Petitioners Brief — James K. Kahler, Petitioner v. Kansas

Supreme Court briefMay 31, 2019

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No. 18-6135

IN THE

Supreme Court of the United States

___________

JAMES KRAIG KAHLER,

Petitioner,

KANSAS,

___________

Respondent.

On Writ of Certiorari to the

Kansas Supreme Court

___________

BRIEF FOR PETITIONER

___________

JEFFREY T. GREEN

TOBIAS S. LOSS-EATON

CHIKE B. CROSLIN

GABRIEL SCHONFELD

LUCAS CROSLOW

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

NAOMI IGRA

SIDLEY AUSTIN LLP

555 California Street

Suite 2000

San Francisco, CA 94104

(415) 772-7495

May 31, 2019

SARAH O’ROURKE SCHRUP*

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

s-schrup@law.northwestern.edu

MERYL CARVER-ALLMOND

CLAYTON J. PERKINS

CAPITAL APPELLATE

DEFENDER OFFICE

700 S.W. Jackson Street

Suite 903

Topeka, KS 66603

(785) 291-3207

Counsel for Petitioner

* Counsel of Record

QUESTION PRESENTED

Do the Eighth and Fourteenth Amendments permit

a state to abolish the insanity defense?

(i)

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner is James Kraig Kahler. Respondent is

the State of Kansas. No party is a corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

TABLE OF AUTHORITIES .................................

OPINIONS BELOW .............................................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......................................

STATEMENT OF THE CASE..............................

A. Kansas Law...............................................

B. Factual Background .................................

C. Proceedings Below ....................................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. THE CONSTITUTION REQUIRES AN

INSANITY DEFENSE ..................................

A. The Due Process Clause requires some

mechanism to excuse a non-culpable,

mentally ill defendant...............................

B. The Eighth Amendment prohibits criminally punishing the insane .......................

1. Criminally punishing the insane

would have been cruel and unusual at

the Founding .........................................

2. Criminally punishing the insane is

grossly disproportionate and serves

no legitimate purpose ...........................

TABLE OF CONTENTScontinued

C. Either of these constitutional bases prohibits the abolition of the affirmative insanity defense ...........................................

Page

II. KANSAS’S OUTLIER SCHEME VIOLATES THE CONSTITUTION BY ABOLISHING THE INSANITY DEFENSE ..........

A. Kansas has abolished the insanity defense ..........................................................

B. Kansas’s scheme is unconstitutional because it ignores an insane defendant’s

lack of moral culpability ...........................

CONCLUSION ....................................................

ADDENDUM

TABLE OF AUTHORITIES

Page

Ake v. Oklahoma, 470 U.S. 68 (1985) ..........

Atkins v. Virginia, 536 U.S. 304

(2002) ...................................... 12, 13, 31, 32, 34

Ball v. United States, 470 U.S. 856

(1985) .........................................................

BMW of N. Am., Inc. v. Gore, 517 U.S. 559

(1996) .........................................................

Bucklew v. Precythe, 139 S. Ct. 1112

(2019) ......................................................... 30, 31

Clark

Arizona,

548 U.S. 735

(2006) ........................................................ passim

Commonwealth v. McLaughlin, 729 N.E.2d

252 (Mass. 2000) .......................................

Commonwealth v. Rogers, 48 Mass. 500

(Mass. 1844) ..............................................

Davis v. United States, 160 U.S. 469

(1895) .........................................................

Delling v. Idaho, 133 S. Ct. 504 (2012)........ 41, 42

Duncan v. Louisiana, 391 U.S. 145

(1968) .........................................................

Finger v. State, 27 P.3d 66 (Nev. 2001) ....... 17, 20

Ford v. Wainwright, 477 U.S. 399

(1986) .................................................... 14, 30, 33

Foucha v. Louisiana, 504 U.S. 71 (1992) .... 17, 40

Graham v. Florida, 560 U.S. 48

(2010) ............................................. 14, 31, 32, 34

Ingles v. People, 22 P.2d 1109 (Colo.

1933) superseded on other grounds, People v. Hill, 934 P.2d 821 (Colo.

1997) ..........................................................

Jones v. United States, 463 U.S. 354

(1983) .........................................................

Leland v. Oregon, 343 U.S. 790 (1952) ........ 17, 38

Mackin v. State, 36 A. 1040 (N.J. 1897) ......

TABLE OF AUTHORITIEScontinued

Page

In re McElroy, 1843 WL 5177 (Pa. Sept. 1,

1843) ..........................................................

Medina v. California, 505 U.S. 437

(1992) .........................................................

M’Naghten’s Case (1843) 8 Eng. Rep. 718 ... 23, 24

Montana v. Egelhoff, 518 U.S. 37 (1996)

(plurality op.).............................................

Moore v. City of East Cleveland, 431 U.S.

494 (1972) (plurality op.) ..........................

Morissette v. United States, 342 U.S. 246

(1952) .................................................. 13, 26, 41

Mullaney v. Wilbur, 421 U.S. 684 (1975) ....

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567

U.S. 519 (2012) ..........................................

Panetti v. Quarterman, 551 U.S. 930

(2007) .........................................................

Parker v. Ellis, 362 U.S. 574 (1960) (per

curiam) ......................................................

Patterson v. New York, 432 U.S. 197

(1977) .........................................................

Penry v. Lynaugh, 492 U.S. 302 (1989),

abrograted on other grounds by Atkins,

536 U.S. 68 ................................................

People v. Kleim, 1845 WL 4476 (N.Y. Sup.

Ct. Jan. 1, 1845) ........................................

People v. Skinner, 704 P.2d 752 (Cal.

1985) ................................................... 17, 18, 28

Roberts v. State, 3 Ga. 310 (Ga. 1847) .........

Robinson v. California, 370 U.S. 660

(1962) ......................................................... 29, 43

Rochin v. California, 342 U.S. 165 (1952) ... 16, 17

Roper v. Simmons, 543 U.S. 551 (2005) ......

Sinclair v. State, 132 So. 581 (Miss. 1931)

(per curiam) ................................... 18, 28, 29, 30

vii

TABLE OF AUTHORITIEScontinued

Page

Stanley v. Illinois, 405 U.S. 645 (1972) .......

State v. Baker, 819 P.2d 1173 (Kan.

1991) ..........................................................

State v. Bethel, 66 P.3d 840 (Kan.

2003) ....................................................... passim

State ex rel. Causey, 363 So. 2d 472 (La.

1978) ..........................................................

State v. Curry, 543 N.E.2d 1228 (Ohio

1989) ..........................................................

State v. Cegelis, 638 A.2d 783 (N.H.

1994) ..........................................................

State v. Dahl, 783 N.W.2d 41 (N.D. 2010)...

State v. Searcy, 798 P.2d 914 (Idaho

1990) .......................................................... 20, 21

State v. Jensen, 251 N.W.2d 182 (N.D.

1977) ..........................................................

State

Jorrick,

P.3d

610

(Kan. 2000) ................................ 5, 14, 39, 40, 43

State v. Korell, 690 P.2d 992 (Mont.

1984) ..........................................................

State v. Lange, 123 So. 639 (La.

1929) .......................................................... 18, 28

State v. Mahn, 25 Kan. 182 (Kan. 1881) .....

State v. Marler, 2 Ala. 43 (1841) ..................

State v. Olmstead, 800 P.2d 277 (Or.

1990) ..........................................................

State v. Spencer, 21 N.J.L. 196 (N.J. O.&T.

1846) ..........................................................

State v. Strasburg, 110 P. 1020 (Wash.

1910) ................................................... 18, 28, 29

Tison v. Arizona, 481 U.S. 137 (1987) .........

United States ex rel. Smith v. Baldi, 344

U.S. 561 (1953) ..........................................

viii

TABLE OF AUTHORITIEScontinued

Page

United States v. Drew, 25 F. Cas. 913

(C.C.D. Mass. 1828) ..................................

United States v. Lawrence, 26 F. Cas. 887

(C.C.D.D.C. 1835) ......................................

United States v. Pohlot, 827 F.2d 889 (3d

Cir. 1987) ................................................... 6, 41

Washington v. Glucksberg, 521 U.S. 702

(1997) .........................................................

STATUTES AND CONSTITUTION

11 Del. Code § 401 ........................................

18 U.S.C. § 17 ............................................... 37, 38

720 Ill. Comp. Stat. 5/6–2 ............................

Ala. Code § 13A-3-1 ......................................

Alaska Stat. § 12.47.010 ..............................

Ariz. Rev. Stat. § 13-502 ..............................

Colo. Rev. Stat. § 16-8-105.5 ........................

Idaho Code § 18-207 .....................................

Iowa Code § 701.4 .........................................

Kan. Stat. Ann. § 22-3220 (2009) ............ 1, 39, 40

Ky. Rev. Stat. Ann. § 504.020 ......................

Mich. Comp. Laws § 768.21a(1) ...................

Mont. Code Ann. § 46-14-102.......................

Mont. Code Ann. § 46-14-311.......................

N.D. Cent. Code 12.1-04.1-01(1)(a) ..............

Or. Rev. Stat. § 161.295 ...............................

S.C. Code § 17-24-10(A) ...............................

U.S. Const. amend. VIII ...............................

U.S. Const. amend. XIV § 1 .........................

Utah Code Ann. § 76-2-305 ..........................

OTHER AUTHORITIES

Am. Bar Ass’n, Criminal Justice Mental

Health Standards (1989) ................... 18, 19, 42

TABLE OF AUTHORITIEScontinued

Page

Anthony Platt & Bernard L. Diamond, The

Origins of the “Right and Wrong” Test of

Criminal Responsibility and Its Subsequent Development in the United States:

An Historical Survey, 54 Calif. L. Rev.

1227 (1966) ........................................... 21, 22, 23

Antonin Scalia & Bryan A. Garner, A Note

on the Use of Dictionaries, 16 Green Bag

2D 419 (2013) ............................................

Augustine, Questions Concerning the Old

and New Testament, Question 2, cited by

Colin Pickett, Mental Affliction and

Church Law (1952) ...................................

Bilal Ali & Hooman Keshavarzi, Forensic

Psychiatry, in Oxford Islamic Studies

Online (Oct. 30, 2017) ...............................

Daniel J. Nusbaum, The Craziest Reform of

Them All: A Critical Analysis of the

Constitutional Implications of Abolishing

the Insanity Defense, 87 Cornell L. Rev.

1509 (2002) ................................................

Daniel N. Robinson, The Insanity Defense

as a History of Mental Disorder, in The

Oxford Handbook of Phil. & Psychiatry

18 (K.W.M. Fulford et al., eds., 2013).......

David Carrithers, The Insanity Defense

and Presidential Peril, 22 Society (July–

Aug. 1985)..................................................

Edith Weigert, Narcissism: Benign and

Malignant Forms, in Crosscurrents in

Psychiatry & Psychoanalysis 222 (Robert

W. Gibson ed., 1967) .................................

1 Edward Coke, Institutes of the Laws of

England (1853) ..........................................

TABLE OF AUTHORITIEScontinued

Page

Edward P. Mulvey & Carol A. Schubert,

Mentally Ill Individuals in Jails and

Prisons, 46 Crime and Justice 231

(2017) .........................................................

Erich Fromm, The Heart of Man: Its Genius for Good and Evil (1964) ......................

Francis Bowes Sayre, Mens Rea, 45 Harv.

L. Rev. 974 (1932) .................. 17, 20, 21, 22, 23

Frank George, The Cognitive Neuroscience

of Narcissism, 1 J. Brain Behav. & Cognitive Sci., Feb. 2018, at 1 ........................

Genesis ..........................................................

Georgios A. Tzeferakos & Athanasios I.

Douzenis, Islam, Mental Health & Law:

A General Overview, 16 Ann. Gen. Psychiatry 28 (2017) .......................................

Getting Tough on the Mentally Ill, Wichita

Eagle, Jan. 16, 1994 ..................................

H.R. Rep. No. 98-577 (1983) ........ 4, 13, 14, 28, 41

Hearing on H.B. 2328 Before the H. Comm.

on Judiciary, 1994 Leg. ............................

Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401

(1958) .........................................................

Homer D. Crotty, History of Insanity as a

Defence to Crime in English Criminal

Law, 12 Cal. L. Rev. 105 (1924)........ 22, 23, 24

Human Rights Watch, Ill-equipped: U.S.

Prisons and Offenders with Mental

Illness (2003), https://goo.gl/wDAsmW.....

Hurst Laviana, Man Deemed Insane in

1987 Fitness Center Shootings May Move

From Hospital To Care Home, Wichita

Eagle, Apr. 17, 2014 ..................................

TABLE OF AUTHORITIEScontinued

Page

Insanity Ruling Keeps Gunman in State

Hands, Wichita Eagle, June 28, 1990 ......

Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in

U.S. Prisons: A Challenge for Medical

Ethics, 38 J. Am. Acad. Psychiatry L. 104

(2010) ......................................................... 35, 36

Jennifer Bronson & Marcus Berzofsky, Bureau of Justice Statistics, Dep’t of Justice, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-2012 (2017) ...........................

Jonas Robitscher, In Defense of the

Insanity Defense, 31 Emory L.J. 9

(1982) ........................................................

II Life and Letters of Joseph Story (William W. Story ed., Houghton & Wood

1851) ..........................................................

Kan. Dep’t of Corr., Purpose of Administrative Segregation & Appropriate Placements, § 20-104(I)(B)(16) ..........................

Luke 23:34 ....................................................

Marc Rosen, Insanity Denied: Abolition of

the Insanity Defense in Kansas, 8 Kan.

J.L. & Pub. Pol’y 253 (1998) ................ 4, 41, 42

Michael Clemente, A Reassessment of the

Common Law Protections for “Idiots,” 124

Yale L.J. 2746 (2015) ........................... 22, 25, 31

Model Penal Code § 4.01 (Am. Law Inst.

1985) .......................................................... 26, 34

Norman J. Finkel, Insanity on Trial

(1988) .........................................................

Plato, Laws Book IX (Thomas L. Pangle

trans., 1988) (c. 345 B.C.) .........................

xii

TABLE OF AUTHORITIEScontinued

Page

Rael Strous, The Shoteh and Psychosis in

Halakhah with Contemporary Clinical

Application, 12 Torah U-Madda J. 158

(2004) ........................................................

Raymond Spring, The End of Insanity:

Common Sense and the Insanity Defense

(1983) .........................................................

Raymond Spring, Farewell to Insanity: A

Return to Mens Rea, 66 J. Kan. B. Ass’n

38 (1997) .................................................... 4, 5

Robert Kinscherff, Proposition: A Personality Disorder May Nullify Responsibility

for a Criminal Act, 38 J.L. Med. & Ethics

745 (2010) .................................................. 3, 6, 7

Stephen J. Morse, Moral and Legal Responsibility and the New Neuroscience, in

Neuroethics: Defining the issues in theory, practice, and policy (Judy Illes ed.,

2004) ..........................................................

Spa Killer Ready for Release, Wichita

Eagle, Oct. 1, 1995 ....................................

Walter Sinnott-Armstrong & Ken Levy, Insanity Defenses, in The Oxford Handbook

of Philosophy of Criminal Law (John

Deigh & David Dolinko eds., 2011) ..........

Wayne R. LaFave, 1 Substantive Crim. L. §

7.1 (3d ed. 2018) ........................................ 34, 40

4 William Blackstone, Commentaries

(1769) .........................................................

OPINIONS BELOW

The Kansas Supreme Court’s opinion is published

at 410 P.3d 105. Joint Appendix 205–280 (“J.A.”).

The trial court’s relevant order is unpublished.

JURISDICTION

The Kansas Supreme Court issued its opinion on

February 9, 2018. J.A. 205. It denied a motion for

rehearing on April 26, 2018, and issued a corrected

denial order on May 1, 2018. Id. at 281–82. On July

2, 2018, Justice Sotomayor extended the time within

which to file a petition for writ of certiorari to September 28, 2018. The petition was filed on that date

and granted on March 18, 2019. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment provides: “Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”

U.S.

Const. amend. VIII.

The Fourteenth Amendment provides, as relevant:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law.” U.S. Const. amend. XIV § 1.

Kan. Stat. Ann. § 22-3220 (2009) provides: “It is a

defense to a prosecution under any statute that the

defendant, as a result of mental disease or defect,

lacked the mental state required as an element of the

offense charged. Mental disease or defect is not otherwise a defense.”

STATEMENT OF THE CASE

Whether under due process, the Eighth Amendment, or both, Kansas cannot constitutionally abolish

the insanity defense. Anglo-American law has for

centuries recognized insanity as an excuse to criminal

liability. As the law grew to insist that punishment

fall only on the blameworthy, it naturally followed

that individuals with no meaningful ability to make

moral judgments could not be held criminally liable.

That was the law in every state until 1979. And in

almost every U.S. jurisdiction, it is still the law today.

But not in Kansas.

A. Kansas Law

For more than a century, Kansas’s treatment of the

insanity defense was well within the mainstream.

The state followed the M’Naghten rule, under which a

defendant is excused from criminal responsibility

“(1) where he does not know the nature and quality of

his act, or, in the alternative, (2) where he does not

know right from wrong with respect to that act.”

State v. Baker, 819 P.2d 1173, 1187 (Kan. 1991).

Kansas adopted M’Naghten in 1881, State v. Mahn,

25 Kan. 182, 185–86 (Kan. 1881), and the Kansas

Supreme Court “steadfastly adhered to that test”

from then on. Baker, 819 P.2d at 1187.

But beginning in the late 1980s, “public fear and

frustration about crime” peaked, and policymakers

reacted by—as one headline memorably put it—

“Getting Tough on the Mentally Ill.” Wichita Eagle,

Jan. 16, 1994, at 1B. In Kansas, attention focused on

two cases where men committed deadly shootings but

were acquitted because of their exceptionally disturbed mental states. In both cases, the defendant’s

insanity was undisputed. See Spa Killer Ready for

Release, Wichita Eagle, Oct. 1, 1995, at 1B; Insanity

Ruling Keeps Gunman in State Hands, Wichita Eagle, June 28, 1990, at 1A. And in both cases, the defendant was quickly acquitted—and then committed—as a result. Id.; J.A. 309–12 (statement of Allen

Cox); see also Hurst Laviana, Man Deemed Insane in

1987 Fitness Center Shootings May Move From Hospital To Care Home, Wichita Eagle, Apr. 17, 2014

(describing one defendant’s transfer after 25 years of

hospitalization).

These unique cases loomed large in the hearings

that produced Kansas’s current law.1 Rather than

viewing these prompt resolutions as the natural and

proper functioning of a mechanism designed to excuse

the mentally compromised and morally blameless,

witnesses portrayed the insanity defense as “automatic,” insinuating overuse and malingering.2 J.A.

307. The legislative committee heard that defendants raising insanity were “treated about the same as

someone who had committed a traffic violation,” id. at

305, and were declared not guilty after an “entire trial [that] did not last any longer than 5 minutes.” Id.

at 311. The public reaction to these cases tied into

the larger backlash following the acquittal of John

1 Although the statute here was enacted in 1995, the relevant

hearings were held during the 1994 legislative session.

2 “Contrary to widespread public belief, the defense of ‘legal

insanity’ is not commonly raised, and, when raised, is rarely

successful. . . . Moreover, a person acquitted by reason of insanity is automatically committed to a mental hospital for an indeterminate period that often exceeds the sentence that would

have been imposed if she or he had been convicted.” Robert

Kinscherff, Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act, 38 J.L. Med. & Ethics 745, 746

(2010). Thus, “[i]n practice, the insanity defense is usually

raised when there is a severe psychiatric disturbance such as

acute psychosis with its often extreme disruptions of experiences

of reality.” Id.

Hinckley, Jr., for his attempted assassination of President Reagan. See Marc Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J.L. &

Pub. Pol’y 253, 256 (1998) (collecting public opinion

data and politicians’ statements about the defense

after Hinckley’s acquittal).

The Kansas legislature turned towards a proposal

to replace the insanity defense with a “mens rea approach,” which treated mental disease or defect as

relevant only to the defendant’s ability to form the

requisite scienter for the offense. A key advocate for

this proposal was law professor Raymond Spring.

See J.A. 290. He believed that the M’Naghten rule

was a significant—and “monumentally wrong”—

departure from the law’s prior treatment of insanity.

Raymond Spring, Farewell to Insanity: A Return to

Mens Rea, 66 J. Kan. B. Ass’n 38, 38 (1997). In his

view, the mens rea approach would merely “return

‘consideration of the matter of a defendant’s possible

mental disorder to the place assigned that issue

throughout the development of the law prior

to M’Naghten.” Id. at 45. In fact, however, as Congress explained in rejecting the mens rea approach,

“[t]he M’Naghten Rules were not a statement of new

law; they were merely an official pronouncement of

the contemporary state of the insanity defense, which

focused on the defendant’s ability to distinguish right

from wrong.” H.R. Rep. No. 98-577 at 33 (1983). This

has long been the case. See infra pp. 20–27.

Thus, although Professor Spring recognized that

“insanity . . . disappears as a separate defense” under

the mens rea approach, Spring, supra, at 45, he did

not seem to realize—and did not tell the Kansas legislature—that the mens rea approach would exclude

an entire category of defendants who had historically

been in the insanity defense’s heartland: Those

whose mental state rendered them morally blameless. See id. at 46; J.A. 328 (describing Professor

Spring as testifying that the M’Naghten rule contains

only a cognitive component, excusing only defendants

who “do not know what they are doing”). Professor

Spring also expressed the view that due process does

not require any insanity defense so long as evidence

of mental disorder is not completely barred. Spring,

supra, at 44.3

Kansas adopted this proposal, “legislatively abolish[ing] the insanity defense.” State v. Jorrick, 4 P.3d

610, 617 (Kan. 2000); see State v. Bethel, 66 P.3d 840,

844 (Kan. 2003) (“The insanity defense . . . has been

abolished in Kansas . . . .”). The shift from Kansas

law as it had existed from 1881 through 1995 was

significant. Now, a defendant’s mental illness is relevant only if it left him unable to form the mental

state required to commit the charged offense. There

is no further inquiry aimed at judging whether the

defendant’s state of mind was morally blameworthy.

It does not matter if the defendant could understand

whether his actions were unlawful or whether they

were morally wrong. And crucially, these moral or

rational defects almost never negate even the narrowest criminal states of mind. “[A] man who commits murder because he feels compelled by demons

still possesses the mens rea required for murder.”

3 Professor Spring’s opposition to the insanity defense reflected his view that affirmative defenses in general “have no place

in the criminal law, since . . . an affirmative defense necessarily

operates to excuse one who has committed a harmful act with a

blameworthy state of mind.” Raymond Spring, The End of Insanity: Common Sense and the Insanity Defense 59 (1983).

United States v. Pohlot, 827 F.2d 889, 900 (3d Cir.

1987).4

B. Factual Background

When Kraig Kahler killed four members of his family, he was experiencing overwhelming obsessive

compulsions and extreme emotional disturbance, and

may have dissociated from reality. He had long suffered from a mixed obsessive-compulsive, narcissistic,

and histrionic personality disorder, and had recently

lapsed into a severe depression, causing him to reach

the point of decompensation. J.A. 84–98.

These disorders are not merely a collection of unpleasant character traits. Rather, they reflect an entrenched mental state often marked by biological and

cognitive abnormalities. Frank George, The Cognitive

Neuroscience of Narcissism, 1 J. Brain Behav. & Cognitive Sci., Feb. 2018, at 1, 6 (noting that narcissists

have consistent structural deficits in the anterior insular cortex). Extreme narcissism causes “the distortion of rational judgment,” sometimes “to the point of

psychosis” or “the outbreak of insanity.”

Erich

Fromm, The Heart of Man: Its Genius for Good and

Evil 73, 76 (1964). It produces “emotional reactions

of escape from frustration by repression, distortion,

and denial.” Edith Weigert, Narcissism: Benign and

Malignant Forms, in Crosscurrents in Psychiatry &

Psychoanalysis 222, 229 (Robert W. Gibson ed.,

1967). The “functional impairments associated with

personality disorders can be severe and similar to the

functional impairments associated with mental disorders” that have historically established legal insanity. Kinscherff, supra, at 750. Scholars have thus

4 Montana, Idaho, and Utah have similarly abolished the insanity defense. Mont. Code Ann. §§ 46-14-102, 46-14-311; Idaho

Code § 18-207; Utah Code Ann. § 76-2-305; see Add. 24–25.

recognized that “the clinically and scientifically

soundest approach, and the jurisprudentially wiser

course, is to permit juries and judges to determine

whether impairments ascribed, in whole or in part, to

a personality disorder are sufficiently impairing to

nullify responsibility for a criminal act.” See id. at

755.

Maintaining a perfect public image was the focal

point of Mr. Kahler’s disordered personality. He

“thrived on . . . self-importance, community prestige,

and being perceived as [having] an ideal or perfect

marriage.” J.A. 92. Although undiagnosed at the

time, Mr. Kahler’s fixation on his image was only

part of a severe obsessive compulsive disorder. Mr.

Kahler demonstrated “extreme inflexibility about social mores” and fixated on Karen Kahler’s public role

as a “trophy wife.” Id. at 91–92. Karen, for her part,

was “very proud, but insecure.” Id. at 65. She

“seemed to act as if she was expected to be the center

of attention.” Id. at 64. Mr. Kahler likewise “imposed stubborn controls [over] his family” members,

who “habituated to the routine” for many years. Id.

at 91. He was obsessively frugal, described by some

as a “tightwad” who would, for example, “borrow[] rather than purchase tools.” Id. at 63. This, too, reflected his obsessive need to manage every aspect of

his family. Id. at 60–95.

In summer and fall 2008, however, these obsessively enforced routines began to disintegrate. The family moved from Texas to Missouri, where Mr. Kahler

had accepted a job as the director of water and light

for the City of Columbia. J.A. 213. Karen had begun

an affair with a woman just before the move, and it

continued and deepened afterwards. Id. at 213–14.

Mr. Kahler was unable to cope with circumstances in

which he was not Karen’s “social, psychological, and

sexual center.” Id. at 93–94. He was subsequently

charged with domestic assault, his first brush with

criminal law. Id. at 131. Service by police of an arrest warrant at a public city council meeting received

substantial press coverage. Id. at 33. Mr. Kahler believed that Karen had orchestrated this to humiliate

him. See id. By April 2009, Karen had filed for divorce, and she and the children had left the family

home. Id. at 214.

His longstanding obsessions overtook him, distorted

further by his growing depression. Mr. Kahler’s deterioration was obvious to his family, friends, and colleagues. J.A. 43–44. One family friend believed Mr.

Kahler had “gone off the deep end.” Id. at 64. Mr.

Kahler reported that he was unable to concentrate at

work, and felt as if “he was losing his mind.” Id. at

65, 80–82.

His behavior became more extreme and unusual.

He monitored Karen’s communications with her new

partner, even bringing in phone records to show his

therapist the frequency of their conversations and

texts. J.A. 61–62. At one point he drove 150 miles in

an attempt to catch her with her lover. Id. at 62. He

also hired a private investigator to watch them. Id.

at 70. By fall 2009, his mental illness had so progressed that he was no longer able to perform his duties, and the City of Columbia fired him. Id. at 46–

47. Having lost the paychecks that assured his control over his life and circumstances, he began storing

cash “in a very safe place.” Id. at 73. Although a

therapist warned him that arguing with his wife

through his daughters would harm his relationship

with them, “he would obsessively try to get information from [them] about [his wife].” Id. at 46. He

also began objectifying his daughters. Whereas before the strife with Karen, he had effusively praised

his daughters, afterwards he harbored only negative

thoughts about them. Id. at 70–71, 97. Mr. Kahler’s

examining psychiatrist concluded that his “persisting

extremely harsh, unforgiving, and condemnatory attitude” towards his daughters was “evidence of severe

major

depression

and

obsessive-compulsive/

narcissistic personality deterioration.” Id. at 97.

Mr. Kahler’s career was over, his family had fallen

apart, and he was facing financial setbacks and insecurity. He had “lost everything in terms of what he

thought was important to him.” J.A. 45; id. at 70–72.

His mental state concerned his parents so much that

they insisted he move back to their ranch for his own

well-being. Id. at 30–32.

As Mr. Kahler became more and more depressed,

he “externalized the source of all the marital problems” onto Karen and her lover—“blaming only

them,” and making Karen the “focus[] [of] all of his

anger.” J.A. 96–97. His obsessive fixation on Karen’s

betrayal extended to his teenaged daughters, whom

he felt had sided with and “bec[o]me their mom.” Id.

at 69; see also id. at 97 (reflecting Mr. Kahler’s belief

that “all [of his daughters’] actions became merely the

extension of or equivalent to Karen”). By contrast,

Mr. Kahler maintained a relationship with his tenyear-old son, whom he felt had remained aligned with

him in the divorce. His obsession with his children’s

loyalty bred a strong attachment to his son and a

“pathological detachment” from his daughters. See

id. at 85.

At Thanksgiving, Mr. Kahler’s son joined his father

and grandparents at the family ranch, while Karen

and the daughters went to Karen’s sister’s home.

J.A. 214. Mr. Kahler’s son was supposed to rejoin his

mother and sisters on Saturday, November 28th to

take part in the family’s tradition of spending the

weekend after Thanksgiving with Karen’s grandmother. Id. The morning of the 28th, however, Mr.

Kahler’s son asked for permission to stay with his father instead. Id. Karen said no, and so Mr. Kahler’s

mother drove the boy to meet Karen while Mr. Kahler

was out cashing his final paycheck. Id. at 214, 73.

A few hours later, Mr. Kahler “snapped.” J.A. 72.

He drove to Karen’s grandmother’s home in Burlingame, Kansas. In his vehicle he had three or four rifles and ammunition, along with hunting and camping equipment, all of which he routinely kept in his

car. Id. at 73. He entered the home and used a rifle

to kill Karen, his daughters, and Karen’s grandmother. His son ran out the back door and escaped unharmed. Id. at 215. Karen’s grandmother’s LifeAlert

device recorded a portion of the shootings, and captured Mr. Kahler exclaiming: “Oh s**t! I am going to

kill her . . . G-d damn it!,” id. at 62, 232, in a tone

that indicated disbelief of and dissociation from his

actions. See id. at 48. Despite ordinarily possessing

excellent recall, Mr. Kahler has consistently been unable to remember the events of that night, another

symptom suggesting short-term dissociation. Id. at

87, 95, 98–99.

Mr. Kahler avoided law enforcement on the night of

the shootings. He was arrested the next day, without

incident, when police discovered him walking down a

country road. J.A. 215.

C. Proceedings Below

Mr. Kahler was charged with capital murder, four

counts of first degree murder, and one count of burglary. ROA Vol. 1 p.13; see also J.A. 1. In preparation for his trial, two forensic psychiatrists evaluated

him for several months. The two doctors—one serving as the defense’s expert and one serving as the

State’s—agreed on a great deal. Both experts concluded that Mr. Kahler suffered from obsessivecompulsive personality disorder, major depressive

disorder, and borderline, paranoid, and narcissistic

personality tendencies. J.A. 74, 84–88, 142–146.

Dr. Peterson, the defense expert, concluded that

Mr. Kahler’s depression at the time of the shooting

was so severe that Mr. Kahler did not make a genuine choice to kill his family members. Rather, Dr. Peterson concluded Mr. Kahler “felt compelled and . . .

basically for . . . at least that short period of time

completely lost control” of his faculties. J.A. 48. Dr.

Peterson found “some suggestion of this” in Mr.

Kahler’s exclamations from the night of the shootings, which seemed to “recognize[] that he could not

stop from killing his family save [his son].” Id. at 85;

see also id. at 48–49. In other words, Mr. Kahler’s

mental state had been so “severely degraded . . . that

he couldn’t refrain from doing what he did.” Id. at 49.

Mr. Kahler proposed instructions on both diminished capacity and insanity as an affirmative defense.

The trial court rejected them as prohibited by Kansas

law. J.A. 242–44. The jury, instructed that it could

consider Mr. Kahler’s illness only to determine

whether he had the intent to kill, id. at 176–77, found

him guilty on all counts. Id. at 181–90. The same jury returned a death verdict after hearing additional

evidence of Mr. Kahler’s mental state, and Mr.

Kahler was formally sentenced to death in October

2011. Id. at 203–04.

Mr. Kahler appealed to the Kansas Supreme Court,

raising Eighth and Fourteenth Amendment claims.

See J.A. 11–14; Cert. Reply Add. 19. The Kansas Supreme Court rejected Mr. Kahler’s constitutional

challenges because “the same arguments . . . were

considered and rejected” in State v. Bethel, 66 P.3d

840 (Kan. 2003). J.A. 243–44. Bethel had upheld

Kansas’s mens rea approach against a due-process

challenge, concluding that the affirmative insanity

defense was an invention of the Nineteenth Century,

“not so ingrained in our legal system” to rank as fundamental. 66 P.3d at 851. Bethel also rejected an

Eighth Amendment challenge to the same statute because Kansas law “does not expressly or effectively

make mental disease a criminal offense.” Id. at 852.

Having concluded that “a review of those arguments

or of Bethel [was] not warranted,” the court affirmed

Mr. Kahler’s conviction and death sentence. Id. at

244–45.

Justice Johnson dissented, distinguishing Bethel

because it was not a death penalty case: “At the very

least, this court has the obligation to independently

analyze whether the procedure of replacing the insanity defense with the mens rea approach undermines

the reliability of the jury’s determination to impose

the death penalty.” J.A. 271.

SUMMARY OF ARGUMENT

The Constitution requires states to provide some

mechanism to excuse criminal defendants whose

mental states render them blameless. A mentally ill

person who commits a harmful act with no rational

appreciation that it is wrong lacks the essential prerequisite for criminal punishment: “moral culpability.” See Atkins v. Virginia, 536 U.S. 304, 306 (2002).

That has been the unwavering judgment of theologians and lawgivers for thousands of years. And AngloAmerican law has uniformly given effect to that

judgment by making insanity an affirmative defense.

Yet Kansas—in a misinformed reaction to a pair of

headline-grabbing cases—has departed from this established view by abolishing the insanity defense. In

Kansas, an insane defendant’s lack of moral culpability is now irrelevant. All that matters is whether he

could form the minimal mental state required to

commit the offense, which even very disturbed people

generally can do.

This Court does not lightly tread on a state’s administration of criminal justice. But when a state

oversteps constitutional boundaries, the Court has

not hesitated to enforce them. This is such a case.

Kansas’s abolition of the insanity defense violates

both the Fourteenth Amendment’s Due Process

Clause and the Eighth Amendment’s prohibition on

cruel and unusual punishment.

History is the touchstone for both of these constitutional inquiries. And history shows that “[t]he insanity defense, which dates back as far as the 14th century, is an integral . . . part of Anglo-American criminal law.” H.R. Rep. No. 98-577, at 2 (1983). Few if

any principles are more deeply rooted in our legal

history—or in world history—than the idea that “idiots,” “lunatics,” or “madmen” are not criminally responsible. These people lack the “ability and duty of

the normal individual to choose between good and

evil” or between right and wrong, Morissette v. United

States, 342 U.S. 246, 250 (1952), and thus are not fit

for criminal conviction and punishment. Just as

mental “disabilities in areas of reasoning, judgment,

and [impulse] control” can diminish a person’s culpability, Atkins, 536 U.S. at 306, so too can mental illness. As a result, those afflicted with a mental illness

that prevents them from rationally appreciating the

wrongfulness of their conduct have never been

branded as criminals. That was true in the English

common law, at the Founding, and when the Reconstruction Amendments were enacted. The early

American courts, like the English courts before them,

focused on whether the defendant was morally culpable. Infra § I.A.

Current practice confirms the insanity defense’s

fundamental nature. Forty-eight U.S. jurisdictions—

45 states, the federal criminal-justice system, the military justice system, and the District of Columbia—

provide an affirmative insanity defense that encompasses the defendant’s lack of moral culpability. Until 1979, every U.S. jurisdiction had some form of affirmative insanity defense. As Congress recognized

when it adopted the current federal rule, “the insanity defense should not be abolished” because it reflects

“that fundamental basis of Anglo-American criminal

law: the existence of moral culpability as a prerequisite for punishment.” H.R. Rep. No. 98-577, at 3, 7–8

(1983). The Due Process Clause thus protects this

fundamental principle.

Criminally punishing the insane also violates the

Eighth Amendment. That is true both because such

punishment was “condemned by the common law in

1789,” Ford v. Wainwright, 477 U.S. 399, 406 (1986),

and because a modern proportionality analysis confirms history’s judgment: Criminally punishing the

insane is cruel and unusual. None of the four accepted penological justifications—retribution, deterrence,

incapacitation, or rehabilitation, see Graham v. Florida, 560 U.S. 48, 71 (2010)—are served by convicting

and punishing people who are not blameworthy, cannot be deterred, and require incapacitation and rehabilitation that the criminal justice system cannot

provide. Infra § I.B.

Kansas’s decision to “follow[ ] Montana, Idaho, and

Utah to become the fourth state to legislatively abolish the insanity defense,” Jorrick, 4 P.3d at 617, violates these constitutional principles. Infra § II.A.

Kansas’s “mens rea approach” accounts only for in-

tent, not lack of moral culpability. But even severely

mentally ill people can form the intent required to

commit a crime, even if they do not understand that

it is wrong. Thus, in Kansas, so long as a defendant

intentionally kills another human being—even if he

delusionally believes the devil told him to do it, or

that the victim was an enemy soldier trying to kill

him—he is guilty of murder. The upshot is that Kansas criminally punishes people who are, by any definition, insane. The Constitution prohibits that result. Infra § II.B.

The Court could end its inquiry there, and simply

hold that a state may not abolish the insanity defense. It should not be difficult for Kansas to choose

one of the formulations used by the federal government or the other states (or by Kansas itself, for decades). But if Kansas demands further guidance, see

Br. in Opp. 23–24, the Court can easily provide it.

The most common formulation of the insanity defense’s moral-culpability principle is one that focuses

on the defendant’s ability to rationally appreciate

right and wrong with respect to his offense. States

have ample leeway to tweak this baseline standard in

order to better reflect the needs of their citizens.

Likewise, states remain free to allocate and adjust

burdens and impose procedural requirements for the

orderly and fair adjudication of insanity claims. The

only thing they cannot do is what Kansas has done

here: Abolish the defense entirely.

ARGUMENT

I. THE CONSTITUTION REQUIRES AN INSANITY DEFENSE.

Whether the Court applies the Fourteenth

Amendment or the Eighth, and whether it applies a

historical analysis or a modern one, the answer is the

same: The Constitution requires some mechanism to

excuse a defendant who, because of mental disease or

defect, is not morally culpable.

A. The Due Process Clause requires some

mechanism to excuse a non-culpable,

mentally ill defendant.

The Fourteenth Amendment’s Due Process Clause

protects those “principle[s] of justice so rooted in the

traditions and conscience of our people as to be

ranked as fundamental.” Patterson v. New York, 432

U.S. 197, 202 (1977). These principles come from

“the teachings of history” and a “solid recognition of

the basic values that underlie our society.” Moore v.

City of East Cleveland, 431 U.S. 494, 503 (1972) (internal quotations omitted) (plurality op.). The Bill of

Rights and “in particular” the Due Process Clause

were “designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for

efficiency and efficacy” that drives even the most

well-intentioned legislatures. See Stanley v. Illinois,

405 U.S. 645, 656 (1972). Thus, whether they are

framed as “deeply rooted” rights, those “implicit in

the concept of ordered liberty,” or the basic values

that protects our country’s liberty and justice, Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997),

these principles establish a constitutional floor below

which the states may not drop. Duncan v. Louisiana,

391 U.S. 145, 147–48 (1968); see also, e.g., BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 562 (1996) (due process prohibits “grossly excessive” punitive damages);

Rochin v. California, 342 U.S. 165, 171–72 (1952)

(due process prohibits evidence obtained by means

that “shock[] the conscience”).

Although this Court defers to the states in the administration of criminal justice, see Medina v. California, 505 U.S. 437, 445–46 (1992), it has a duty to

“ascertain whether [criminal proceedings] offend

those canons of decency and fairness which express

the notions of justice of English-speaking peoples

even toward those charged with the most heinous offenses,” Rochin, 342 U.S. at 169; see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“there are constitutional limitations on the conduct that a State may criminalize”). Such crimes, “which deeply stir[] popular

sentiment[,] may lead the legislature of a State, in

one of those emotional storms which on occasion

sweep over our people, to enact” laws that

shortchange the rights of criminal defendants. Leland v. Oregon, 343 U.S. 790, 802 (1952) (Frankfurter, J., dissenting). But if our history and traditions

show that the right in question is fundamental, this

Court has not hesitated to protect it against state encroachment. This Court’s “primary guide in determining whether the principle in question is fundamental is, of course, historical practice,” Montana v.

Egelhoff, 518 U.S. 37, 43 (1996) (plurality op.), but

“[t]he fact that a practice is followed by a large number of states . . . is [also] plainly worth considering,”

Leland, 343 U.S. at 798.

The insanity defense meets this demanding test.

Societies have acknowledged insanity as an excuse to

criminal liability for thousands of years. And ever

since the development of criminal law in England,

around the Twelfth Century, the affirmative insanity

defense has been the mechanism that effectuates this

right. Francis Bowes Sayre, Mens Rea, 45 Harv. L.

Rev. 974, 1004–06 (1932). Many state courts have

thus recognized that “legal insanity is a wellestablished and fundamental principle of the law of

the United States” that is “protected by the Due Process Clause[].” Finger v. State, 27 P.3d 66, 84 (Nev.

2001); see also People v. Skinner, 704 P.2d 752, 758–

59 (Cal. 1985); State ex rel. Causey, 363 So. 2d 472,

474 (La. 1978); Ingles v. People, 22 P.2d 1109, 1111

(Colo. 1933), superseded on other grounds, People v.

Hill, 934 P.2d 821, 825 (Colo. 1997); Sinclair v. State,

132 So. 581, 582 (Miss. 1931) (per curiam); State v.

Lange, 123 So. 639, 642 (La. 1929); State v. Strasburg, 110 P. 1020, 1021 (Wash. 1910). These decisions are correct.

1. Ancient civilizations recognized the distinction

between the insane and those capable of understanding the moral implications of their actions. In the

early Jewish tradition, “madness” was an excuse for

otherwise punishable crimes. The first pages of the

Torah introduce “knowledge of good and evil” as a

central reality of the human condition, Genesis 2:9,

2:17, 3:5, 3:22, and at least as early as the Sixth Century B.C.E., the Jewish tradition “distinguished between harmful acts traceable to fault and those that

occur without fault.” Am. Bar Ass’n, Criminal Justice Mental Health Standards 288 n.8 (1989) (“ABA

Standards”) (citing Platt & Diamond, The Origins

and Development of the “Wild Beast” Concept of Mental Illness and Its Relation to Theories of Criminal

Responsibility, 1 J. Hist. Behav. Sci. 355, 366 (1965)).

Such harmful but faultless acts included those committed by persons “incapable of weighing the moral

implications of personal behavior, even when willful.”

Id. In the Talmudic literature, those who “lack understanding”—a category that includes minors, deafmutes, and “madmen” (shoteh)—are held exempt

from criminal punishment. Rael Strous, The Shoteh

and Psychosis in Halakhah with Contemporary Clinical Application, 12 Torah U-Madda J. 158, 167

(2004).

Greek philosophy from at least the Fourth Century

B.C.E. likewise “considered the distinction between a

culpable and non-culpable act to be among the ‘unwritten laws of nature supported by the universal

moral sense of mankind.’” ABA Standards 288 n.8

(quoting B. Jones, The Law and Legal Theory of the

Greeks 264 (1956)). In his dialogue on the Laws, Plato established an exception to guilt for those suffering

from “insanity”: “[S]omeone might perhaps do one of

these things while insane,” or while diseased, or an

infant, or the like, in which case “let him pay to the

full exact compensation for the injury he has done

someone, but let him be released from the other judicial sentences.” Plato, Laws Book IX, at 258 (*864d–

e) (Thomas L. Pangle trans., 1988) (c. 345 B.C.).

Even if the insane person had “killed someone,” the

penalty was one year of exile, rather than execution.

Id. Likewise, the Sixth-Century legal code of the

Byzantine emperor Justinian provided: “There are

those who are not to be held accountable, such as a

madman and a child, who are not capable of wrongful

intention.” See David Carrithers, The Insanity Defense and Presidential Peril, 22 Society at 23 (July–

Aug. 1985).

So too in the Christian tradition. In the Fourth

Century, St. Augustine of Hippo wrote of “individuals

suddenly unbalanced,” who “were found not guilty

because of the fact they had done these things unknowingly and not freely, but by the impulse of some

force, I know not what.” Augustine, Questions Concerning the Old and New Testament, Question 2, cited

by Colin Pickett, Mental Affliction and Church Law

44 (1952). The results in such cases elucidated an

early Christian principle of culpability: “How can a

man be called guilty who does not know what he has

done?” Id. Augustine’s words evoke those of Jesus

himself, praying at the crucifixion: “Father, forgive

them; for they know not what they do.” Luke 23:34.

Daniel Robinson describes St. Augustine as speaking

for the Church Fathers, including St. Ambrose of Milan and St. John Chrysostom of Constantinople, in

defending “the proposition that the insane cannot

justly be punished for their actions.” Daniel N. Robinson, The Insanity Defense as a History of Mental

Disorder, in The Oxford Handbook of Phil. & Psychiatry 18, 22–23 (K.W.M. Fulford et al., eds., 2013).

In Islam, likewise, “lunatics . . . have impaired

judgment and will and so they cannot be held accountable for their actions.” Georgios A. Tzeferakos

& Athanasios I. Douzenis, Islam, Mental Health &

Law: A General Overview, 16 Ann. Gen. Psychiatry

28, 30 (2017). A defendant who “can present some

evidence of [his] insanity prior to the time of the offence—which even if not of a strong nature is sufficient to cast doubt on their responsibility— . . . can be

relieved of liability and punishment based on the

prophetic legal maxim ‘to avoid the prescribed punishments (ḥudūd) whenever possible.’” Bilal Ali &

Hooman Keshavarzi, Forensic Psychiatry, in Oxford

Islamic Studies Online (Oct. 30, 2017).

2. The English common law continued and crystalized these ancient principles. “Legal insanity has

been an established concept in English common law

for centuries.” Finger, 27 P.3d at 80. By 1154, when

Henry II institutionalized the common law in England, inability to distinguish good from evil was already an excuse to criminal liability. Sayre, supra, at

978–80. “During the reign of Edward II (1307–1321),

there was a shift toward recognizing insanity as a

complete defense, which was perfected by the time of

the ascension of Edward III to the throne (1326–

1327).” State v. Searcy, 798 P.2d 914, 928 (Idaho

1990) (McDevitt, J., dissenting) (discussing this history in detail). Thus, the “idea that the insane should

not be punished for otherwise criminal acts has been

firmly entrenched in the law for at least one thousand years.” Jonas Robitscher, In Defense of the Insanity Defense, 31 Emory L.J. 9, 10–11 (1982).

By the Sixteenth Century, insanity was a “well recognized defense[ ].” Sayre, supra, at 1004–05; see

Robitscher, supra, at 11 (“The earliest case in which a

jury rendered a verdict of unsound mind apparently

occurred in 1505. It is clear nonetheless, that, prior

to 1501, prominent jurists considered acquittal to be

the appropriate result” of insanity.). Around that

time, the insanity defense evolved to embrace whether the defendant was capable of distinguishing good

from evil and thus whether he was morally culpable.

See Anthony Platt & Bernard L. Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Development in the

United States: An Historical Survey, 54 Calif. L. Rev.

1227, 1228, 1235 (1966). In 1618, for example, the

English jurist Michael Dalton wrote: “If one that is

‘non compos mentis’ [mad], or an ideot, kill a man,

this is no felony; for they have not knowledge of good

and evill, nor can have a felonius intent, nor a will or

minde to doe harm.” Id. at 1235 (citing Michael Dalton, The Countrey Justice 244 (1630)). William Lambard’s legal reference book, printed between 1581 and

1610, similarly instructed: “If a mad man or a naturall foole, or a lunatike in the time of his lunacie, or a

childe [who] apparently hath no knowledge of good

nor e[v]il do kil[l] a ma[n], this is no felonious acte.”

Searcy, 798 P.2d at 928–29 (McDevitt, J., dissenting)

(quoting John Biggs Jr., The Guilty Mind: Psychiatry

and the Law of Homicide 83 (1955)). The law thus

followed the maxim that “a madman is only punished

by his madness.” 1 Edward Coke, Institutes of the

Laws of England 247a–247b (1853).

By the Eighteenth Century, the “knowledge of good

and evil” test was “regularly used” in insanity cases.

Platt & Diamond, supra, at 1235–36; Sayre, supra, at

1005–06 (explaining that the Eighteenth Century law

“harks back strongly to the old ethical basis of criminal responsibility” by asking whether the defendant

could “distinguish good from evil” and discussing Rex

v. Arnold (1724) 16 St. Tr. 695 (Eng.)).5 Juries in the

Eighteenth Century were instructed to consider, for

example, whether a defendant pleading insanity “was

able to distinguish whether he was doing good or

evil,” could “discern the difference between good and

evil,” or “had enough intelligence to distinguish between right and wrong.” Homer D. Crotty, History of

Insanity as a Defence to Crime in English Criminal

Law, 12 Cal. L. Rev. 105, 114–115 (1924) (describing

Eighteenth and early Nineteen Century cases).

Blackstone aptly summarized this principle:

“[L]unatics or infants . . . are incapable of committing

any crime; unless in such cases where they show a

consciousness of doing wrong.” 4 William Blackstone,

Commentaries *25, *195 (1769). Likewise, English

scholar Williams Hawkins wrote that “it is to be observed that those who are under a natural disability

of distinguishing between good and evil, as infants

5 Rex v. Arnold’s “wild beast” test excused a defendant only if

he was “totally deprived of his understanding and memory.”

This was an outlier in the English treatment of insanity. See

Michael Clemente, A Reassessment of the Common Law Protections for “Idiots,” 124 Yale L.J. 2746, 2270–2771 (2015). The

nearly contemporaneous case of James Hadfield shows this outlier status of the wild beast formulation. Hadfield’s defense—

that he should be exonerated despite plainly “intending” to assassinate the King— “would have fallen on deaf ears if the jurors’ views of insanity had been consistent with the ‘wild beast’

test; fortunately for Hadfield, they were not.” Norman J. Finkel,

Insanity on Trial 16 (1988).

under the age of discretion, ideots and lunaticks, are

not punishable by any criminal prosecution whatsoever.” Crotty, supra, at 113 (citing W. Hawkins,

Pleas of the Crown, I, p.1 (1716)).

These fundamental beliefs about insanity and culpability continued into the Nineteenth Century,

though now with additional labels formalizing the affirmative defense that had been percolating in English law for hundreds of years. Courts during this

time often chose the terms “right and wrong” in place

of “good and evil.” See M’Naghten’s Case (1843) 8

Eng. Rep. 718. Yet “the phrases ‘good and evil’ and

‘right and wrong’” continued to be “used interchangeably and synonymously” during the early Nineteenth

Century, both in England and in the United States.

Platt & Diamond, supra, at 1237 n.59 (describing a

California jury instruction from 1871: “A person

sometimes insane, who has lucid intervals, or is so far

sane as to distinguish good from evil, right from

wrong, may commit a crime and be legally held responsible.”). Both formulations, however, address the

essential question: Whether the defendant is morally

blameworthy and thus criminally responsible for the

act in question.

M’Naghten’s Case likewise solidified the principle

that an insane defendant is excused from criminal

liability and must be acquitted. Sayre, supra, at

1006. Daniel M’Naghten suffered from paranoid delusions that the Tories followed and persecuted him,

compelling him to attempt to assassinate Prime Minister Robert Peel in 1843; he was acquitted based on

an insanity defense at his trial. The judges laid down

this rule: “To establish a defence on the ground of insanity it must be clearly proved, that, at the time of

committing the act, the party accused was laboring

under such a defect of reason, from disease of the

mind, as not to know the nature and quality of the

act he was doing; or if he did know it, that he did not

know he was doing what was wrong.” 8 Eng. Rep.

718, 722. Justice Story considered M’Naghten’s rule

“entirely satisfactory and correct,” writing that “the

direction of the Court, advising to an acquittal, [cannot] be for a moment deemed exceptionable, since, if a

verdict of guilty had been pronounced, the duty of the

Court upon the evidence would be plain, to direct a

new trial.” II Life and Letters of Joseph Story 441

(William W. Story ed., Houghton & Wood 1851). Far

from being a “creature of the 19th century,” as the

Kansas Supreme Court believed, Bethel, 66 P.3d at

851, the insanity defense—and the underlying principle of moral culpability—have existed for centuries.

3. Our law has also recognized the insanity defense

from the Founding to the present. “In the United

States, the early tendency was to follow the law as

laid down by the English cases.” Crotty, supra, at

121. There was thus little departure from the English approach outlined above, and early American

courts held that (in Justice Story’s words) “insanity is

an excuse for the commission of every crime, because

the party has not the possession of that reason, which

includes responsibility.” United States v. Drew, 25

F. Cas. 913, 913 (C.C.D. Mass. 1828); see also United

States v. Lawrence, 26 F. Cas. 887, 891 (C.C.D.D.C.

1835) (government acknowledging Hadfield’s Case as

correctly stating the law of insanity and noting that

the jury returned a verdict of not guilty by reason of

insanity within five minutes); In re McElroy, 1843

WL 5177, at *4 (Pa. Sept. 1, 1843) (“When a man is

charged with a crime, and labours under total insanity, he is so clearly an irresponsible being, that the

law does not consider him a fit subject for punishment, and he must be acquitted.”). Timothy Cun-

ningham’s 1771 legal dictionary, which Justice Scalia

recommended,6 recorded the “general rule, that ideots

and lunaticks, being by reason of their natural disabilities incapable of judging between good and evil,

are punishable by no criminal prosecution whatsoever.” Clemente, supra, at 2788 (quoting Timothy Cunningham, A New And Complete Law-Dictionary, Or

General Abridgment Of The Law, On A More Extensive Plan Than Any Law-Dictionary Hitherto Published, 2 vols. (2d ed. 1771; 3d ed. 1783)). These authorities reflect the early American view that “[t]o

punish an insane man, would be to rebuke Providence.” Roberts v. State, 3 Ga. 310, 328 (Ga. 1847).

As in England, American courts focused on whether

the defendant lacked, “as to the act about to be committed, reason enough to distinguish between the

right and wrong of that act—if he does not know and

understand that that act is wrong, and that he will

deserve punishment for committing it, he is irresponsible.” Roberts, 3 Ga. at 330; see also State v. Spencer, 21 N.J.L. 196, 202 (N.J. O. & T. 1846) (asking

whether the defendant is “capable of moral action

and of discerning between right and wrong”); People

v. Kleim, 1845 WL 4476 (N.Y. Sup. Ct. Jan. 1, 1845)

(“The inquiry to be made under the rule of law as now

established, was as to the prisoner’s knowledge of

right and wrong at the time of committing the offense.”); Commonwealth v. Rogers, 48 Mass. 500,

501–02 (Mass. 1844) (“A man is not to be excused

from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and

wrong, as to the particular act he is then doing; a

knowledge and consciousness that the act he is doing

6 See Antonin Scalia & Bryan A. Garner, A Note on the Use of

Dictionaries, 16 Green Bag 2D 419, 424 (2013).

is wrong and criminal, and will subject him to punishment.”); State v. Marler, 2 Ala. 43, 48 (1841) (an

insanity plea requires “that the prisoner was incapable of judging between right and wrong”). This remained true after M’Naghten, which became the rule

of insanity in many U.S. jurisdictions. See, e.g., Davis v. United States, 160 U.S. 469, 479–80, 484–85

(1895) (discussing M’Naghten’s “deliberate and careful statement of the doctrine” and reiterating the

“humane” common-law principle that a person cannot

be guilty of murder “unless at the time he had sufficient mind to comprehend the criminality or the right

and wrong of such an act”); Mackin v. State, 36 A.

1040, 1041 (N.J. 1897) (describing the “rule established by M’Naghten’s Case” as “completely imbedded

in the administration of the criminal law”).

These cases reflect the “universal and persistent . . .

belief in freedom of the human will and a consequent

ability and duty of the normal individual to choose

between good and evil.” Morissette v. United States,

342 U.S. 246, 250 (1952). “Historically, our substantive criminal law is based upon a theory of punishing

the vicious will. It postulates a free agent confronted

with a choice between doing right and doing wrong

and choosing freely to do wrong.” Id. at 250 n.4.

Thus, in Morissette, Justice Jackson cited “the ancient requirement of a culpable state of mind” to explain that mere intention—as opposed to an “evilmeaning mind”—is typically insufficient for criminal

punishment. Id. at 250–51.

These principles remain a bedrock part of our legal

system today. Forty-five states, the federal government, the U.S. military, and the District of Columbia

all provide an affirmative insanity defense that reflects the defendant’s lack of moral culpability. As set

forth in the addendum to this brief, eighteen states

and the federal civilian and military justice systems

use some version of the M’Naghten test. Add. 13–23.

Thirteen states and the District of Columbia use a

version of the Model Penal Code standard, which similarly provides that “a person is not responsible for

criminal conduct if at the time of such conduct as a

result of mental disease or defect he lacks substantial

capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to

the requirements of law.” Model Penal Code § 4.01

(Am. Law Inst. 1985) (brackets in original); see Add.

6–13. Twelve states focus directly on the defendant’s

moral incapacity—his inability to tell if his conduct is

“wrong,” e.g., Ariz. Rev. Stat. § 13-502, or “criminal[ ],” e.g., 720 Ill. Comp. Stat. 5/6–2; see Add. 1–6.

And New Hampshire and North Dakota use unique

formulations that capture the same essential concepts.7 Add. 23–24. Only Alaska provides an affirmative insanity defense that does not encompass lack

of blameworthiness, focusing solely on cognitive incapacity, i.e., whether the defendant could “appreciate

the nature and quality of [the] conduct.” Alaska Stat.

§ 12.47.010; Add. 24.

7 New Hampshire asks whether the defendant’s crime was a

“product of,” or caused by, his illness. State v. Cegelis, 638 A.2d

783, 785 (N.H. 1994). This test encompasses “whether the defendant knew the difference between right and wrong.” Id. at

786 (approving this instruction). North Dakota asks whether

the defendant “lacks substantial capacity to comprehend the

harmful nature or consequences of the conduct, or the conduct is

the result of a loss or serious distortion of [his] capacity to recognize reality.” N.D. Cent. Code 12.1-04.1-01(1)(a). These two

prongs appear to capture roughly the same concepts as the

M’Naghten prongs, but in the reverse order. See State v. Dahl,

783 N.W.2d 41, 48 (N.D. 2010); cf. State v. Jensen, 251 N.W.2d

182, 186 (N.D. 1977) (noting that North Dakota’s two prior articulations of this test were “based upon the M’Naghten rule”).

In fact, every American jurisdiction had an affirmative insanity defense until 1979. State v. Korell, 690

P.2d 992, 996 (Mont. 1984); cf. Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (“sometimes ‘the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent’”). True, states adopted different formulations of

the basic concept, but the practice of allowing (or requiring) the defendant to prove his insanity was universal. No state even tried to abolish the defense until 1910, and those early efforts were promptly held

unconstitutional. Sinclair, 132 So. at 582; Lange, 123

So. at 642; Strasburg, 110 P. at 1021.

“Ever since our ancestral common law emerged out

of the darkness of its early barbaric days, it has been

a postulate of Western civilization that the taking of

life by the hand of an insane person is not murder.”

United States ex rel. Smith v. Baldi, 344 U.S. 561,

570 (1953) (Frankfurter, J., dissenting). The insanity

defense thus “reflects a fundamental legal principle

common to the jurisprudence of this country and to

the common law of England.” Skinner, 704 P.2d at

758. And almost every U.S. jurisdiction continues to

recognize the defense today as it always existed. Notably, in adopting the current federal defense, which

likewise preserves the historic culpability principle,

Congress recognized that “the insanity defense

should not be abolished” because it reflects “that fundamental basis of Anglo-American criminal law: the

existence of moral culpability as a prerequisite for

punishment.” H.R. Rep. No. 98-577, at 3, 7–8 (1983).

“So closely has the idea of insanity as a defense to

crime been woven into the criminal jurisprudence of

English speaking countries that it has become a part

of the fundamental laws thereof, to the extent that a

statute which attempts to deprive a defendant of the

right to plead it will be unconstitutional and void.”

Sinclair, 132 So. at 584 (Ethridge, J.).

B. The Eighth Amendment prohibits criminally punishing the insane.

Whether viewed through the Founding-era lens or

the modern proportionality lens, the Eighth Amendment prohibits a State from punishing a criminal defendant without regard to his ability—as a result of

mental illness—to rationally appreciate that his actions are wrong. “[T]here could be no greater cruelty

than trying, convicting, and punishing a person wholly unable to understand the nature and consequence

of his act, and . . . such punishment is certainly both

cruel and unusual in the constitutional sense.” Sinclair, 132 So. at 585 (Ethridge, J.).

Although this Court’s Eighth Amendment jurisprudence focuses on punishment, the Court has also applied it to prohibit criminal convictions in certain

cases, for reasons that apply fully here. See, e.g.,

Robinson v. California, 370 U.S. 660, 667 (1962)

(holding that conviction for the status of being a drug

addict is unconstitutional under the Eighth Amendment); id. at 674 (Douglas, J., concurring) (“I do not

see how under our system being an addict can be

punished as a crime. If addicts can be punished for

their addiction, then the insane can also be punished

for their insanity.”); see also Parker v. Ellis, 362 U.S.

574, 593–94 (1960) (per curiam) (“Conviction of a felony imposes a status upon a person which not only

makes him vulnerable to future sanctions through

new civil disability statutes, but which also seriously

affects his reputation and economic opportunities.”).

The “status and condition in the eyes of the world,

and under the law, of one convicted of crime, is vastly

different from that of one simply adjudged insane,”

Strasburg, 110 P. at 1025, and thus an insane person

should not “be branded with the stigma of felony

when he was wholly unable to comprehend the nature and quality of the act,” Sinclair, 132 So. at 583.

1. Criminally punishing the insane

would have been cruel and unusual

at the Founding.

The Eighth Amendment bans, at a minimum,

“those practices condemned by the common law in

1789.” Ford v. Wainwright, 477 U.S. 399, 406 (1986).

It also reaches punitive practices that, although formally legal at the founding, “qualified as ‘cruel and

unusual,’ as a reader at the time of the Eighth

Amendment’s adoption would have understood those

words.” Bucklew v. Precythe, 139 S. Ct. 1112, 1123

(2019).

As detailed above, the Founding-era common law

did not allow criminally punishing the insane. “It

was well settled at common law that ‘idiots,’ together

with ‘lunatics,’ were not subject to punishment for

criminal acts committed under those incapacities.”

See Penry v. Lynaugh, 492 U.S. 302, 331 (1989),

abrograted on other grounds by Atkins, 536 U.S. 68;

Sinclair, 132 So. at 583 (Ethridge, J.) (“The common

law proceeds upon an idea that before there can be a

crime there must be an intelligence capable of comprehending the act prohibited, and the probable consequence of the act, and that the act is wrong.”); see

supra pp. 20–26. That alone is a basis to find that

the Eighth Amendment requires an insanity defense.

Likewise, the Founding generation would have considered it both cruel and unusual to criminally punish the insane. It surely would have been unusual:

both England and the Colonies universally recognized

the insanity defense. Supra pp. 20–26. In fact, the

Founding generation believed that the insane should

not be subjected to legal process at all. More often

than not, “idiocy was addressed on a local level by the

idiot’s family and community,” and so “idiots and lunatics were particularly unlikely to receive formal

trials.” Clemente, supra, at 2781, 2784.

For the same reasons, punishing the insane would

have been deemed “cruel,” in the sense of “[p]leased

with hurting others; inhuman; hard-hearted; void of

pity; wanting compassion; savage; barbarous; unrelenting.” Bucklew, 139 S. Ct. at 1123 (quoting 1 S.

Johnson, A Dictionary of the English Language (4th

ed. 1773)). “English common law considered it ‘cruel’

to execute idiots, lunatics, and the insane.” Clemente, supra, at 2756. Such punishment was “savage

and inhuman,” a “miserable spectacle,” and “of extreme inhumanity and cruelty.” Id. at 2756–57. This

attitude “carried over to the colonies,” which adopted

“English common law and custom” on this subject.

Id. at 2757–58. Again, that is reason enough to find

that abolishing the insanity defense violates the

Eighth Amendment.

2. Criminally punishing the insane is

grossly disproportionate and serves

no legitimate purpose.

This Court’s categorical-proportionality analysis

warrants the same conclusion. Proportionality is central to the Eighth Amendment, which embodies the

“precept of justice that punishment for crime should

be graduated and proportioned to [the] offense.”

Graham v. Florida, 560 U.S. 48, 59 (2010).

Under this standard, this Court looks first to “objective indicia of society’s standards, as expressed in

legislative enactments and state practice,” id. at 61,

which are “the ‘clearest and most reliable objective

evidence of contemporary values.’” Atkins, 536 U.S. at

312. Americans today, speaking through their legislatures, overwhelmingly agree with the Ancients and

the Founders: An insane person is not criminally

culpable. As already explained, 48 U.S. jurisdictions

have some form of an affirmative insanity defense

that encompasses (at least) lack of moral culpability.

Supra pp. 26–27; see Add. 1–24. This principle thus

reflects a rare convergence of longstanding moral and

religious principles with modern ethical and medical

judgments.

The Court also gauges proportionality using its own

independent judgment, looking to “the standards

elaborated by controlling precedents and by the

Court’s own understanding and interpretation of the

Eighth Amendment’s text, history, meaning, and

purpose.” Graham, 560 U.S. at 61; see also Roper v.

Simmons, 543 U.S. 551, 564 (2005). As just explained, the Amendment’s text and history support

the modern consensus. Supra § I.B.1.

Likewise, the “culpability of the offenders at issue,”

“the severity of the punishment in question,” and

“whether the challenged sentencing practice serves

legitimate penological goals,” Graham, 560 U.S. at

67, all weigh against criminally punishing the insane.

A person who cannot rationally appreciate the consequences of his conduct is, by definition, not culpable.

Cf. Atkins, 536 U.S. at 319 (noting “the lesser culpability of the mentally retarded”). And though the severity of the punishment in question varies with the

crime, any punishment of a blameless offender is by

definition severe.

Finally, none of the four accepted penological justifications for punishing criminal conduct—retribution,

deterrence, incapacitation, or rehabilitation, see Graham, 560 U.S. at 71—are served by criminally pun-

ishing people who cannot rationally appreciate the

difference between right and wrong.

First, no retributive value accrues by punishing a

person who cannot appreciate that his conduct is

wrong. “The heart of the retribution rationale is that

a criminal sentence must be directly related to the

personal culpability of the criminal offender.” Tison

v. Arizona, 481 U.S. 137, 149 (1987). Culpability, in

turn, is a moral question that presupposes a rational

agent with the capacity to assess his conduct in light

of moral and legal authority. See Ford, 477 U.S. at

408 (describing “retribution” as “the need to offset a

criminal act by a punishment of equivalent ‘moral

quality’”). “[L]egally responsible or legally competent

agents are people who have the general capacity to

grasp and be guided by good reason . . . [and] who are

generally capable of properly using the rules as premises in practical reasoning.” Stephen J. Morse, Moral

and Legal Responsibility and the New Neuroscience,

in Neuroethics: Defining the issues in theory, practice, and policy, 37–38 (Judy Illes ed., 2004). Where a

person’s mental state “is so distorted by a mental illness that his awareness of the crime and punishment

has little or no relation to the understanding of those

concepts shared by the community as a whole,” the

moral culpability that retribution is supposed to mirror cannot exist. See Panetti v. Quarterman, 551 U.S.

930, 959 (2007); cf. Ford, 477 U.S. at 409 (“[W]e may

seriously question the retributive value of executing a

person who has no comprehension of why he has been

singled out and stripped of his fundamental right to

life.”).

Second, deterrence is not served by punishing the

insane because it neither deters the defendant himself nor “provides [an] example to others.” See Ford

477 U.S. at 407. A “deranged person . . . is plainly

beyond the deterrent influence of the law.” Model

Penal Code § 4.01 cmt. at 166 (Am. Law Inst. 1985).

“[T]he same cognitive and behavioral impairments

that make these defendants less morally culpable . . .

also make it less likely that they can . . . control their

conduct based upon” the threat of criminal penalties.

See Atkins, 536 U.S. at 320. Likewise, punishing the

insane will not meaningfully deter sane people from

committing the same offenses. “It is unlikely that the

sane person (or even the insane person who believes

himself to be sane) will identify with the insane defendant, and thus the insane cannot be effectively

used as a deterrent example to others.” Wayne R.

LaFave, 1 Substantive Crim. L. § 7.1(c)(4) (3d ed.

2018).

Third, criminal punishment—whether incarceration or execution—is a poor tool for incapacitating the

insane. This is so because neither has any necessary

relationship to the duration of a person’s mental illness and resulting dangerousness. Thus, in some

situations the criminal sanction does too little: While

incarceration may incapacitate an insane person for a

specified term of years, he may remain unwell, and

potentially dangerous, after his sentence ends. In

other situations, the punishment does far too much.

A long-term or permanent sentence is justified on incapacitation grounds only if the defendant will remain dangerous indefinitely, a notion at odds with

the reality that mental illnesses are often treatable.

This Court remarked in Graham that “‘incorrigibility

is inconsistent with youth.’” 560 U.S. 48 at 73. It is

no more consistent with treatable illness.

Fourth, prisons are not equipped to rehabilitate

people suffering from severe mental disorders. Those

studying the effects of the de facto transformation of

prisons into providers of mental health services are

virtually united in the conclusion that “across the nation, many prison mental health services are woefully

deficient, crippled by understaffing, insufficient facilities, and limited programs.” Human Rights Watch,

Ill-equipped: U.S. Prisons and Offenders with Mental

Illness 1–5 (2003), https://goo.gl/wDAsmW. Efforts to

improve mental health services in prisons “face considerable challenges, given the magnitude of the

problem in relation to scant resources, the intractability of many prison environments, and the inherent

difficulties of delivering effective mental health services within an environment in which security is a

constant concern.” Edward P. Mulvey & Carol A.

Schubert, Mentally Ill Individuals in Jails and Prisons, 46 Crime and Justice 231, 249 (2017); see also

Jennifer Bronson & Marcus Berzofsky, Bureau of

Justice Statistics, Dep’t of Justice, Indicators of Mental Health Problems Reported by Prisoners and Jail

Inmates, 2011-2012 8–9 (2017) (noting that only “[a]n

estimated 36% of prisoners and 30% [of] jail inmates

who met the threshold for [serious psychological distress] said they were receiving treatment for a mental

health problem”).

These problems often manifest themselves in a cycle of punishment for the mentally ill. See id. at 9

(“[p]risoners and jail inmates who met the threshold

for [serious psychological distress] were more likely

than those without [serious psychological distress] to

be written up or charged with an assault while incarcerated”). This cycle exacerbates the inmate’s illness,

particularly where solitary confinement is imposed—

as it is for all capital defendants in Kansas. Kan.

Dep’t of Corr., Purpose of Administrative Segregation

& Appropriate Placements, § 20-104(I)(B)(16); see also

Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Chal-

lenge for Medical Ethics, 38 J. Am. Acad. Psychiatry

L. 104, 104–05 (2010) (noting that “[t]he adverse effects of solitary confinement are especially significant

for persons with serious mental illness,” that “[t]he

stress, lack of meaningful social contact, and unstructured days can exacerbate symptoms of illness or

provoke recurrence,” and that “[m]any simply will not

get better as long as they are isolated”).

By contrast, these penological purposes are wellserved by the approach used in nearly every U.S. jurisdiction. These states civilly commit an insane defendant to a mental institution “until such time as

[the defendant] has regained his sanity or is no longer a danger to himself or society.” Jones v. United

States, 463 U.S. 354, 370 (1983). This approach safeguards the public and ensures that the period of

commitment is proportional to the defendant’s needs.

C. Either of these constitutional bases prohibits the abolition of the affirmative insanity defense.

In order to resolve this case, this Court need do no

more than hold that the Constitution does not permit

a state to abolish the mechanism that permits a defendant to show that he is not culpable as a result of

his insanity. With blameworthiness as the touchstone, states retain ample leeway to experiment with

the formulation of the insanity defense that works

best for their citizens and the juries that ultimately

must decide whether to hold a defendant accountable

for his acts. See Clark v. Arizona, 548 U.S. 735, 752

(2006) (“[T]he insanity rule, like the conceptualization of criminal offenses, is substantially open to

state choice.”).

In fact, states have encountered little difficulty in

doing so. The most common formulation has been

one that asks if the defendant can “appreciate . . . the

wrongfulness of his acts.” E.g., 18 U.S.C. § 17. Almost every U.S. jurisdiction uses some version of this

standard, often in conjunction with other, alternative

tests (such as whether the defendant could conform

his conduct to the law or could understand the nature

of his actions). See Add. 1–24. States can surely offer more protection if they see fit, but they may not

disregard the basic notion of moral culpability. They

must provide some mechanism, using some standard,

that encompasses the bedrock principle that a person

whose mental state renders them blameless cannot

be held criminally accountable.

For example, states can add or subtract a volitional

component, as many have done, including those that

apply the Model Penal Code test. Compare, e.g., 11

Del. Code § 401 (focusing solely on the defendant’s

“substantial capacity to appreciate the wrongfulness

of [his] conduct”), with Or. Rev. Stat. § 161.295 (asking whether the defendant could “appreciate the

criminality of the conduct or . . . conform the conduct

to the requirements of law”). States can also add or

subtract a cognitive-incapacity inquiry that asks, like

M’Naghten’s first prong, whether the defendant could

“appreciate the nature and quality . . . of his or her

conduct.” E.g., Mich. Comp. Laws 768.21a(1). Because “cognitive incapacity is itself enough to demonstrate moral incapacity,” it “is a sufficient condition

for establishing a defense of insanity, albeit not a

necessary one.” Clark, 548 U.S. at 753.

States are also free to adjust different components

of the defense’s basic formula. States using a version

of the “appreciate the wrongfulness” formulation, for

example, remain free to decide what kind of wrongfulness is relevant. A defendant might be unable to

understand that his actions are legally wrong, or sub-

jectively wrong, or morally wrong, or wrong in the

eyes of society. See Walter Sinnott-Armstrong & Ken

Levy, Insanity Defenses, in The Oxford Handbook of

Philosophy of Criminal Law 302–303 (John Deigh &

David Dolinko eds., 2011); compare S.C. Code Ann.

§ 17-24-10(A) (asking whether the defendant could

“distinguish moral or legal right from moral or legal

wrong”), with Ky. Rev. Stat. Ann. § 504.020 (asking

whether the defendant “lacks substantial capacity . . .

to appreciate the criminality of his conduct”). And

states can and do institute procedural mechanisms to

ensure that the individual seeking the defense is

qualified to raise it. Cf. Ake v. Oklahoma, 470 U.S.

68, 82–83 (1985) (if the defendant can “make an ex

parte threshold showing to the trial court that his

sanity is likely to be a significant factor in his defense,” then the due process right of access to a competent psychiatrist is triggered).

States can also allocate burdens as they see fit.

Many states put the burden of proof on the defendant, consistent with the historical and common-sense

view that “most men are sane.” Leland, 343 U.S. at

796. But some states provide that “once any evidence

of insanity is introduced, the people have the burden

of proving sanity.” E.g., Colo. Rev. Stat. § 16-8-105.5.

States can also vary the burden itself. Many states

and the federal government require the defendant to

show insanity by clear and convincing evidence. E.g.,

18 U.S.C. § 17(b); Ala. Code § 13A-3-1. Others require only a preponderance. E.g., Iowa Code § 701.4.

And if they so choose, states can require the defendant to prove his insanity beyond a reasonable doubt.

See Clark, 548 U.S. at 769 (a state “may place the

burden of persuasion on a defendant to prove insanity . . . whether by a preponderance of the evidence or

to some more convincing degree”); Leland, 343 U.S. at

798. On the other hand, when the prosecution has

the burden, it generally must carry it beyond a reasonable doubt. E.g., Commonwealth v. McLaughlin,

729 N.E.2d 252, 255 (Mass. 2000).

All of these approaches are permissible. The Constitution merely prohibits a state from abolishing the

insanity defense entirely, thus preventing the jury

from considering the defendant’s blameworthiness at

all.

II. KANSAS’S OUTLIER SCHEME VIOLATES

THE CONSTITUTION BY ABOLISHING

THE INSANITY DEFENSE.

Kansas’s “mens rea approach” violates the Constitution. Kansas has abolished the insanity defense

outright, and its substitute procedure does not vindicate the constitutional principles discussed above.

A. Kansas has abolished the insanity defense.

Kansas has “legislatively abolish[ed] the insanity

defense.” State v. Jorrick, 4 P.3d 610, 617 (Kan.

2000). “Mental disease or defect” “is a defense to a

prosecution under any statute” only if it negates “the

mental state require[ment] as an element of the offense charged.” Kan. Stat. Ann. § 22-3220 (2009). It

is “not otherwise a defense.” Id. In Kansas, then, insanity as the law has always understood it—“lack of

ability to know right from wrong,” J.A. 243—has

“disappear[ed] as a separate defense.” Jorrick, 4 P.3d

at 618 (emphasis omitted).

The constitutional principles discussed above require an insanity defense that protects defendants

who lack moral culpability because of mental disease

or defect. That has been the core of the defense since

well before the Founding, and in almost every state,

it still is. See supra pp. 20–28. By outright “abolish[ing] the insanity defense,” Jorrick, 4 P.3d at 617,

Kansas has violated the Eighth and Fourteenth

Amendments.

B. Kansas’s scheme is unconstitutional because it ignores an insane defendant’s

lack of moral culpability.

Kansas claims that its mens rea approach merely

“refined the State’s insanity defense by channeling

evidence of mental disease or defect into the mens rea

element of a crime.” Br. in Opp. i; see id. at 9. But

that approach is neither substantively nor procedurally equivalent to the affirmative insanity defense.

In Kansas, a defendant’s mental state is relevant

only to whether he could form the intent required to

satisfy the offense’s elements. Kan. Stat. Ann. § 223220 (2009). But while “the circumstances which

give rise to a defense of insanity sometimes also warrant the conclusion that the defendant did not commit the acts with the mental state required for conviction of the crime charged . . . this is not always the

case, for ‘the insanity defense is broader than the

mens rea concept.’” LaFave, supra, § 7.1(b); see also

State v. Curry, 543 N.E.2d 1228, 1230 (Ohio 1989)

(“criminal intent or lack thereof is not the focus of the

insanity question,” which “is and always has been

broader”); accord State v. Olmstead, 800 P.2d 277,

282 (Or. 1990). Thus, “the existence or nonexistence

of legal insanity bears no necessary relationship to

the existence or nonexistence of the required mental

elements of the crime.” Clark, 548 U.S. at 796 (Kennedy, J., dissenting); accord Foucha, 504 U.S. at 91–

92 (Kennedy, J., dissenting); Mullaney v. Wilbur, 421

U.S. 684, 706 (1975) (Rehnquist, J., concurring). Yet

Kansas’s approach conflates these distinct concepts.

The practical effects are significant. This Court has

observed that “the cognitively incapacitated”—those

who do not know what they are doing, and so may be

unable to form intent—“are a subset of the morally

incapacitated.” Clark, 548 U.S. at 754. And Kansas’s

mens rea approach protects only this smaller subset,

not the larger category of morally incapacitated defendants. The effect is to shrink the class of defendants who might be acquitted as a result of mental

disease or defect almost to the vanishing point. “Only

in the rare case . . . will even a legally insane defendant actually lack the requisite mens rea purely because of mental defect.” United States v. Pohlot, 827

F.2d 889, 900 (3d Cir. 1987); accord H.R. Rep. No. 98577 at 15 n.23 (1983); see Daniel J. Nusbaum, The

Craziest Reform of Them All: A Critical Analysis of

the Constitutional Implications of Abolishing the Insanity Defense, 87 Cornell L. Rev. 1509, 1522 & n.45

(2002) (explaining that “even the most debilitating

mental illness rarely negates the appropriate mental

state”).

The upshot is that, in many situations where an affirmative insanity defense would “excuse a defendant

from customary criminal responsibility,” Clark, 548

U.S. at 768, Kansas’s mens rea approach will not. A

“man who commits murder because he feels compelled by demons,” Pohlot, 827 F.2d at 900, or a defendant who believes that “a wolf . . . has ordered him

to kill the victim,” Delling v. Idaho, 133 S. Ct. 504,

505 (2012) (Breyer, J., dissenting from denial of certiorari), are both capable of forming the intent required

to commit homicide—and thus are not cognitively incapacitated—yet lack the “ability . . . of the normal

individual to choose between good and evil.” Morissette, 342 U.S. at 250. In Kansas, that is irrelevant:

These defendants would be guilty. See Rosen, supra,

at 261–62 (collecting examples of defendants acquitted under the traditional defense who would be guilty

in Kansas).

In short, the same evidence that would lead to an

acquittal in almost every other state will lead to a

conviction in Kansas. To be sure, that evidence may

still be relevant at sentencing. See Br. in Opp. 23–24.

But a reduced punishment is a far cry from an acquittal, which avoids the many serious consequences

that attend a criminal conviction “apart from the [resulting] sentence.” See Ball v. United States, 470

U.S. 856, 865 (1985); Henry M. Hart, Jr., The Aims of

the Criminal Law, 23 Law & Contemp. Probs. 401,

404–405 (1958). The mens rea approach is thus “a

jarring reversal of hundreds of years of moral and legal history.” ABA Standards 301.

The Kansas Supreme Court’s attempts to defend

the mens rea approach do not withstand scrutiny.

The decision below relied heavily on Bethel, which rejected due process and Eighth Amendment challenges

to Kansas’s abolition of the insanity defense. 66 P.3d

at 851–52. But Bethel wrongly believed that the “affirmative insanity defense is a creature of the 19th

century and is not so ingrained in our legal system to

constitute a fundamental principle of law.” Id. at

851; J.A. 243–44. In fact, as shown above, “the law

has long recognized that criminal punishment is not

appropriate for those who, by reason of insanity, cannot tell right from wrong.” Delling, 133 S. Ct. at 504

(Breyer, J., dissenting); supra pp. 20–26.

Bethel was also wrong, for the reasons just explained, to say that “the Kansas Legislature has not

abolished the insanity defense but rather redefined

it.” 66 P.3d at 851. That contention is both inconsistent with the principles discussed above and with

the Kansas Supreme Court’s own repeated recogni-

tion that Kansas has “legislatively abolish[ed] the insanity defense.” Jorrick, 4 P.3d at 617. The mens rea

approach prevents a broad swath of mentally ill individuals from presenting a complete defense even if

they cannot tell right from wrong.

Finally, Bethel’s Eighth Amendment analysis began

and ended with whether “punishing a person who

committed an offense as a result of mental disease is

tantamount to punishing the person because he has a

mental disease,” and is thus proscribed by Robinson, 370 U.S. 660. Bethel, 66 P.3d at 852. The court’s

answer was no, because Kansas law “does not expressly or effectively make mental disease a criminal

offense.” Id. Bethel did not consider either the historical or the proportionality analyses discussed

above. See supra § I.B.

Nor do this Court’s precedents permit replacing the

historical insanity defense with a mens rea approach.

In Clark, this Court clarified that it has never determined whether Constitution mandates an insanity

defense. 548 U.S. at 752 n.20. And the Arizona

scheme the court considered in Clark preserved “the

requirement that the accused know his act was

wrong,” and thus did not “change the meaning of the

insanity standard.” Id. at 754, 755 n.24. Kansas’s

scheme does not preserve that requirement, and thus

works the fundamental change that was absent in

Clark. For that reason, Kansas’s mens rea approach

is different from any scheme this Court has considered. And, for all the reasons set forth above, it is

unconstitutional.

CONCLUSION

The Court should reverse the decision below and

remand for a new trial.

Respectfully submitted,

JEFFREY T. GREEN

TOBIAS S. LOSS-EATON

CHIKE B. CROSLIN

GABRIEL SCHONFELD

LUCAS CROSLOW

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

SARAH O’ROURKE SCHRUP*

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

s-schrup@law.northwestern.edu

NAOMI IGRA

SIDLEY AUSTIN LLP

555 California Street

Suite 2000

San Francisco, CA 94104

(415) 772-7495

MERYL CARVER-ALLMOND

CLAYTON J. PERKINS

CAPITAL APPELLATE

DEFENDER OFFICE

700 S.W. Jackson Street

Suite 903

Topeka, KS 66603

(785) 291-3207

Counsel for Petitioner

May 31, 2019

* Counsel of Record

ADDENDUM

FEDERAL AND STATE INSANITY-DEFENSE

LAWS

Contents

Moral incapacity jurisdictions

Add. 1–6

Model Penal Code jurisdictions

Add. 6–13

M’Naghten jurisdictions

Add. 13–23

Unique-test jurisdictions

Add. 23–24

Cognitive incapacity jurisdictions

Add. 24

Abolition jurisdictions

Add. 24–25