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

No. 18-6135

IN THE

Supreme Court of the United States

_________

JAMES K. KAHLER,

Petitioner,

v.

STATE OF KANSAS,

Respondent.

________

On Writ of Certiorari

to the Supreme Court of Kansas

________

BRIEF FOR THE AMERICAN BAR

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

________

MATTHEW S. HELLMAN

JASON T. PERKINS

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

ROBERT M. CARLSON

COUNSEL OF RECORD

AMERICAN BAR ASSOCIATION

321 N. Clark Street

Chicago, IL 60654

(312) 988-5000

abapresident@americanbar.org

DAVID A. STRAUSS

SARAH M. KONSKY

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

Counsel for Amicus Curiae American Bar Association

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE .............................. 1

SUMMARY OF ARGUMENT ......................................... 4

ARGUMENT ....................................................................... 6

I.

The ABA’s Mental Health Standards

Project. ...................................................................... 6

A.

The 1984 Mental Health Standards. ......... 7

B.

The 2016 Mental Health Standards. ....... 10

II.

The Insanity Defense Reflects The Core

Values And Long Historical Tradition Of

Anglo-American Criminal Law. .......................... 11

III.

Kansas’s ‘Mens Rea Approach’ Is

Incompatible With the History and

Tradition of the Anglo-American Criminal

Justice System. ...................................................... 18

CONCLUSION ................................................................. 22

ii

TABLE OF AUTHORITIES

CASES

Clark v. Arizona, 548 U.S. 735 (2006)............ 14, 15, 16

Clark’s Case, 1 City-Hall Recorder (New York

City) 176 (1816) ....................................................... 14

Metrish v. Lancaster, 569 U.S. 351 (2013) ................. 10

M’Naghten’s Case, 8 Eng. Rep. 718 (H.L.

1843) .......................................................................... 14

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

(1952) ........................................................................ 19

People v. Schmidt, 110 N.E. 945 (N.Y. 1915) ............ 15

Rex v. Arnold, 16 How. St. Tr. 695 (1724)................. 13

Rex v. Lord Ferrers, 19 How. St. Tr. 885

(1760) ...................................................................13-14

Robidoux v. O’Brien, 643 F.3d 334 (1st Cir.

2011) .......................................................................... 10

Roper v. Simmons, 543 U.S. 551 (2005) ..................... 21

State v. Bethel, 66 P.3d 840 (Kan. 2003) ..................... 19

Tison v. Arizona, 481 U.S. 137 (1987) ........................ 21

United States v. Clarke, 25 F. Cas. 454

(C.C.D.C. 1818) (No. 14,810) .................................. 14

United States v. Preston, 751 F.3d 1008 (9th

Cir. 2014) .................................................................. 10

Watts v. Singletary, 87 F.3d 1282 (11th Cir.

1996) .......................................................................... 10

iii

STATUTES

Kan. Stat. Ann. § 22-3220 .............................................. 3

OTHER AUTHORITIES

ABA Criminal Justice Mental Health

Standards (1989) ............................................ passim

ABA Criminal Justice Standards on Mental

Health (2016), https://www.americanbar.

org/content/dam/aba/publications/criminal

_justice_standards/mental_health_standar

ds_2016.authcheckdam.pdf ................................ 2, 11

Randy Borum & Solomon M. Fulero,

Empirical Research on the Insanity

Defense and Attempted Reforms: Evidence

Toward Informed Policy, 23 Law & Human

Behav. 375 (1999) .................................................... 17

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) .................................... 17

1 William Hawkins, Pleas of the Crown (1716) ........ 13

Gary Melton et al., Psychological Evaluations

for the Courts: A Handbook for Mental

Health Professionals and Lawyers (4th ed.

2018) .......................................................................... 17

Jane Campbell Moriarty, Seeing Voices:

Potential Neuroscience Contributions to a

Reconstruction of Legal Insanity, 85

Fordham L. Rev. 599 (2016) .................................. 22

iv

Anthony Platt & Bernard Diamond, The

Origins of the Right and Wrong Test of

Criminal

Responsibility

and

Its

Subsequent Development in the United

States, 54 Cal. L. Rev. 1227 (1966) ....................... 13

Pretrial Justice Institute, Guidelines for

Analyzing State and Local Pretrial Laws

(2017) .......................................................................2-3

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

Rev. 974 (1932) ........................................................ 19

Christopher Slobogin, The American Bar

Association’s Criminal Justice Mental

Health Standards: Revisions for the

Twenty-First Century, 44 Hastings Const.

L.Q. 1 (2016) ............................................................. 10

1

INTEREST OF AMICUS CURIAE1

The American Bar Association (“ABA”) respectfully

submits this amicus brief in support of the petitioner to

provide this Court with the insight and perspective the

ABA has developed through intensive study of mental

health issues in the criminal justice system. That work

led to the ABA’s Criminal Justice Mental Health

Standards and associated Commentary, which trace the

history and tradition of the mental nonresponsibility (or

‘insanity’) defense from its origins centuries ago to the

modern era.2

The ABA is one of the largest voluntary professional

membership organizations—and is the leading

organization of legal professionals—in the United

States. The ABA has more than 400,000 members from

all fifty states, the District of Columbia, and the United

States territories. Its membership includes prosecutors,

public defenders, and private defense counsel, as well as

attorneys in law firms, corporations, nonprofit

1

Pursuant to this Court’s Rule 37.6, counsel for amicus curiae

certifies that this brief was not authored in whole or in part by

counsel for any party and that no person or entity other than amicus

curiae, its members, or its counsel has made a monetary

contribution intended to fund the preparation or submission of this

brief. Both parties in this case have given blanket consent to the

filing of amicus briefs.

2

Although the ABA uses the term “mental nonresponsibility”

defense instead of “insanity” defense in its Standards and

Commentary, see ABA Criminal Justice Mental Health Standards

323 & n.* (1989), for consistency with the question presented and

the parties’ briefs, this brief generally uses the term “insanity

defense” outside of direct quotations.

2

organizations, and local, state, and federal governments.

Members also include judges, legislators, law professors,

law students, and non-lawyer associates in related

fields.3

Since its founding in 1878, the ABA has worked to

protect the rights secured by the Constitution, including

the constitutional rights of criminal defendants under

the Due Process Clause and the Eighth Amendment’s

prohibition of cruel and unusual punishment. To that

end, the ABA Criminal Justice Mental Health

Standards set forth ninety-six standards articulating

the ABA’s recommendations “to define clearly the limits

of the state’s criminal powers governing the mentally

afflicted who become involved with the criminal law.”

ABA Criminal Justice Mental Health Standards at

xviii.4 The ABA Standards for Criminal Justice (in

which the Mental Health Standards originated) have

been quoted or cited in more than 120 U.S. Supreme

Court opinions, 700 federal circuit court opinions, 2,400

high state court opinions, and 2,100 law journal articles.

Pretrial Justice Institute, Guidelines for Analyzing

3

Neither this brief nor the decision to file it should be interpreted

to reflect the views of any judicial member of the ABA. No member

of the Judicial Division or judiciary participated in the adoption or

endorsement of the positions in this brief, nor was the brief

circulated to any member of the Judicial Division or judiciary before

filing.

4

The Standards and associated Commentary as written in the 1980s

are available in book form. In 2016 the ABA published updated

Standards, available at ABA Criminal Justice Standards on

Mental Health (2016) https://www.americanbar.org/content/dam

/aba/publications/criminal_justice_standards/mental_health_stand

ards_2016.authcheckdam.pdf.

3

State and Local Pretrial Laws II-ii (2017).

In formulating the Mental Health Standards, the

ABA conducted a comprehensive review of the history

and policies underlying the insanity defense in AngloAmerican law. Based on that review, the ABA adopted

Standard 7-6.1, stating that: “A person is not responsible

for criminal conduct if, at the time of such conduct, and

as a result of mental disease or defect, that person was

unable to appreciate the wrongfulness of such conduct.”

ABA Criminal Justice Mental Health Standards 330

(1989).

As part of that review, the ABA also considered laws

like Kan. Stat. Ann. § 22-3220 that eliminate the insanity

defense as an “independent, exculpatory doctrine.” Id. at

336–37. Kansas’s statute narrows a criminal factfinder’s

consideration of a defendant’s mental disorder to one

question: whether, as a result of that mental disorder,

the defendant “lacked the culpable mental state required

as an element of the crime charged. Mental disease or

defect is not otherwise a defense.” Kan. Stat. Ann. § 223220 (now codified at § 21-5209).

Under this “mens rea approach,” see ABA Criminal

Justice Mental Health Standards 338 (1989), judges and

juries no longer consider whether a defendant

understood that his or her criminal actions were morally

wrong. That is because modern-day statutory mens rea

requirements generally ask factfinders to consider a

defendant’s specific intent—and not more general

concepts like the defendant’s ‘evil mind’, his capability

for moral reasoning, or his moral culpability. Thus in the

absence of an insanity defense, “defendants could be

convicted of crimes” in places like Kansas “as long as

4

they knew what they were doing at the time of an

offense and possessed the intent to commit it.” Id. at 337.

Statutes like Kansas’s therefore allow a defendant “who

knowingly and intentionally killed his son under the

psychotic delusion that he was the biblical Abraham, and

his son the biblical Isaac, [to] be held criminally

responsible.” Id. The ABA rejected laws like Kansas’s

“out of hand” as “a jarring reversal of hundreds of years

of moral and legal history” that predicates criminal

culpability on moral blameworthiness. Id. at 336-37.

The ABA submits this amicus brief to help ensure

that this Court has the full benefit of the Commentary’s

historical analysis, as well as an explanation of why the

ABA has for decades unequivocally opposed laws like

the one here that substitute a mens rea approach in place

of an insanity defense that takes account of the moral

blameworthiness of the defendant’s conduct.

SUMMARY OF ARGUMENT

The Kansas statute at issue in this case allows a

defendant to be convicted of a crime and sentenced to

death, even when his mental disorder prevented him

from understanding that his actions were wrong. For

nearly four decades, the ABA has consistently opposed

state statutes that permit this result, given their

incompatibility with the Anglo-American legal tradition

and with commonly-accepted rationales for punishment.

I. Beginning in 1981, the ABA embarked on a

project of unprecedented depth and scope to develop the

Criminal Justice Mental Health Standards. The ABA

convened nearly eighty experts in law and mental health

in six task forces for this interdisciplinary effort. With

5

respect to the insanity defense, these experts

researched and drafted a set of ten Standards outlining

how courts should approach the defense and issues

related to it. Those Standards were presented to and

adopted by the ABA’s House of Delegates as official

ABA policy. Task force members subsequently drafted

an accompanying Commentary that was published in

1986. The Mental Health Standards were updated again

in 2016 after a similarly comprehensive review, with an

updated Commentary to be published in the future. The

ABA’s Standards and Commentary have been

repeatedly cited for their thoroughness, thoughtfulness,

and fidelity to the best values of the American criminal

justice system.

II. Specifically, Standard 7.6-1 (and its associated

Commentary) addresses the insanity defense. The

ABA’s review of the history and policies underlying

Anglo-American criminal law found that for centuries,

criminal culpability has required proof of morally

blameworthy conduct. Thus in the Anglo-American

tradition, morally blameless individuals with mental

disorders have been excused from punishment for their

otherwise criminal acts. To help define this class of

morally blameless criminal defendants consistent with

this age-old tradition, the ABA formulated a test that

would excuse from responsibility any person who—due

to their mental disorder—was unable to appreciate the

wrongfulness of their criminal conduct. Although the

precise test used for the insanity defense has varied over

time and by jurisdiction, the core principle underlying

the defense has remained the same: only a morally

blameworthy defendant should receive criminal

6

punishment.

III. In chronicling and endorsing the affirmative

insanity defense, the ABA Commentary specifically

considered and rejected the kind of ‘mens rea’ statute at

issue in this case. As the Commentary explained, the

mens rea approach is not the equivalent of an insanity

defense, nor anything close to a redefinition of it. To the

contrary, the mens rea approach omits the defining

feature of the criminal law’s traditional treatment of

people with mental disorders: an assessment of the

moral blameworthiness of the defendant’s conduct.

Statutes that prevent judges and juries from making

such an assessment seriously interfere with the exercise

of humane judgment. This is because a defendant may

intend to do an act that causes harm (i.e., have the

requisite statutory mens rea) without actually

understanding that the act is morally wrong—which is

an indispensable predicate for criminal punishment.

Thus a psychotic or delusional defendant could be

convicted under a statute like the one at issue in this case

without the prosecution ever having to demonstrate that

the defendant is morally accountable for their actions.

Such a result is fundamentally at odds with centuries of

the Anglo-American legal tradition.

ARGUMENT

I.

The ABA’s Mental Health Standards Project.

The ABA is well-known for its intensive study of the

history, tradition, and policies of the American criminal

justice system and its common law roots. One facet of

the ABA’s work in this area is its landmark Criminal

Justice Mental Health Standards Project. Beginning in

7

1981, the ABA brought together an expert group of

scholars, practitioners, and scientists to articulate

mental health standards based on a review of the history

and values of the American criminal law, as well as the

best science available. The ABA then comprehensively

revisited the Mental Health Standards from 2012 to

2016.

A.

The 1984 Mental Health Standards.

While the criminal law had confronted mental health

issues for centuries, the ABA recognized in the late

1970s that its criminal standards had not yet dealt with

that subject in detail. In 1981, the ABA established the

Criminal Justice Mental Health Standards Project to

address the effects of mental illness on criminal

defendants, to propose interdisciplinary solutions for

tackling unjust prosecutions and convictions of the

mentally ill, and to formulate standards for addressing

issues at the intersection of mental health and the

criminal law. Included as part of this review was an

assessment of the insanity defense, or the “defense of

mental nonresponsibility” as it is referred to in the

Standards.

To address that issue and others, the ABA assembled

a total of six task forces made up of forty-eight nationally

recognized psychiatrists, psychologists, other mental

health professionals, prosecutors, defense lawyers,

judges, and legal academics. Within a year, a total of

seventy-nine legal and mental health experts joined the

new Criminal Justice Mental Health Standards Project.

The task forces also established formal liaisons with

several other leading professional organizations,

including the American Psychiatric Association, the

8

American Psychological Association, the American

Orthopsychiatric Association, and the National Sheriffs’

Association to ensure adequate interdisciplinary

involvement from the medical, professional, and law

enforcement communities. These task forces engaged in

a comprehensive examination of legal history, social

science research, empirical evidence, and best practices

over the ensuing five years.

Shortly after the Mental Health Standards

development process had begun, John Hinckley Jr. was

found not guilty by reason of insanity after being tried

for his assassination attempt of President Reagan. That

verdict prompted a national discussion surrounding the

insanity defense throughout the early 1980s. This “new

round of controversy over the defense rival[ed] the

M’Naghten experience” of the 1840s and led to a spate of

state legislation that reflected a “hostile public mood”

toward the defense. ABA Criminal Justice Mental

Health Standards 323-24 (1989).

The ABA saw in these developments a need to better

understand the history and interdisciplinary scope of the

insanity defense, and placed a renewed emphasis on that

subject in its Mental Health Standards Project. The task

force considering nonresponsibility for crime (the topical

area that included the insanity defense) consisted of

prosecutors, defense lawyers, judges, professors,

psychiatrists, and psychologists. Although it received

interdisciplinary input, the task force’s review with

respect to the scope of the insanity defense was

principally guided by the principle that “‘mental

nonresponsibility’ is a jurisprudential, not a medical,

concept.” Id. at 329. “[T]he decisionmaking function in

9

criminal trials properly falls to jury and judge,” and thus

the historical treatment given to the subject by those

actors in England and America was central to this

inquiry. Id. at 329, 331.

Guided by this rich history, described in detail in

Part II below, the task force on mental nonresponsibility

produced draft Standards, which were adopted by the

ABA’s House of Delegates in 1984. To implement the

age-old principle of moral accountability in black-letter

law, the task force formulated—and the ABA adopted—

Standard 7-6.1, which stated that:

A person is not responsible for criminal conduct

if, at the time of such conduct, and as a result of

mental disease or defect, that person was

unable to appreciate the wrongfulness of such

conduct.

Id. at 330. Following the adoption of this and the other

ninety-five Standards, the Standards Committee

undertook the final and painstaking task of updating and

editing the lengthy Commentary that illuminates these

comprehensive guidelines for criminal justice reform. Id.

at xxii. That effort led to the publication of the original

Standards in 1986.

The Commentary that accompanied Standard 7-6.1

reflected the ABA’s careful consideration of history,

precedent, policy, and language in studying the insanity

defense. It also explicitly considered, and squarely

rejected, a new type of statute that a handful of states

had recently adopted: a “mens rea approach” that

replaced the affirmative insanity defense with a mens

rea inquiry. Id. at 336-38.

10

B.

The 2016 Mental Health Standards.

Since their initial adoption, the ABA Criminal

Justice Mental Health Standards have been relied upon

by many courts, including this Court. See, e.g., Metrish

v. Lancaster, 569 U.S. 351, 367 (2013); United States v.

Preston, 751 F.3d 1008, 1016-17 (9th Cir. 2014) (en banc);

Robidoux v. O’Brien, 643 F.3d 334, 339 (1st Cir. 2011);

Watts v. Singletary, 87 F.3d 1282, 1286 n.4 (11th Cir.

1996). With the passage of time and new insights into the

clinical understanding of mental illness, the Standards

Committee of the ABA’s Criminal Justice Section

launched a new Task Force in August 2012 to reexamine

the Mental Health Standards in their entirety. The Task

Force’s charge was to “draft proposed revisions to

reflect current law and best practices.” Christopher

Slobogin, The American Bar Association’s Criminal

Justice Mental Health Standards: Revisions for the

Twenty-First Century, 44 Hastings Const. L.Q. 1, 2

(2016).

The Task Force’s membership included three law

professors, one judge, two prosecutors, two defense

attorneys, two psychiatrists, and two psychologists. Id.

The Task Force consulted widely with liaisons from the

National Alliance on Mental Illness, the Department of

Justice, and the National Association of Criminal

Defense Lawyers. After more than three years of

deliberations, the Task Force recommended revisions to

some aspects of the Standards. The ABA’s House of

Delegates approved the updated Standards in August

2016, and the process of drafting commentary is ongoing.

While the 2016 Standards revised the 1984 edition in

some respects, the ABA left unchanged Standard 7-6.1’s

11

core conclusion: “A person is not responsible for criminal

conduct” if that person “was unable to appreciate the

wrongfulness of such conduct” as a result “of mental

disorder.”5

II.

The Insanity Defense Reflects The Core

Values And Long Historical Tradition Of

Anglo-American Criminal Law.

About a decade before Kansas adopted § 22-3220, the

ABA’s painstaking historical research demonstrated

that moral blameworthiness is an indispensable

principle of Anglo-American criminal law. Throughout

the ages, English and American courts have reserved

punishment for those defendants whose criminal acts

have earned society’s moral condemnation. The corollary

to that principle—that individuals without moral

culpability should be excused from legal punishment—is

equally entrenched in the history and tradition of our

justice system. These historical findings were the

5

Compare ABA Criminal Justice Mental Health Standards 330

(1989) with ABA Criminal Justice Standards on Mental Health 47

(2016). The updated 2016 version of Standard 7-6.1 is:

Standard 7-6.1. The defense of mental nonresponsibility

[insanity]

(a) A person is not responsible for criminal conduct if, at the

time of such conduct, and as a result of mental disorder,

that person was unable to appreciate the wrongfulness

of such conduct.

(b) When used as a legal term in this Standard, mental

disorder refers to any disorder that substantially

affected the mental or emotional processes of the

defendant at the time of the alleged offense, unless it was

a disorder manifested primarily by repeated criminal

conduct or was attributable solely to the acute effects of

voluntary use of alcohol or other drugs.

12

central reason why the ABA’s expert-driven Standards

process rejected mens rea approach statutes as

inconsistent with our justice system’s core values.

Early Anglo-American Tradition. The ABA found

that well before our Constitution was drafted AngloAmerican law rejected the proposition that the

concurrence of intent and conduct alone ends the

criminal inquiry. Instead, consistent with moral notions

stretching back to Greece, Rome, and the Hebrew

scriptures about “harmful acts traceable to fault and

those that occur without fault,” and the capability of

individuals to weigh “the moral implications of personal

behavior,” English kings and juries as far back as the

fourteenth and sixteenth centuries refused to punish

mentally ill defendants, even if their actions had

otherwise been criminal. See ABA Criminal Justice

Mental Health Standards at 324-25 & n.8.

By the seventeenth century, the ABA noted, jurist

Sir Matthew Hale summarized this legal principle as:

“where there is a total defect of the understanding there

is no free act of the will” that can be considered morally

culpable. See id. at 325 (citation omitted). Hale and

others justified this principle by comparing adults

afflicted with mental disorders that affect moral

awareness to minors, or others who did not possess the

requisite “understanding and memory” to “know what

he is doing.” Id. at 331.

Even at that early date, and although different

formulations of the exact test existed back then, the

general principle of moral accountability was widely

accepted. The ABA found that “[a]t about the same

time” as Hale explored the meaning of moral

13

understanding for criminal punishment, “other English

courts” excused from criminal liability “those who lacked

the capacity to distinguish ‘good from evil’ or ‘right from

wrong.’” Id.6 Courts of this period often treated “good

and evil” as a synonym for “right and wrong,” and used

this test in cases involving people with mental disorders.

See id. (citing Anthony Platt & Bernard L. Diamond, The

Origins of the ‘Right and Wrong’ Test of Criminal

Responsibility and Its Subsequent Development in the

United States, 54 Cal. L. Rev. 1227, 1236-37 (1966)); see

also Platt & Diamond, The Origins of the ‘Right and

Wrong’ Test, 54 Cal. L. Rev. at 1235-37 (“By the end of

the sixteenth century, the courts had begun to apply the

test of ‘knowledge of good and evil’ to the insane. … In

the eighteenth century, the ‘good and evil’ test was

regularly used in both insanity and infancy cases.”).7

6

In contrast, and as the decision under review freely admits, Kan.

Stat. Ann. § 22-3220 “abandons lack of ability to know right from

wrong as a defense” and “allows conviction of an individual who had

no capacity to know that what he or she was doing was wrong.” J.A.

243-44 (citing in part Delling v. Idaho, 568 U.S. 1038, 1041 (2012)

(Breyer, J., dissenting from denial of certiorari)).

7

In 1716, a legal treatise explained that “Guilt of offending against

any Law whatsoever, necessarily supposing a willful Disobedience

thereof, can never justly be imputed to those who are … uncapable

of understanding it” and thus “those who are under a natural

Disability of distinguishing between Good and Evil, as Infants

under the Age of Discretion, Ideots and Lunaticks, are not

punishable by any criminal Prosecution whatsoever.” I William

Hawkins, Pleas of the Crown, 1-2 (1716) (cleaned up). Not long after,

a judge in 1724 instructed the jury to consider whether the

defendant “knew what he was doing, and was able to distinguish

whether he was doing good or evil, and understood what he did.”

Rex v. Arnold, 16 How. St. Tr. 695, 765 (1724). Cf. Rex v. Lord

14

The Defense in the Nineteenth Century. By the

nineteenth century, the “right and wrong” test for

gauging a defendant’s capacity for moral reasoning was

firmly entrenched in both English and American law.

See, e.g., Clark’s Case, 1 City-Hall Recorder (New York

City) 176, 177 (1816) (“The principal subject of

inquiry . . . is whether the prisoner, at the time he

committed this offence, had sufficient capacity to discern

good from evil.”); see also United States v. Clarke, 25 F.

Cas. 454 (C.C.D.C. 1818) (No. 14,810) (asking jury to

decide whether “at the time of committing the act

charged” the defendant was “conscious of the moral

turpitude of the act”). The classic formulation, as the

ABA recognized, came from the House of Lords in

M’Naghten’s Case, which declared in 1843 that a

defendant who did not “know the nature and quality of

the act he was doing” or who “did not know what he was

doing was wrong” would not be held criminally liable.

ABA Criminal Justice Mental Health Standards 336

(1989) (quoting M’Naghten’s Case, 8 Eng. Rep. 718, 722

(H.L. 1843)); see also Clark v. Arizona, 548 U.S. 735,

747–48 (2006) (explaining the M’Naghten rule).

Underlying the M’Naghten formulation was the premise

that a defendant must “possess a sufficient degree of

reason to be responsible for his crimes,” 8 Eng. Rep. at

722, a presumption to which the insanity defense

responds, and a presumption that, in the vast majority

of criminal prosecutions, goes unrebutted.

Ferrers, 19 How. St. Tr. 885, 947-48 (1760) (prosecution urging

conviction of the defendant because he could “discern the difference

between moral good and evil” and had both “the capacity and

intention” needed for guilt).

15

The M’Naghten test soon “became the accepted

standard in both [England and America] within a short

period of time,” as many American jurisdictions

accepted it as the governing formulation of the insanity

defense. ABA Criminal Justice Mental Health

Standards 331–34 (1989). States, commentators, and

nongovernmental organizations such as the ABA have

since offered a wide variety of formulations for the

black-letter test, several of which derive at least in part

from M’Naghten, see id.; Clark, 548 U.S. at 748-53, but

at bottom the insanity defense remains grounded in the

same basic logic articulated long ago: that a lack of moral

culpability for criminal actions should be a defense to

punishment for those actions, see ABA Criminal

Justice Mental Health Standards 324 (1989) (“The basis

for the nonresponsibility defense is a moral one”); see

also People v. Schmidt, 110 N.E. 945, 947 (N.Y. 1915)

(Cardozo, J.) (“…it is the knowledge of wrong, conceived

of as moral wrong, that seems to have been established

by [M’Naghten] as the controlling test. That must

certainly have been the test under the older law …

[which involved] a capacity to distinguish between good

and evil as abstract qualities.”).

Modern Formulations. By the turn of the twentieth

century, approximately two-thirds of the States had

adopted the M’Naghten rule, thus ratifying its

underlying moral precepts. ABA Criminal Justice

Mental Health Standards 332 (1989). Nearly all of the

others had adopted “nonresponsibility tests consisting of

M’Naghten and the irresistible impulse rule.” Id. The

latter test “posited that persons who could not control

their actions should not be held criminally responsible

16

for them.” Id.

That state of affairs remained the same until the

1950s when the American Law Institute defined the

defense in the Model Penal Code. That definition was

also rooted in the notion of moral accountability:

a person is not responsible for criminal conduct “if … 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 the law.” Id. at 333 (quoting

Model Penal Code §4.01). The Model Penal Code

definition was adopted by more than 20 States, id., and

more than a dozen subscribed to it a half-century later,

see Clark, 548 U.S. at 751 & n.15. Only a very small

minority of states have departed from this longstanding

tradition and taken the “no affirmative insanity defense”

position that Kansas seeks to defend here. Id. at 752 &

n.20.

Empirical research. In addition, in its Commentary,

the ABA responded to and discredited the common

misconception that the insanity defense is

systematically abused. ABA Criminal Justice Mental

Health Standards 342 (1989). At that time, statistics

showed that among invocations of the defense “that are

successful, most are the result of plea bargain

arrangements and many more are resolved at

uncontested bench trials.” Id. The notion that the

defense often leads to a “‘battle of the experts’ before

‘impressionable’ juries” was mistaken. Id.

Indeed, empirical studies have shown that the

insanity defense is raised in less than 1% of felony cases

nationwide, and is successful in only a fraction of those

17

cases. Randy Borum & Solomon M. Fulero, Empirical

Research on the Insanity Defense and Attempted

Reforms: Evidence Toward Informed Policy, 23 Law &

Human Behav. 375, 378 (1999); see also Gary Melton et

al., Psychological Evaluations for the Courts: A

Handbook for Mental Health Professionals and

Lawyers 200 & 795 n.11 (4th ed. 2018).8 Research also

indicates that forensic evaluators seldom conclude that

defendants referred for evaluation qualify for the

defense. See Melton et al., Psychological Evaluations

for the Courts at 200 & 795 n.14. And just as the ABA

found, most insanity adjudications involve a plea bargain

or bench trial and not a jury verdict. Melton et al.,

Psychological Evaluations for the Courts 200 & 795-96

n.19 (citing multistate study that found that less than

15% of adjudications involving insanity claims were

conducted by jury trial).

After canvassing this history from the early

seventeenth century onwards, the ABA concluded that

“a defense of mental nonresponsibility [insanity] is

necessary to the fair administration of criminal justice.”

ABA Criminal Justice Mental Health Standards 338

(1989). While no “bright line exists between the

responsible and the nonresponsible” from a medical or

8

Other studies echo this conclusion, finding that only the “most

disturbed” were successful in invoking the insanity defense. Lisa A.

Callahan et al., The Volume and Characteristics of Insanity

Defense Pleas: An Eight-State Study, 19 Bull. Am. Acad. Psychiatry

& L. 331, 337 (1991) (reporting results from an eight-state study and

finding that “the popular concept that the insanity defense is an

‘easy out’ for defendants who are either feigning mental illness or

who claim temporary insanity is clearly untrue.”).

18

clinical perspective, the study concluded that it is

necessary for criminal factfinders as a matter of “moral

imperative” to consider whether each individual

defendant can be held culpable for their actions and

subsequently punished. See id. at 338, 342.

III.

Kansas’s ‘Mens Rea Approach’ Is Incompatible

With the History and Tradition of the AngloAmerican Criminal Justice System.

In this case, Kansas contends that its mens rea

approach is an acceptable substitute for the traditional

affirmative insanity defense. The ABA has long rejected

that proposition, because the mens rea approach

contravenes the core rationale of the insanity defense:

that criminal punishment is inappropriate for a

defendant who, due to their mental disorder, cannot

appreciate that their actions are morally blameworthy.

A person may intend to perform an act that is criminal

(and thus have the requisite mens rea for the crime), yet

not understand that the act is wrong because of mental

incapacity. To impose criminal punishment for conduct

that, by definition, is not morally blameworthy,

represents “a jarring reversal of [the] hundreds of years

of moral and legal history” sketched above and it

“inhibits if not prevents the exercise of humane

judgment that has distinguished our criminal law

heritage.” Id. at 337-38.

The Commentary explained that at common law the

concept of mens rea “originally was regarded as a

generalized requirement of moral blameworthiness”

that must be proven in order to impose “criminal

liability.” Id. at 337. But here, Kansas admits that it

makes no such finding anymore in its mens rea

19

consideration, at least with respect to the crime at issue

in this appeal (also the classic crime associated with the

insanity defense)—murder.9

Indeed, as the ABA also explained, in the last

hundred years “mens rea terminology has come to refer

to the specific state of mind required for the conviction

of particular criminal offenses.” Id.10 If the elements of

a particular crime do not contain any consideration of

moral blameworthiness, as Kansas confirms with

respect to its crime of murder, then defendants would be

“convicted … as long as they knew what they were doing

at the time of an offense and possessed the intent to

commit it.” Id.

“[F]or example, a defendant who knowingly and

intentionally killed his son under the psychotic delusion

9

See State v. Bethel, 66 P.3d 840, 850 (Kan. 2003) (“In a case similar

to the present one where a defendant has stated that he or she

thought about it ahead of time and intended to kill his or her victims,

a jury’s deliberation would need to go no further than those two

elements and there would be no consideration of whether

wrongfulness was inherent in the defendant’s intent” — thus “the

range of the jury’s consideration has been significantly narrowed”).

As the decision under review confirms, Kan. Stat. Ann. § 22-3220

“allows conviction of an individual who had no capacity to know that

what he or she was doing was wrong.” J.A. 244.

10

See also Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev. 974,

1016-17 (1932) (until “modern” times, the “mental factors necessary

for criminality were based upon a mind bent on evil-doing in the

sense of moral wrong,” in contrast to modern mens rea formulations

that focus on “protecting social and public interests”); Morissette v.

United States, 342 U.S. 246, 251-52 (1952) (under American common

law, crime “generally constituted only from concurrence of an evilmeaning mind with an evil-doing hand”).

20

that he was the biblical Abraham, and his son the biblical

Isaac, could be held criminally responsible.” Id. In short,

a Kansas murder jury is no longer called upon to perform

any moral calculus as to a psychotic defendant’s

culpability, provided the defendant knew (at least in the

abstract), that he or she was killing a human being. That

policy is inconsistent and irreconcilable with the AngloAmerican criminal law tradition, which is what led the

ABA to reject mens rea statutes “out of hand.” Id. at

336–37.

Another moral problem that the ABA commentary

identified with laws like Kansas’s is rooted in presentday concerns: “the mens rea limitation forces judges and

juries confronted with defendants who are

uncontrovertibly psychotic either to return morally

obtuse convictions” by punishing those who are not

responsible moral agents, “or to acquit in outright

defiance of the law” and its obligation to uphold order

and provide justice. See id. at 338.

By forcing a strictly binary choice of guilty/not guilty

upon a situation in which reprehensible acts may have

been committed without clear moral responsibility, the

Kansas mens rea approach leaves criminal factfinders to

select between two equally unpalatable and unjust

results. See id. A system that provides only two unjust

options to its key decisionmaker cannot be said to

respond to the “moral imperative” of providing the

humane and “fair administration of criminal justice.” See

id.

The ABA thus concluded in its Commentary that the

mens rea approach also constitutes “an unfortunate and

unwarranted overreaction to the problems typified by

21

the Hinckley verdict” and popular reaction to it, see id.

at 337, because it leads to unjust results while also failing

to meaningfully advance the integrity of the legal

process or the criminal justice system. Indeed, our

system only punishes those who should be held morally

accountable.

That basic logic of moral culpability—what the ABA

has called the “moral basis of the mental

nonresponsibility [insanity] defense”—is “undeniable

and has been reaffirmed throughout the history of

western civilization.” Id. at 336. That moral logic

persists today, as is evident in the sentencing context.

See 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.”); Roper v.

Simmons, 543 U.S. 551, 568 (2005) (“Capital punishment

must be limited to those offenders … whose extreme

culpability makes them ‘the most deserving of

execution’” (citation omitted)).

As the ABA concluded in its Commentary, from a

moral perspective, mentally disordered and morally

blameless defendants “should not be punished as

criminals,” and should “be confined only upon a showing

that they are dangerous.” ABA Criminal Justice

Mental Health Standards 330 (1989). While there are

“various formulations of the defense” that set forth

different tests, all of them “respond[] to [the] moral

imperative” of punishing only those defendants who

have earned society’s condemnation. See id. at 338. After

another round of comprehensive review, the ABA’s

updated 2016 Standards retain that same core focus on

22

moral culpability, see supra at 11 & n. 5, a concept which

from early Anglo-American legal history up through the

present day has been recognized as “critical to our

shared notions of justice,” Jane Campbell Moriarty,

Seeing Voices: Potential Neuroscience Contributions to

a Reconstruction of Legal Insanity, 85 Fordham L. Rev.

599, 600 (2016).

CONCLUSION

This Court should reverse the decision of the

Supreme Court of Kansas.

Respectfully submitted,

MATTHEW S. HELLMAN

JASON T. PERKINS

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001

ROBERT M. CARLSON

COUNSEL OF RECORD

AMERICAN BAR ASSOCIATION

321 N. Clark Street

Chicago, IL 60654

(312) 988-5000

abapresident@americanbar.org

DAVID A. STRAUSS

SARAH M. KONSKY

JENNER & BLOCK

SUPREME COURT AND

APPELLATE CLINIC AT

THE UNIVERSITY OF

CHICAGO LAW SCHOOL

1111 E. 60th Street

Chicago, IL 60637

Counsel for Amicus Curiae American Bar Association