Amicus Curiae Brief — James K. Kahler, Petitioner v. Kansas

Supreme Court briefJun 7, 2019

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No. 18-6135

IN THE

Supreme Court of the United States

JAMES K. KAHLER,

Petitioner,

KANSAS,

Respondent.

_____________________________

On Writ of Certiorari to the

Kansas Supreme Court

_____________________________

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

BARBARA E. BERGMAN

JONATHAN L. MARCUS

Co-Chair, Amicus

Counsel of Record

Curiae Committee

BRENDAN B. GANTS

NATIONAL ASSOCIATION OF

DANIEL B. O’CONNELL

CRIMINAL DEFENSE LAWYERS JEONGU GIM

1201 East Speedway Blvd.

1440 New York Ave, NW

Tucson, AZ 85721

Washington, DC 20005

(202) 371-7000

Jonathan.Marcus@skadden.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

STATEMENT OF INTEREST OF AMICUS

CURIAE ........................................................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 4

II.

PRINCIPLED RATIONALES FOR

PUNISHMENT DO NOT JUSTIFY

CRIMINAL RESPONSIBILITY FOR

INDIVIDUALS WHO LACK MORAL

CULPABILITY ................................................ 4

None of the Purposes of Punishment

Embraced by American Criminal Law

Justifies Punishing People Who Lack

Moral Capacity ..................................... 4

The Insanity Defense Historically

Has Protected from Criminal

Punishment Individuals Who Lack

Moral Culpability.................................. 6

ABOLISHING THE INSANITY DEFENSE,

AS KANSAS HAS DONE, ALLOWS

PEOPLE WHO LACK MORAL

CULPABILITY TO BE IMPRISONED AND

EXECUTED ..................................................... 9

CONCLUSION ......................................................... 25

TABLE OF AUTHORITIES

Page(s)

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................ 5

Clark v. Arizona,

548 U.S. 735 (2006) ................................................ 8

Ford v. Wainwright,

477 U.S. 399 (1986) ................................................ 5

Graham v. Florida,

560 U.S. 48 (2010) .................................................. 6

Jones v. United States,

463 U.S. 354 (1983) ................................................ 6

M’Naghten’s Case,

8 Eng. Rep. 718 (H.L. 1843) ................................... 8

People v. Horn,

158 Cal. App. 3d 1014 (1984) ......................... 21, 22

People v. Schmidt,

110 N.E. 945 (N.Y. 1915) ...................................... 13

People v. Serravo,

823 P.2d 128 (Colo. 1992) ............................... 13, 14

People v. Skinner,

704 P.2d 752 (Cal. 1985) ...................................... 15

iii

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018) ............................................ 4

State v. Armstrong,

671 So. 2d 307 (La. 1996) ............................... 12, 13

State v. Baker,

819 P.2d 1173 (Kan. 1991) ..................................... 9

State v. Cameron,

674 P.2d 650 (Wash. 1983) ....................... 15, 16, 17

State v. Crenshaw,

659 P.2d 488 (Wash. 1983) ................................... 13

State v. Gerone,

435 So. 2d 1132 (La. Ct. App. 1983)............... 18, 19

State v. Hudson,

No. 01C01-9508-CC-00270, 1999 WL 77844

(Tenn. Crim. Ct. App. Feb. 19, 1999) ............. 11, 12

State v. Jorrick,

4 P.3d 610 (Kan. 2000) ........................................... 9

State v. Peters,

643 So. 2d 1222 (La. 1994) ................................... 13

State v. Rawland,

199 N.W.2d 774 (Minn. 1972) ........................ 20, 21

State v. Wilson,

700 A.2d 633 (Conn. 1997) ............................. 17, 18

Tison v. Arizona,

481 U.S. 137 (1987) ................................................ 4

United States v. Bobbitt,

48 C.M.R. 302 (1974) ...................................... 19, 20

United States v. Freeman,

357 F.2d 606 (2d Cir. 1966) .................................... 4

United States v. Pohlot,

827 F.2d 889 (3d Cir. 1987) .................................. 10

Statutes

18 U.S.C. § 3553(a)(2) ................................................ 4

Cal. Pen. Code § 25(b) .............................................. 15

Colo. Rev. Stat. Ann. § 16-12-102 ............................ 14

Kan. Stat. Ann. § 22-3220 (2009) .............................. 9

Model Penal Code § 4.01 ............................................ 8

Other Authorities

1 W. Hawkins,

Pleas of the Crown (7th ed. 1795) .......................... 7

4 W. Blackstone,

Commentaries on the Laws of England (1769) ..... 7

Brian E. Elkins,

Idaho’s Repeal of the Insanity Defense: What Are

We Trying to Prove?,

31 Idaho L. Rev. 151 (1994) ................................... 7

Carmen Cirincione et al.,

Rates of Insanity Acquittals and the Factors

Associated with Successful Insanity Pleas,

23 Bull. Am. Acad. Psychiatry L. 399 (1995)....... 10

Elizabeth Bennion,

Death Is Different No Longer: Abolishing the

Insanity Defense Is Cruel and Unusual under

Graham v. Florida,

61 DePaul L. Rev. 1 (2011) ................................... 10

Lisa A. Callahan et al.,

The Volume and Characteristics of Insanity

Defense Pleas: An Eight-State Study,

19 Bull. Am. Acad. Psychiatry L. 331 (1991)....... 10

R. Michael Shoptaw,

M’Naghten Is a Fundamental Right: Why

Abolishing the Traditional Insanity Defense

Violates Due Process,

84 MISS. L. J. 1101 (2015)................................... 7, 8

Richard A. Pasewark,

Insanity Pleas: A Review of the Research Literature,

9 J. Psychiatry & L. 357 (1981)............................ 10

Rudolph Joseph Gerber,

The Insanity Defense (1984) .................................. 7

STATEMENT OF INTEREST

OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary

professional bar association that works on behalf of

criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

NACDL was founded in 1958. It has a

nationwide membership of many thousands of direct

members, and up to 40,000 with affiliates. NACDL’s

members include private criminal defense lawyers,

public defenders, military defense counsel, law

professors, and judges.

NACDL is the only

nationwide professional bar association for public

defenders and private criminal defense lawyers.

NACDL is dedicated to advancing the proper,

efficient, and fair administration of justice. NACDL

files numerous amicus briefs each year, in this Court

and others, seeking to provide assistance in cases

that present issues of broad importance to criminal

defendants, criminal defense lawyers, and the

criminal justice system as a whole. NACDL has a

Both parties consented to the filing of this amicus curiae

brief in support of Petitioner. No counsel to a party in this

case authored this brief in whole or in part. No party or

party’s counsel made any monetary contribution that was

intended to or did fund the preparation or submission of

this brief. No person or entity other than the amicus and

its counsel made any monetary contribution that was

intended to or did fund the preparation or submission of

this brief.

fundamental interest in ensuring that no person is

subject to criminal punishment based on an act for

which that person is not morally culpable.

NACDL has a particular interest in this case

because Kansas’s abolition of the insanity defense

removes a critical protection for criminal defendants

that has existed throughout the history of our

constitutional republic, and even well before. By

exposing individuals who are not morally responsible

for their actions to criminal conviction and

punishment—up to and including, as in this case,

the death penalty—Kansas’s approach violates

fundamental rights and degrades the criminal

justice system.

SUMMARY OF ARGUMENT

Kansas in recent years has abolished the

insanity defense, making the State an outlier both

historically and by modern standards. As a result,

criminal defendants in Kansas who suffer from

insanity can attempt only to rebut the prosecution’s

showing on the elements of an offense, including

mens rea. This approach allows for the criminal

conviction and punishment of people who lack moral

capacity—that is, the ability to distinguish right

from wrong and to control their behavior accordingly.

This unjust approach is fundamentally at odds

with American legal tradition and with the

principles the criminal justice system is meant to

serve. For centuries, lack of moral culpability by

reason of insanity has been a defense to a criminal

charge, and with good reason. Punishing individuals

who lack the ability to tell right from wrong and

conform their actions to that understanding does not

serve any of the purposes of punishment recognized

in American criminal law.

Kansas’s abolition of the insanity defense has

major

consequences,

including

life-or-death

consequences as in this case. To be sure, it is

relatively rare for criminal defendants to raise—let

alone obtain relief based on—the insanity defense.

Still, numerous courts in other states have reversed

convictions on grounds of moral incapacity, even in

instances where defendants might have had

cognitive capacity (an understanding of the nature

and quality of the acts committed) and thus the

requisite mens rea for the crime charged. But under

Kansas’s approach, such defendants face criminal

conviction and sentencing, and may even face the

death penalty, rather than commitment to a mental

health institution. That unjust result violates due

process and is profoundly out of line with the

principles of criminal responsibility and rationales

for punishment that this Court and others have long

recognized.

ARGUMENT

PRINCIPLED

RATIONALES

FOR

PUNISHMENT

NOT

JUSTIFY

CRIMINAL

RESPONSIBILITY

FOR

INDIVIDUALS WHO LACK MORAL

CULPABILITY

None

the

Purposes

Punishment

Embraced

American Criminal Law Justifies

Punishing People Who Lack Moral

Capacity

This Court has recognized four rationales for

criminal punishment: retribution, deterrence,

rehabilitation and incapacitation.

See RosalesMireles v. United States, 138 S. Ct. 1897, 1903 (2018);

see also 18 U.S.C. § 3553(a)(2). A state meets none

of these purposes when it punishes the “truly

irresponsible”—those

who

cannot

distinguish

between right and wrong and conform their actions

to that understanding. United States v. Freeman,

357 F.2d 606, 615 (2d Cir. 1966).

When a state punishes a defendant who is not

morally culpable, it does not achieve retribution.

The need to provide just and proportionate

punishment for an offense cannot support the

criminal punishment of a person who is not morally

culpable for that offense. See, e.g., Tison v. Arizona,

481 U.S. 137, 149 (1987) (“The heart of the

retribution rationale is that a criminal sentence

must be directly related to the personal culpability of

the criminal offender.”); cf. Ford v. Wainwright, 477

U.S. 399, 409 (1986) (“For today, no less than before,

we 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. Similarly, the natural

abhorrence civilized societies feel at killing one who

has no capacity to come to grips with his own

conscience or deity is still vivid today.” (citation

omitted)). Indeed, the whole concept of “just deserts”

does not fit crimes whose perpetrators lack moral

culpability.

Punishing such individuals also does not deter

crime, since those who lack moral culpability cannot

be deterred from engaging in acts that they cannot

recognize as wrongful and thereby refrain from

committing. As this Court has observed in another

line of cases, the same impairments that make

intellectually disabled defendants “less morally

culpable . . . also make it less likely that they can

process the information of the possibility of

execution as a penalty and, as a result, control their

conduct based upon that information.” Atkins v.

Virginia, 536 U.S. 304, 320 (2002). Punishing the

insane, like executing the incompetent, also

“provides no example to others and thus contributes

nothing to . . . deterrence.” Ford, 477 U.S. at 407.

Society’s interest in rehabilitation also surely

is not advanced by subjecting the insane to criminal

punishment rather than requiring them to receive

appropriate mental health services, up to and

including institutionalization that continues until

they are able to distinguish right from wrong and

control their actions. As this Court has recognized

in another context, denying a person access to the

“rehabilitative services” he needs “makes the

disproportionality of the sentence all the more

evident”—even more so where the sentence, such as

death, “forswears altogether the rehabilitative ideal.”

Graham v. Florida, 560 U.S. 48, 74 (2010).

Finally, the goal of incapacitation likewise is

not served when insane persons are sentenced, not

to receive the mental health treatment they need,

but to a prison where they likely will not receive it.

Insane persons sent to prison also are held there, not

until they are deemed well enough to reenter the

community, but until expiration of a fixed term

regardless of their level of sanity or dangerousness.

See Jones v. United States, 463 U.S. 354, 368 (1983)

(by contrast, a state may continue to hold an

insanity acquittee until “he has recovered his sanity

or is no longer dangerous”). Because none of the four

rationales for criminal punishment applies to

persons who lack the ability to distinguish right

from wrong and to control their behavior accordingly,

society is not justified in, nor does it benefit from,

punishing them.

Criminal punishment of such

individuals violates principles of fundamental

fairness and due process.

The Insanity Defense Historically Has

Protected from Criminal Punishment

Individuals Who Lack Moral Culpability

The traditional insanity defense has long

prevented society from visiting unjust punishment

on people who are not morally culpable for their

actions.

Indeed, the historical roots of this

protection are exceptionally lengthy and extensive.

The insanity defense, which has deep roots in

ancient Hebrew, Greek, and Roman legal doctrines,

was further developed in early English common law

as a “tool for pardon” to “protect those who lacked

‘full reasoning powers and were deprived of moral

responsibility.’” R. Michael Shoptaw, M’Naghten Is

a Fundamental Right: Why Abolishing the

Traditional Insanity Defense Violates Due Process,

84 MISS. L. J. 1101, 1106 (2015) (quoting Rudolph

Joseph Gerber, The Insanity Defense 9 (1984)).

By the fourteenth century, insanity was

recognized as a complete defense to a criminal

charge under English law. See Brian E. Elkins,

Idaho’s Repeal of the Insanity Defense: What Are We

Trying to Prove?, 31 Idaho L. Rev. 151, 161 (1994).

By the sixteenth century, English courts were

employing tests to determine whether criminal

defendants were able to distinguish between “good

and evil.” Shoptaw, supra, at 1107 (quoting Gerber,

The Insanity Defense, supra, at 10). At the time of

America’s independence, the notion of moral

culpability as a prerequisite for criminal punishment

was an ingrained principle in English law. See 1 W.

Hawkins, Pleas of the Crown 1–2 (7th ed. 1795)

(“[T]hose who are under a natural disability of

distinguishing between good and evil, as . . . ideots

and lunaticks, are not punishable by any criminal

prosecution whatsoever.”); 4 W. Blackstone,

Commentaries on the Laws of England 25 (1769)

(“[A] total idiocy, or absolute insanity, excuses from

the guilt, and of course from the punishment, of any

criminal action committed under such deprivation of

the senses . . . .”).

In 1843, M’Naghten’s Case held that a

defendant is not guilty by reason of insanity if,

at the time of the committing of 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 (H.L. 1843).

Today, nearly every state uses an insanity test

that incorporates a moral capacity component. See

Clark v. Arizona, 548 U.S. 735, 750–52 (2006). Most

states use a test based on one of three models, each

of which expressly or in practice includes such a

component: (1) the M’Naghten test; (2) the American

Law Institute’s Model Penal Code test, which looks

to defendants’ “substantial capacity” to “appreciate

the criminality of [their] conduct or to conform [their]

conduct to the requirements of law”; or (3) the

“product” test, which provides that a defendant

cannot be liable for criminal acts that were the

product of a mental disease or defect. See Shoptaw,

supra, at 1110 (alterations in original) (quoting

Model Penal Code § 4.01). The availability of an

insanity defense for defendants who lacked moral

capacity at the time of their offense thus not only

has deep historical roots, but also remains a nearly

unanimous practice among the states today.

II.

ABOLISHING THE INSANITY DEFENSE, AS

KANSAS HAS DONE, ALLOWS PEOPLE WHO

LACK MORAL CULPABILITY TO BE

IMPRISONED AND EXECUTED

Before 1996, defendants in Kansas, consistent

with the practice in most other states, could raise an

insanity defense under the M’Naghten rule. See

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

Kansas law now provides that “[m]ental disease or

defect” is “a defense to a prosecution under any

statute” only to the extent that it shows “that the

defendant . . . lacked the mental state required as an

element of the offense charged.” Kan. Stat. Ann.

§ 22-3220 (2009). 2

Consequently, Kansas law

permits imprisoning and even executing people

based on actions for which they are not morally

culpable, even though historically—and in nearly

every state today—the same lack of moral culpability

has been a defense to criminal responsibility.

Kansas’s purported “mens rea approach”

“eliminate[s] the insanity defense,” as the State’s

highest court has recognized. State v. Jorrick, 4 P.3d

610, 618 (Kan. 2000). As a practical matter, the

critical shortcoming of this approach is that “[t]he

mens rea element of a crime generally assesses only

whether persons intended to complete the act

performed.” Elizabeth Bennion, Death Is Different

No Longer: Abolishing the Insanity Defense Is Cruel

The Kansas legislature tweaked the language of § 22-3220

in a 2011 recodification, but the language of § 21-5209 is

substantially identical.

and Unusual under Graham v. Florida, 61 DePaul L.

Rev. 1, 54 (2011). It does not address “whether [a]

person was so delusional that they did not

understand the act was wrong.” Id. For that reason,

“[o]nly 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). After all,

even “a man who commits murder because he feels

compelled by demons still possesses the mens rea

required for murder.” Id. The criminal conviction of

such defendants is inconsistent with the

requirements of due process.

To be sure, where the insanity defense is

available it has been invoked only rarely, and has

succeeded even more rarely. Indeed, studies show

that less than one percent of defendants charged

with a felony ever raise the insanity defense—and

that, where it is raised, the insanity defense is more

likely to fail than not. See, e.g., Carmen Cirincione

et al., Rates of Insanity Acquittals and the Factors

Associated with Successful Insanity Pleas, 23 Bull.

Am. Acad. Psychiatry L. 399, 402 (1995); Lisa A.

Callahan et al., The Volume and Characteristics of

Insanity Defense Pleas: An Eight-State Study, 19

Bull. Am. Acad. Psychiatry L. 331, 334 (1991);

Richard A. Pasewark, Insanity Pleas: A Review of the

Research Literature, 9 J. Psychiatry & L. 357, 361–

66 (1981). But the fact that the insanity defense is

rare and its success even more so provides no

justification for precluding it in the exceptional

circumstances where it is implicated.

Indeed, in numerous cases, courts across the

nation have granted relief based on the longstanding

recognition that the Constitution does not permit

imposing criminal sanctions on individuals who lack

moral capacity and are therefore insane. These

cases, including those discussed below, illustrate the

practical consequences of Kansas’s approach. In

each case, while the defendant had cognitive capacity

and thus could form the mens rea to perform the acts

at issue, the defendant’s mental disorder deprived

him or her of the capacity to understand that the

acts were wrong or to conform his or her conduct to

that understanding. Defendants like these need

appropriate treatment—typically including a lengthy

period

institutionalization—rather

than

imprisonment. But in Kansas today, these same

defendants cannot raise an insanity defense and can

be found guilty and sentenced to prison—or, as here,

death—despite their lack of moral culpability.

“Satanic delusion” cases: One recurring

pattern in insanity cases involves defendants

suffering from a “Satanic delusion”—a belief that

they literally were killing Satan or a similar demonic

being.

In State v. Hudson, for example, the

Tennessee Court of Criminal Appeals reversed

Laura Ann Hudson’s convictions for arson and firstdegree murder because the court found that, under

Tennessee’s insanity test, the State had failed to

prove Hudson “was capable of appreciating the

wrongfulness of her conduct and conforming her

conduct to the requirements of the law.” No. 01C019508-CC-00270, 1999 WL 77844, at *8 (Tenn. Crim.

Ct. App. Feb. 19, 1999). Hudson had told police that

the victim was the “son of Satan,” and that God had

instructed her to kill him and “battle the Devil.” Id.

at *1. All three mental health experts who testified

at trial agreed that Hudson was legally insane, and

lay witnesses described numerous instances of her

bizarre behavior. Id. at *7. Months before the

killing, for example, Hudson expressed the belief

that she was “God’s favorite angel” and claimed she

could see the future. Id. at *2. Hudson told another

witness on two separate occasions that she was

“being tormented by the Devil.” Id. at *4. Another

witness “recalled an incident where [Hudson]

brought china, jewelry, and other items to [the

witness’s] home and broke them over a garbage can.”

Id. at *3. Even the testimony of the State’s lay

witnesses “[was] supportive of [Hudson’s] bizarre

behavior”; for example, “laying a crucifix on her

pregnant sister’s stomach,” “staying up all night to

color,” and claiming to have a “conversation with the

Devil at a bar.” Id. at *8. The court remanded for

entry of a judgment of “not guilty by reason of

insanity” and the initiation of judicial commitment

proceedings under state law. Id.

In another Satanic delusion case, State v.

Armstrong, the Louisiana Supreme Court reversed

Freddie Armstrong’s murder conviction because the

court found that the evidence of his insanity was so

great that “a rational juror could not have reached a

contrary decision.” 671 So. 2d 307, 313 (La. 1996).

At trial, four out of the five psychological experts

who testified concluded that Armstrong’s mental

illness rendered him incapable of distinguishing

right from wrong at the time of the offense. See id.

at 308. The court noted that the evidence showed a

“twenty-five year history of mental illness” involving

“delusions,

auditory

hallucinations,

religious

obsessions and occasional psychotic episodes.” Id. at

308, 312. The court found that, at the time of the

crime, Armstrong was under the delusion that the

victim was the anti-Christ. Id. at 311. Moreover,

the circumstances of the killing strongly

contradicted any conclusion that he “knew he was

doing wrong at the time.” Id. at 313; see also, e.g.,

State v. Peters, 643 So. 2d 1222, 1226 (La. 1994)

(defendant “show[ed] he was unable to distinguish

between right and wrong” where, among other

things, he assumed officers were confronting him “to

serve a commitment order, and not because he had

just shot his estranged wife,” and made no attempt

to conceal the gun).

Cases involving delusions of a command

from God: A related (and sometimes overlapping)

set of cases involves individuals who acted on a

delusional belief that they were following a direct

command from God. As the Supreme Court of

Colorado has observed, “the ‘deific-decree’ delusion”

is important to consider in “assessing a person’s

cognitive ability to distinguish right from wrong”

since, “[i]f a person insanely believes that ‘he has a

command from the Almighty to kill, it is difficult to

understand how such a man can know that it is

wrong for him to do it.’” People v. Serravo, 823 P.2d

128, 139–40 (Colo. 1992) (first quoting State v.

Crenshaw, 659 P.2d 488, 494 (Wash. 1983); and then

quoting People v. Schmidt, 110 N.E. 945, 948 (N.Y.

1915)).

The Serravo case provides a vivid illustration

of the “deific-decree delusion.” After Robert Pasqual

Serravo’s wife suffered a non-fatal stabbing in her

sleep, she found letters that Serravo had written,

stating that “[o]ur marriage was severed on Mother’s

Day when I put the knife in your back,” that “I have

gone to be with Jehovah in heaven for three and onehalf days,” and that “I must return for there is still a

great deal of work to be done.” Id. at 130–31

(alteration in original). Confronted about the letters,

Serravo told his wife that “God had told him to stab

her in order to sever the marriage bond.” Id. at 131.

At trial, several experts opined that Serravo suffered

from mental illness that prevented him from

distinguishing between right and wrong. Id. at 131–

32. The jury returned a verdict of not guilty by

reason of insanity. Id. at 132. On appeal, 3 the

Supreme Court of Colorado held that “a defendant

may be judged legally insane where, as here, the

defendant’s cognitive ability to distinguish right

from wrong with respect to an act charged as a crime

has been destroyed as a result of a psychotic

delusion that God has ordered him to commit the

act.” Id. at 130.

The State appealed pursuant to a Colorado statute that

authorizes the prosecution to “appeal any decision of a

court in a criminal case upon any question of law.” Id. at

130 n.1; Colo. Rev. Stat. Ann. § 16-12-102. The Supreme

Court of Colorado held, inter alia, that federal and state

double jeopardy principles prohibited the defendant’s

retrial on the issue of insanity. See Serravo, 823 P.2d at

130.

In People v. Skinner, another case involving

such a delusion, the Supreme Court of California

reversed Jesse Skinner’s second-degree murder

conviction where the trial court found, “on clearly

sufficient evidence,” that he “could not distinguish

right and wrong.” 704 P.2d 752, 764 (Cal. 1985). As

a result of Skinner’s mental illness, the trial court

found, he held a delusional belief that he had “a Godgiven right to kill” his wife, and believed his doing so

was “with complete moral and criminal impunity”

and “not wrongful because it is sanctified by the will

and desire of God.” Id. at 754–55.

The California Supreme Court held that

under the State’s insanity test, a defendant could

establish insanity based on a showing that he “was

incapable” either “of knowing or understanding the

nature and quality of his or her act” or “of

distinguishing right from wrong” at the time of the

offense. Id. at 753 (quoting Cal. Pen. Code § 25(b)).

Based on the record, the high court found that

although Skinner “knew he was committing an

act . . . that would, and was intended to, kill a

human being,” he “was not able to comprehend that

the act was wrong because his mental illness caused

him to believe that the act was not only morally

justified but was expected of him.” Id. at 760.

So too in State v. Cameron, the Supreme

Court of Washington reversed Gary Cameron’s

conviction for first-degree murder, holding that the

jury had been erroneously prevented from

considering Cameron’s insanity defense based on his

delusional belief that he was following a command

from God. 674 P.2d 650 (Wash. 1983). The court

found that while Cameron appeared to understand

his actions in killing his stepmother, and intended

their natural consequences, he could not distinguish

between right and wrong at the time of his act due to

delusions that the act was ordained by God. The

court noted that after the crime, Cameron made no

attempt to conceal the victim’s body, and was seen

downtown “wearing only a pair of women’s stretch

pants, a woman’s housecoat, a shirt and no shoes.”

Id. at 651. The following day, police apprehended

him “wander[ing] along the shoulder of” the

interstate “wearing only the stretch pants and one

shoe,” such that he was actually “thought to be an

escapee from a nearby mental hospital.”

Id.

Cameron promptly confessed, stating among other

things that his stepmother had practiced “sorcery”

and “witchcraft” and that while he knew his act was

against the law, “as far as right and wrong in the eye

of God,” he felt he had done “no particular wrong.”

Id. at 651–52.

All four testifying psychological experts

agreed that Cameron “believed he was an agent of

God, required to carry out God’s directions,” and that

Cameron “believed God commanded him to kill his

stepmother and that he was therefore obligated to

kill the ‘evil spirit.’” Id. at 652. The experts also

agreed that “while [Cameron] technically . . .

understood the mechanical nature of the act, he did

not have the capacity to discern between right and

wrong with reference to the act.” Id. at 653.

In overturning Cameron’s conviction, the

Supreme Court of Washington observed that the jury

had been instructed that the ability to tell right from

wrong referred only to knowledge that an act was

contrary to law. See id. Noting that “one who

believes that he is acting under the direct command

of God is no less insane because he nevertheless

knows murder is prohibited by the laws of man,” the

court held that the jury instruction as given

impermissibly deprived Cameron of an opportunity

to present an insanity defense based on the delusion

that he was acting under just such a command. Id.

at 654.

Cases involving other delusions and

psychotic episodes: Still other defendants have

obtained relief based on the insanity defense due to

various delusions and psychotic episodes that

deprived them of moral capacity. In State v. Wilson,

for example, the Supreme Court of Connecticut

reversed Andrew Wilson’s conviction for murder

where the trial court had failed to give an

appropriate jury instruction regarding whether

Wilson had the capacity to understand the

wrongfulness of his conduct. 700 A.2d 633, 635

(Conn. 1997). Wilson had, for months, harbored

delusions that the eventual victim and his son were

conspiring to destroy his life in all manner of ways.

Among other things, Wilson believed they “had

poisoned him with methamphetamine and had

hypnotized him in order to obtain control of his

thoughts.” Id. at 636. Wilson also believed that the

victim was “the mastermind of a large organization

bent on controlling the minds of others” and that he

and his son were responsible for the deaths of

Wilson’s mother and several family dogs, as well as

for a variety of personal problems Wilson had. Id.

Wilson repeatedly called the police over a period of

months to ask them to stop the victim and his son,

but they informed him that it was impossible to

investigate his allegations. Finally, one day, Wilson

quarreled with the victim and ultimately shot and

killed him. Later that day, he entered the local

police headquarters, repeated his numerous

allegations against the victim, and said he had shot

the victim because he “had to do it.” Id.

The Connecticut high court, analogizing

Wilson’s case to the cases involving defendants who

believed they were operating under commands from

God, held that Wilson was entitled to a jury

instruction that he was insane at the time of his act

if he could establish that he acted under a delusional

belief that society “would not have morally

condemned his actions.” Id. at 640.

Similarly, in State v. Gerone, a Louisiana

appellate court reversed the conviction for armed

robbery of John Gerone, a deeply disturbed

individual suffering from numerous delusions. 435

So. 2d 1132, 1137 (La. Ct. App. 1983). Gerone’s

mother testified that he had told his parents that he

had been approached by federal agents who

“hypnotized” him and “wanted him to work for the

CIA in an occult.” Id. at 1135. She recalled that,

one night, she found him sitting fully dressed with a

suitcase packed, waiting for the imagined agents to

pick him up. Id. at 1135–36. On other occasions, he

told his mother that he had become “psychic” and

“was not of this world,” and said “he was getting

messages from flying saucers; that airplanes dipped

their wings when they passed by to acknowledge him;

and that one day a helicopter was going to pick him

up in the back yard.” Id. at 1136. Gerone “spent

long periods of time in his room, could not hold a job,

and would not eat.” Id. During the criminal act of

which he was convicted—a bank robbery—Gerone

also demonstrated peculiar behavior, including

telling the bank manager that he had a criminal

record, claiming that he was taking money “for his

sick and dying mother,” and returning some of the

money before leaving “because he thought he was

taking too much.” Id. at 1132.

At trial, two psychiatrists testified that

Gerone was unable to appreciate the wrongfulness of

his armed robbery at the time of the act, due to the

culmination of a severe psychosis. See id. at 1135–

36. Finding that “the state ha[d] presented no

controverting evidence of merit that defendant was,

in fact, sane and able to know right from wrong at

the time of the commission of the crime,” the court

reversed Gerone’s conviction and remanded for

criminal commitment proceedings under Louisiana

law. Id. at 1137.

In United States v. Bobbitt, the Court of

Military Review found that the evidence was

insufficient to establish beyond a reasonable doubt

that Sergeant Thomas E. Bobbitt, accused of

aggravated assault, burglary, and other offenses,

was morally responsible for his actions. 48 C.M.R.

302 (1974). Both military and civilian mental health

experts testified at trial that Bobbitt had

schizophrenia that disrupted his moral capacity. See

id. at 303–04.

One psychiatrist “possessing

impeccable professional credentials” testified that he

believed “a ‘90 per cent probability’ existed that the

accused, at the time of the offenses, was unable to

distinguish right from wrong and adhere to the

right.” Id. at 303.

In State v. Rawland, the Supreme Court of

Minnesota reversed Frank Rawland’s conviction for

third-degree murder because Rawland was unable to

distinguish between right and wrong at the time of

the offense. 199 N.W.2d 774, 790 (Minn. 1972). 4

Rawland had a long history of delusions. Among

other things, on multiple occasions he had

announced his candidacy for President of the United

States by speaking into his AM radio—believing he

could “transmit messages to the world” by this

means—and had then been “disappointed when he

rode his bicycle into downtown St. Cloud expecting

to be greeted by crowds of well-wishers.” Id. at 776.

Rawland became convinced that his parents were

equipped to spy on him with electronic devices and

that they were part of a conspiracy to assassinate

him. Id. at 777. The evidence showed that on the

day Rawland killed his father, he discovered that his

father had taken his gun, which Rawland

understood as “a deliberate attempt on his father’s

part to render him defenseless against those who

were plotting to take his life.” Id. When he went to

The court held that Rawland had met the State’s

M’Naghten test without specifying which prong. See id. As

explained below, however, it is clear from the opinion that

Rawland knowingly and intentionally killed his father, and

that the only relevant question contested was whether

Rawland understood that his act was wrong.

confront his father, Rawland overheard him say over

the phone—in a conversation unrelated to

Rawland—“[h]e will have to be stopped,” at which

point Rawland stabbed his father, causing injuries

that resulted in death the following day. Id.

The Minnesota court found that given the

nature of Rawland’s mental illness and his behavior

over a number of years, it was clear that at times “he

must have acted without knowing whether the act

was right or wrong.” Id. at 787. Evaluating

Rawland’s condition at the time he killed his father,

the court found it particularly significant that “[a]ll

experts,” including the expert who had “the most

contact with defendant over the years,” “inferred

that in application of the right-and-wrong test he

was not at the time able to distinguish between right

and wrong on an ethical basis.” Id. at 788. The

court emphatically rejected arguments that it should

not consider this evidence, emphasizing that “a basic

postulate of our criminal law is a free agent

confronted with the choice between doing right and

doing wrong and choosing freely to do the wrong.” Id.

A final example is People v. Horn. In that

case, a California appellate court reversed defendant

Betty Horn’s conviction for vehicular manslaughter

because the court found that she was incapable of

distinguishing between right and wrong at the time

of the incident. 158 Cal. App. 3d 1014, 1034 (1984).

Horn had fueled her car at a gas station but lacked

the means to pay the attendant, and told the

attendant that someone was bringing money to her.

Id. at 1017–18. When the attendant suggested Horn

move her car so as not to block others, Horn pulled

out of the gas station, nearly striking another vehicle,

before driving through a parking lot, across a cement

border, into a field, into another parking lot, and

finally onto the open road. Id. at 1018. Pursued by

another attendant on a motorcycle as she

approached a red light, Horn pumped the brakes but

nonetheless entered the intersection, where she

struck and killed another motorcyclist. Id.

At trial, it was “established beyond any doubt

that [Horn] suffer[ed] from mental illness,”

characterized by one expert as a “manic-depressive

disorder” which could manifest in, among other

things,

“impulsiveness,

irrational

thinking,

grandiosity and irritability.” Id. at 1018–19. Two

experts testified that, based on her condition and the

relevant circumstances, at the time of her acts Horn,

in a manic state, would have been incapable of

distinguishing right from wrong or acting in a

morally responsible way. See id. The appeals court

observed that “[t]here was no real evidence that

[Horn] could not understand the nature and quality

of her act,” as “it [was] clear that she was aware that

she was driving her car, was being followed by the

gas station attendant on his motorcycle, and that she

was entering an intersection on a red light,” but

noted that the trial court “expressly found that

[Horn] . . . was incapable of distinguishing between

right and wrong at the time of the incident.” Id. at

1033–34. Because Horn’s mental illness critically

impeded her moral capacity, the court found her not

guilty by reason of insanity. Id. at 1034.

As these examples illustrate, the difference

between Kansas’s approach and an insanity defense

that accounts for a defendant’s moral culpability is

that Kansas permits imprisoning and even executing

individuals who lack the capacity to understand the

difference between right and wrong and conform

their actions to that understanding. In these cases,

while the defendants otherwise may have met the

mens rea and actus reus required for the crimes with

which they were charged (and thus are subject to

conviction in Kansas regardless whether the

defendants lacked moral capacity), courts rightly

concluded that their lack of moral capacity precluded

criminal responsibility.

Consequently, these

defendants were subject to treatment—which

typically included, of necessity, an extensive

institutionalization period—rather than punishment.

Petitioner’s case illustrates the injustice of

Kansas’s approach. Like the other defendants

discussed above, petitioner argues that he lacked the

moral capacity—the freedom of will to choose

between good and evil—at the time of his crime. See

Pet. at 5. But under Kansas law, the jury could

consider his mental illness only with respect to the

question of whether that illness rendered him

“incapable of possessing the required criminal

intent.” Pet. App. at 73a. Consequently, petitioner

was deprived even of the opportunity to proffer

evidence to support an insanity defense involving

moral capacity. As any defense attorney knows, this

required funneling of an insanity defense through

the narrower channel of mens rea necessarily colors

the entire presentation of evidence at trial. Kansas’s

approach dictates, for example, that psychological

evaluations be focused solely on “mens rea” issues

involving whether the defendant took deliberate

steps, regardless of any mental illness or disorder

that may have deprived him of the ability to

distinguish good from evil and conform his steps

accordingly.

In sum, by precluding petitioner from

contesting guilt on the ground that he could not

understand the difference between right and wrong

and conform his actions to that understanding,

Kansas has run afoul of the deep-rooted principle in

the American criminal justice system that criminal

punishment should be visited only on the morally

culpable.

CONCLUSION

For the foregoing reasons, the judgment of the

Kansas Supreme Court should be reversed.

Respectfully submitted,