Kahler v. Kansas: Legislative Elimination of the Insanity Defense
October 16, 2019
The first case heard in the Supreme Court’s October term was Kahler v. Kansas, which deals with Kansas attempting to abolish the criminal insanity defense.
Kraig Kahler was convicted of capital murder after shooting and killing his wife, two teenage daughters, and his wife’s mother. The defense argued that Kahler’s mental illnesses (experts for the defense and the prosecution agreed that Kahler exhibited major depressive disorder, obsessive-compulsive, borderline, paranoid, and narcissistic personality tendencies), prevented him from making rational choices. The prosecution believed Kahler maintained proper criminal intent, and seemingly had a motive. Kahler’s marriage was falling apart after his wife had begun an affair. The prosecution presented the fact that Kahler spared his son’s life as evidence to his intentions because his son, allegedly, sided with Kahler in the imminent divorce. Kahler was sentenced to death by the Kansas trial court, which was upheld by Kansas Court of Appeals and Kansas Supreme Court.
The prosecution also felt they had the law on their side. The Oyez case synopsis summarizes Kansas’ relevant law as follows (emphasis added):
Under Kansas law, a jury cannot consider mental disease or defect as a defense to a crime except insofar as it shows “that the defendant lacked the mental state required as an element of the offense charged.” In effect, this law makes irrelevant “whether the defendant is unable to know the nature and quality of his actions or know the difference between right and wrong with respect to his actions.”
Basically, instead of considering whether Kahler knew right from wrong, the jury could only consider whether Kahler possessed the requisite criminal mind, mens rea. Whether Kahler knew right from wrong is a very different question from whether Kahler intended to kill his victims at the time of the incident. Justice Breyer, in his 2012 Delling dissent, outlined an example of exactly this distinction:
To illustrate with a very much simplified example: Idaho law would distinguish the following two cases. Case One: The defendant, due to insanity, believes that the victim is a wolf. He shoots and kills the victim. Case Two: The defendant, due to insanity, believes that a wolf, a supernatural figure, has ordered him to kill the victim. In Case One, the defendant does not know he has killed a human being, and his insanity negates a mental element necessary to commit the crime. rebut mens rea. In Case Two, the defendant has intentionally killed a victim whom he knows is a human being; he possesses the necessary mens rea.
In both cases the defendant is unable, due to insanity, to appreciate the true quality of his act, and therefore unable to perceive that it is wrong. But in Idaho, the defendant in Case One could defend the charge by arguing that he lacked the mens rea, whereas the defendant in CaseTwo would not be able to raise a defense based on his mental illness. Much the same outcome seems likely to occur in other States that have modified the insanity defense in similar ways.
Kansas’ intent standard, the defense argues, is unconstitutional because it deprives Kahler of Fourteenth Amendment right to due process and Eighth Amendment right against cruel and unusual punishment. Kansas argues, alternatively, that it is free to define its criminal law as it desires, and defendants maintain no “deeply rooted,” historical right to an insanity defense.
Going forward, this case could have widespread criminal law ramifications. Forty-eight U.S. jurisdictions currently apply the “right-wrong” standard, not the Kansas intent standard. A ruling for Kansas could green light other States to begin legislatively eliminating the insanity defense. Not only that, but States could theoretically eliminate other criminal defenses, as noted by Justice Kagan during oral argument. Although, Justice Kavanaugh challenged that assertion, suggesting elimination of other criminal defenses (such as duress) would depend on whether the particular defense has deeply rooted historical longevity. Seems like — if Kavanaugh writes for the majority — his analysis would turn heavily on the history of a criminal defense. Oddly, the dissent in that hypothetical Kavanaugh decision may completely agree with his test, but disagree as to the actual history of the insanity defense. Kahler, Kansas, and all the Justices seem to all have different views on the history of the insanity defense.
Predicting the precise outcome of this case is somewhat difficult. Chief Justice Roberts and Justices Alito, Thomas, and Kavanaugh — from their questions during oral argument and general judicial philosophy — all seem aligned with Kansas. While Justices Ginsburg, Sotomayor, Kagan, and Breyer all seem aligned with Kahler (see also Delling v. Idaho, cert. denied (Breyer, J., dissenting)), which leaves the count at 4–4, and makes Justice Gorsuch the swing vote here. Justice Gorsuch’s judicial philosophy, seemingly, could have him ruling for either side. On one hand, Justice Gorsuch is very libertarian when it comes to defendant’s criminal rights. On the other, his views on federalism and individual State sovereignty may push him to allow Kansas to define their own criminal laws.
In my opinion, the three most likely outcomes are: (1) we get a plurality opinion where Alito writes for the Court, Gorsuch writes a concurring opinion (meaning he agrees with Alito’s decision but differs with the reasoning), and Kagan writes another passionate dissent; (2) Gorsuch writes for the majority in Kansas’ favor; or (3) Gorsuch writes for the majority in Kahler’s favor. This wouldn’t be the first time Gorsuch joined the liberal justices in an opinion, as he did multiple times last term. Overall, though, I see above outcome 1 as the most likely. But either way, it seems like this case will be decided very closely, and we could, once again, see another 5–4, Robert’s Court decision that runs directly parallel down party lines.
It certainly doesn’t help Kahler’s defense that this is a tough case for him facts-wise. Justice Kagan stated it plainly, “I mean, honestly, you (directed to counsel for Kahler) can’t say this, but I can. In none of these [48] states (referencing the forty-eight states that use the “right-wrong” standard), I’m guessing, would [Kahler] be found insane.” It doesn’t seem, as Justice Kagan believes, Kahler would be found not guilty by reason of criminal insanity in any U.S. jurisdiction, but still can Kansas eliminate the defense altogether? Should the jury have been, at least, given the chance to apply the “right-wrong,” criminal morality standard?
In my view, there should be a constitutional right to a defense of insanity (or the better titled, not criminally responsible), particularly in capital cases. Depriving a defendant of his/her life or liberty without the ability to raise proper and longstanding criminal defenses seems, to me, to be a violation of Fourteenth Amendment due process. Additionally, I see the slippery slope as being far too slippery here. Could States theoretically eliminate other longstanding defenses such as duress, intoxication, defense of others, or necessity? Or, as Justices Sotomayor and Kagan state during oral argument, could States then freely make murder a strict liability offense? Meaning, a State could theoretically say, “No matter what, if you are responsible for the death of another, you are guilty of murder.” That seems obviously problematic to me.
Inherit in the Constitution — through the Fifth, Sixth, Eighth, and Fourteenth Amendments — in my opinion, there is a right to raise a proper and fair defense at a criminal trial. Further, I don’t see the federalism problem. While yes States can define their criminal laws, if those laws conflict with the constitutional protections, then they’re struck down according to the Supremacy Clause. Even federalism, in our system, has its limits.
My guess is we won’t see a decision in this case until May at the earliest. Overall, I don’t see the decision in this case as providing any extra insight as to where the Justices are philosophically. But this case could have far-reaching criminal law implications, and could potentially provide additional ammunition for State’s rights advocates looking to further separate the State from federal, constitutional control.
If you want to listen to the oral argument audio recording: you can here.
