenario - commitment to a mental health facility, usually for a longer period of time than a sentence of guilty would have led to. In response to this popular pushback against the insanity defense, five states, including Kansas, would eventually amend or remove their insanity defenses to remove knowledge of moral malfeasance from the equation entirely.
Kansas argues that, contrary to the arguments of the Petitioner in this case, it retains an insanity defense - just in a different form. However, in reality the utility of this defense has been significantly reduced. Whereas under the M'Naghten rule and its Model Penal Code equivalent (utilized in 45 states and the in the Federal court system) an affirmative defense can always be raised that the defendant did not understand that an act was morally wrong due to mental illness or defect, under the Kansas Rule such evidence can only be presented to try to disprove the voluntary commission of a criminal act.
This gets a little confusing because the terminology being used by the state of Kansas really isn't quite right. The traditional understanding of the elements of a criminal act are that the criminal act requires something called an actus reus, and also something called mens rea. Actus Reus is a physical act necessary to commit a crime. To commit trespass, for instance, the actus reus is actually walking on land that belongs to someone else. Contrarily, the mens rea element of a crime is the mental state necessary to complete the crime. This is typically defined by statute, and can be described in a variety of ways - knowingly, willingly, negligently, etc. The traditional concept of mens rea often was wrapped up with the idea that you knew that the act you were taking was wrong, that you had a "guilty mind," which is the literal translation of the term. Kansas no longer uses the term in this way, instead using mens rea just to ask the question whether there was intentionality in performing the act, not intentionality to commit a crime.
The consequences of this for the insanity defense are tremendous. Let's say, for example, that a defendant has a mental break and believes that he is the reincarnation of Abraham, and that his son is the reincarnation of Isaac. If you aren't religious or have forgotten the story, as a test of his faith, God ordered Abraham to sacrifice his son Isaac on an altar to worship God. While Abraham was upset by this, he took steps to follow through with God's order. At the last minute, God stopped him and told him it had all just been a test. By Biblical accounts, instead of being scarred for life, Isaac was just overjoyed with his father's pious devotion to God. Sheesh. Anyway, Isaac's reaction is neither here nor there for this illustration. If our hypothetical defendant was under this illusion and carried out the sacrifice and was subsequently arrested, the M'Naghten Rule would not hold this person legally culpable because he has no idea that what he is doing is morally wrong - he is incapable of that understanding. In Kansas, however, the question is whether or not the defendant intended to carry out the act itself - and quite clearly he did. Since he meant to carry out the underlying action, despite not having any clue that his action was wrong, the defendant would be guilty.
So, can Kansas do this? The defendant in this case argues no. He argues first that the 14th Amendment Due Process clause bars the states from abolishing the insanity defense entirely. Essentially this is an argument for a "floor" below which states cannot go below when playing around with insanity statutes. For the defendant here, that floor is removing a defense of lack of moral understanding of a crime as a defense. Kansas argues, alternatively, that it is for each state to say what types of behavior are morally culpable and worthy of punishment.
To handle 14th Amendment Due Process claims, the Courts ask whether a particular principle is "fundamental," "deeply rooted," and "implicit in the concept of ordered liberty." This largely means looking at historical practice to determine if a particular principle is widely followed and necessary for justice to be carried out. The defendant here argues that an affirmative insanity defense has always been the standard, and that while states have played around with different formulations of that concept, until recently virtually every state has used a form of the M'Naghten rule - and even now in the dust up of the 80's and 90's involving public misunderstanding of the consequences of an insanity plea, 45 states still recognize the need for a defendant to understand the wrongfulness of an act in order to find that defendant guilty. Kansas, on the other hand, attempts to place historical evidence into the record suggesting that scholars have always argued about the value and appropriateness of the insanity defense in order to suggest that there is not a clear consensus and therefore no "fundamental, deeply rooted, implicit" principle.
A second argument is based on the 8th Amendment's prohibition on cruel and unusual punishment. The defendant makes this as a secondary argument, suggesting that any punishment is cruel and unusual in the event that a defendant is convicted of a crime without an ability to understand how the crime that was carried out was wrong. Kansas argues that this is a misreading of the 8th Amendment's prohibitions, which is focused at punishment's specifically and not at the notion of conviction itself. A 1962 case decided by the Supreme Court is tossed back and forth by the parties for the question of whether it is on point or is an outlier in Supreme Court jurisprudence. Kansas also argues that the defendant didn't preserve this argument by making it in front of the Kansas Supreme Court, and that the Supreme Court should therefore ignore the argument as being jurisdictionally beyond its purview.
Finally, Kansas argues that even if the state wrongly removed insanity as an affirmative defense, it was harmless error in this case because the defendant doesn't fit the definition of insanity. Since this defendant isn't insane, this case is therefore not an appropriate vehicle to rule Kansas's approach to insanity unlawful.
Who has the better argument, and what will happen? I would be surprised if Kansas were to win. While the United States, several states (including many that still use a version of the M'Naghten rule), and a number of private parties supported Kansas' position as amici, the broad array of scholarly opinion falls in favor of the defendant here, including the American Bar Association, ACLU, and American Psychiatric Association, amongst many others. If any principle is deeply ingrained, it certainly seems that an inability to understand that ones behaviors are morally wrong prevents conviction would be it. Most of the justifications for punishment fall apart if there is no moral culpability.
Of course, the Supreme Court doesn't always act logically, and there is now a conservative majority on the Court, so the question is whether or not this will be a viewed as a conservative issue is a legitimate one. There was a time, not that long ago, when basic legal principles applied across ideologies, and this would have been one. I'm no longer sure. You can be fairly confident that the four left-leaning Justices will support the M'Naghten Rule. I suspect there's a good chance that Justices Thomas and Alito will argue the opposite in favor of the "States Rights" type of argument Kansas makes that it should get to experiment with whatever rule it wants to. It is hard to tell what Justices Kavanaugh and Gorsuch will do, although it would not surprise me for Kavanaugh to go with Thomas and Alito and Gorsuch to join the four Justices on the left for this one. Ultimately, though, I think Chief Justice Roberts will decide to uphold the M'Naghten Rule. It really is pretty solidly ingrained in the law, with no indication it is the wrong result Constitutionally. I think the Institutionalist in Roberts will come out in the end in this one.
My best guess - 7-2 for Kahler, opinion by Sotomayor, Thomas and Alito in dissent.
While I haven't yet had a chance to write the Faithless Electors piece I meant to write, the new Supreme Court term is less than two weeks away, and my goal this year is to read the briefs and write up a brief argument preview before each argument, along with an argument summary, and then an opinion analysis for each case argued before the Court this term. To try to keep up with that schedule, it's necessary to start writing preview about two weeks before each session sitting to give enough time to do the analysis, and so this has taken priority over the Faithless Elector piece (which I'm still hoping to write).
With that said, let's move on to the discussion of the first case of October Term 2019, which will be argued in front of the Court on First Monday, October 7. The case has a deceptively simple question presented: can a state abolish the insanity defense?
While the precise nature and contours of the insanity defense have been regularly debated since humans started discussing philosophical questions, by 1980 there was a relatively consistent approach taken throughout the United States. This approach was largely based on the concept of an understanding of right and wrong on the part of a defendant, which was laid out in its current form in an English case called Queen v. M'Naghten. While this was not an American case, the M'Naghten Rule that it established, stating that a defendant is not guilty if at the time of a criminal act he or she was (1) unable to know the nature and quality of the act being done; or (2) did not know that what was being done was wrong. This was a new articulation of an idea that had been around for millennia holding that people are not responsible for actions that a mental illness or defect prevents them from understanding is morally wrong.
While there has always been push back from some legal, philosophical, and theological circles, the principles established in the M'Naghten Rule are far and away the most commonly accepted approach to questions of insanity. In the 1980's, criticism picked up a bit following the attempted assassination of Ronald Reagan after his shooter, John Hinckley, was found not guilty by reason of insanity. A misunderstanding started to spread amongst the general populace suggesting that being found not guilty by reason of insanity meant automatic release into the community, rather than the more likely scenario - commitment to a mental health facility, usually for a longer period of time than a sentence of guilty would have led to. In response to this popular pushback against the insanity defense, five states, including Kansas, would eventually amend or remove their insanity defenses to remove knowledge of moral malfeasance from the equation entirely.
Kansas argues that, contrary to the arguments of the Petitioner in this case, it retains an insanity defense - just in a different form. However, in reality the utility of this defense has been significantly reduced. Whereas under the M'Naghten rule and its Model Penal Code equivalent (utilized in 45 states and the in the Federal court system) an affirmative defense can always be raised that the defendant did not understand that an act was morally wrong due to mental illness or defect, under the Kansas Rule such evidence can only be presented to try to disprove the voluntary commission of a criminal act.
This gets a little confusing because the terminology being used by the state of Kansas really isn't quite right. The traditional understanding of the elements of a criminal act are that the criminal act requires something called an actus reus, and also something called mens rea. Actus Reus is a physical act necessary to commit a crime. To commit trespass, for instance, the actus reus is actually walking on land that belongs to someone else. Contrarily, the mens rea element of a crime is the mental state necessary to complete the crime. This is typically defined by statute, and can be described in a variety of ways - knowingly, willingly, negligently, etc. The traditional concept of mens rea often was wrapped up with the idea that you knew that the act you were taking was wrong, that you had a "guilty mind," which is the literal translation of the term. Kansas no longer uses the term in this way, instead using mens rea just to ask the question whether there was intentionality in performing the act, not intentionality to commit a crime.
The consequences of this for the insanity defense are tremendous. Let's say, for example, that a defendant has a mental break and believes that he is the reincarnation of Abraham, and that his son is the reincarnation of Isaac. If you aren't religious or have forgotten the story, as a test of his faith, God ordered Abraham to sacrifice his son Isaac on an altar to worship God. While Abraham was upset by this, he took steps to follow through with God's order. At the last minute, God stopped him and told him it had all just been a test. By Biblical accounts, instead of being scarred for life, Isaac was just overjoyed with his father's pious devotion to God. Sheesh. Anyway, Isaac's reaction is neither here nor there for this illustration. If our hypothetical defendant was under this illusion and carried out the sacrifice and was subsequently arrested, the M'Naghten Rule would not hold this person legally culpable because he has no idea that what he is doing is morally wrong - he is incapable of that understanding. In Kansas, however, the question is whether or not the defendant intended to carry out the act itself - and quite clearly he did. Since he meant to carry out the underlying action, despite not having any clue that his action was wrong, the defendant would be guilty.
So, can Kansas do this? The defendant in this case argues no. He argues first that the 14th Amendment Due Process clause bars the states from abolishing the insanity defense entirely. Essentially this is an argument for a "floor" below which states cannot go below when playing around with insanity statutes. For the defendant here, that floor is removing a defense of lack of moral understanding of a crime as a defense. Kansas argues, alternatively, that it is for each state to say what types of behavior are morally culpable and worthy of punishment.
To handle 14th Amendment Due Process claims, the Courts ask whether a particular principle is "fundamental," "deeply rooted," and "implicit in the concept of ordered liberty." This largely means looking at historical practice to determine if a particular principle is widely followed and necessary for justice to be carried out. The defendant here argues that an affirmative insanity defense has always been the standard, and that while states have played around with different formulations of that concept, until recently virtually every state has used a form of the M'Naghten rule - and even now in the dust up of the 80's and 90's involving public misunderstanding of the consequences of an insanity plea, 45 states still recognize the need for a defendant to understand the wrongfulness of an act in order to find that defendant guilty. Kansas, on the other hand, attempts to place historical evidence into the record suggesting that scholars have always argued about the value and appropriateness of the insanity defense in order to suggest that there is not a clear consensus and therefore no "fundamental, deeply rooted, implicit" principle.
A second argument is based on the 8th Amendment's prohibition on cruel and unusual punishment. The defendant makes this as a secondary argument, suggesting that any punishment is cruel and unusual in the event that a defendant is convicted of a crime without an ability to understand how the crime that was carried out was wrong. Kansas argues that this is a misreading of the 8th Amendment's prohibitions, which is focused at punishment's specifically and not at the notion of conviction itself. A 1962 case decided by the Supreme Court is tossed back and forth by the parties for the question of whether it is on point or is an outlier in Supreme Court jurisprudence. Kansas also argues that the defendant didn't preserve this argument by making it in front of the Kansas Supreme Court, and that the Supreme Court should therefore ignore the argument as being jurisdictionally beyond its purview.
Finally, Kansas argues that even if the state wrongly removed insanity as an affirmative defense, it was harmless error in this case because the defendant doesn't fit the definition of insanity. Since this defendant isn't insane, this case is therefore not an appropriate vehicle to rule Kansas's approach to insanity unlawful.
Who has the better argument, and what will happen? I would be surprised if Kansas were to win. While the United States, several states (including many that still use a version of the M'Naghten rule), and a number of private parties supported Kansas' position as amici, the broad array of scholarly opinion falls in favor of the defendant here, including the American Bar Association, ACLU, and American Psychiatric Association, amongst many others. If any principle is deeply ingrained, it certainly seems that an inability to understand that ones behaviors are morally wrong prevents conviction would be it. Most of the justifications for punishment fall apart if there is no moral culpability.
Of course, the Supreme Court doesn't always act logically, and there is now a conservative majority on the Court, so the question is whether or not this will be a viewed as a conservative issue is a legitimate one. There was a time, not that long ago, when basic legal principles applied across ideologies, and this would have been one. I'm no longer sure. You can be fairly confident that the four left-leaning Justices will support the M'Naghten Rule. I suspect there's a good chance that Justices Thomas and Alito will argue the opposite in favor of the "States Rights" type of argument Kansas makes that it should get to experiment with whatever rule it wants to. It is hard to tell what Justices Kavanaugh and Gorsuch will do, although it would not surprise me for Kavanaugh to go with Thomas and Alito and Gorsuch to join the four Justices on the left for this one. Ultimately, though, I think Chief Justice Roberts will decide to uphold the M'Naghten Rule. It really is pretty solidly ingrained in the law, with no indication it is the wrong result Constitutionally. I think the Institutionalist in Roberts will come out in the end in this one.
My best guess - 7-2 for Kahler, opinion by Sotomayor, Thomas and Alito in dissent.
