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.

KANSAS,

Respondent.

On Writ of Certiorari to the Supreme Court of K ansas

BRIEF OF AMICI CURIAE

THE AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU FOUNDATION OF KANSAS

IN SUPPORT OF PETITIONER

Lauren Bonds

ACLU Foundation of K ansas

6701 West 64th Street, Suite 210

Overland Park, KS 66202

(913) 490-4100

Attorney for Amicus Curiae

the ACLU Foundation

of Kansas

Caitlin Halligan

Counsel of Record

Jessica E. Underwood

Ryan W. A llison

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, NY 10104

(212) 390-9000

challigan@selendygay.com

Attorneys for Amicus

Curiae the American Civil

Liberties Union

(For Continuation of Appearances See Inside Cover)

288637

A

(800) 274-3321 • (800) 359-6859

David Cole

A merican Civil Liberties

Union Foundation

915 15th Street NW

Washington, DC 20005

(202) 457-0800

- and -

Cassandra Stubbs

A merican Civil Liberties

Union Foundation

Capital Punishment Project

201 West Main Street,

Suite 402

Durham, NC 27701

(919) 682-5659

Attorneys for Amicus Curiae the

American Civil Liberties Union

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

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

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Eighth and Fourteenth Amendments

require states to provide an insanity

defense in criminal prosecutions . . . . . . . . . . . . . 5

A. The insanity defense is a fundamental

element of justice deeply rooted in

our Nation’s history and is therefore

required by the Due Process Clause . . . . . . 5

B. Abolishing the insanity defense serves

no legitimate penological purpose and

violates the Eighth Amendment . . . . . . . . . 10

II. The outlier statutes that abolished the

insanity defense were largely a reaction to

John Hinckley’s use of the defense and lacked

any legitimate penological justification . . . . . . . 14

III. Objections to the insanity defense rest on

misconceptions about its use and impact . . . . . . 18

ii

Table of Contents

Page

A. The insanity defense is not overused . . . . . 19

B. Defendants do not fake insanity . . . . . . . . . 20

C. T he i n s a n it y defen se do e s not

result in the release of dangerous

criminals into society . . . . . . . . . . . . . . . . . . 20

D. A constitutionally mandated insanity

defense is plainly administrable, as

evidenced by its lengthy history . . . . . . . . . 22

IV. Neither mens rea nor the ability to present

mental-state evidence at the penalty

phase of a capital case is an adequate

substitute for an insanity defense . . . . . . . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

Atkins v. Virginia,

536 U.S. 304 (2002) . . . . . . . . . . . . . . . . . . . 9, 10, 23, 27

Carpenter v. United States,

138 S. Ct. 2206 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Clark v. Arizona,

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

Davis v. United States,

160 U.S. 469 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

Delling v. Idaho,

568 U.S. 1038 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 3, 26

Durham v. United States,

214 F.2d 862 (D.C. Cir. 1954) . . . . . . . . . . . . . . . . . . . 15

Enmund v. Florida,

458 U.S. 782 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Ewing v. California,

538 U.S. 11 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Finger v. State,

27 P.3d 66 (Nev. 2001) . . . . . . . . . . . . . . . . . 8, 15, 17, 26

iv

Cited Authorities

Page

Ford v. Wainwright,

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

Graham v. Florida,

560 U.S. 48 (2010) . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 14

Halbert v. Michigan,

545 U.S. 605 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Hall v. Florida,

572 U.S. 701 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Ingles v. People,

22 P.2d 1109 (Colo. 1933) . . . . . . . . . . . . . . . . . . . . . . . . 9

Jones v. United States,

463 U.S. 354 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 14, 21

Kennedy v. Louisiana,

554 U.S. 407 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

McDonald v. City of Chicago,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

McKoy v. North Carolina,

494 U.S. 433 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Morissette v. United States,

342 U.S. 246 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 25

v

Cited Authorities

Page

Mullaney v. Wilbur,

421 U.S. 684 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Payne v. Tennessee,

501 U.S. 808 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Penry v. Lynaugh,

492 U.S. 302 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Skinner,

704 P.2d 752 (Cal. 1985) . . . . . . . . . . . . . . . . . . . . . . . . 8

Robinson v. California,

370 U.S. 660 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Roper v. Simmons,

543 U.S. 551 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Sinclair v. State,

132 So. 581 (Miss. 1931) . . . . . . . . . . . . . . . . . . . 7, 9, 15

Smith v. United States,

36 F.2d 548 (D.C. Cir. 1929) . . . . . . . . . . . . . . . . . . . . 15

State ex rel. Causey,

363 So.2d 472 (La. 1978) . . . . . . . . . . . . . . . . . . . . . . . . 8

State v. Doney,

636 P.2d 1377 (Mont. 1981) . . . . . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

State v. Herrera,

895 P.2d 359 (Utah 1995) . . . . . . . . . . . . . 11, 17, 18, 26

State v. Hoffman,

328 N.W.2d 709 (Minn. 1982) . . . . . . . . . . . . . . . . . . . . 8

State v. Johnson,

399 A.2d 469 (R.I. 1979) . . . . . . . . . . . . . . . . . . . . 23-24

State v. Kahler,

410 P.3d 105 (Kan. 2018) . . . . . . . . . . . . . . . . . . . . . . . 28

State v. Lange,

123 So. 639 (La. 1929) . . . . . . . . . . . . . . . . . . . . . . . 7, 15

State v. Strasburg,

110 P. 1020 (Wash. 1910) . . . . . . . . . . . . . . . . . . . 7, 9, 15

State v. Young,

853 P.2d 327 (Utah 1993) . . . . . . . . . . . . . . . . . . . . . . 17

Timbs v. Indiana,

139 S. Ct. 682 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tison v. Arizona,

481 U.S. 137 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Denny-Shaffer,

2 F.3d 999 (10th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 6

vii

Cited Authorities

Page

United States v. Freeman,

357 F.2d 606 (2d Cir. 1966) . . . . . . . . . . . . . . . . . . . . . 13

United States v. Hinckley,

200 F. Supp. 3d 1 (D.D.C. 2016) . . . . . . . . . . . . . . . . . 22

United States v. Lyons,

739 F.2d 994 (5th Cir. 1984) . . . . . . . . . . . . . . . . . . . . 19

United States v. Pohlot,

827 F.2d 889 (3d Cir. 1987) . . . . . . . . . . . . . . . . . 2, 3, 25

Washington v. Glucksberg,

521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . 5-6, 10

Watts v. United States,

394 U.S. 705 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Weems v. United States,

217 U.S. 349 (1910) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

STATUTES AND CONSTITUTION:

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

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . passim

18 U.S.C. § 3583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

K an. Stat. A nn. § 21-5209 (2013) . . . . . . . . . . . . . . . . . . . 2

viii

Cited Authorities

Page

K an. Stat. A nn. § 22-3220 (2009) . . . . . . . . . . . . . . . . . . . 2

Mont. Code A nn. § 46-14-102 (2015) . . . . . . . . . . . . . . . . 16

OTHER AUTHORITIES:

A m. Psychiatric A ss’n, Position Statement on the

Insanity Defense (Nov. 2014) . . . . . . . . . . . . . . . . . . . 11

Jeanne Matthews Bender, Af ter Abolition:

The Present State of the Insanity Defense

in Montana, 45 Mont. L. Rev. 133 (1984) . . . . . . . . 16

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) . . . . . . . . . . . . . . . . . . .9, 13

Ellen Fels Berkman, Note, Mental Illness as

an Aggravating Circumstance in Capital

Sentencing, 89 Colum. L. Rev. 291 (1999) . . . . . . . . 28

4 William Blackstone, Commentaries 24 (1769) . . . . . . 6

William J. Bowers, Marla Sandys & Benjamin

Steiner, Foreclosed Impartiality in Capital

Sentencing: Jurors’ Predispositions, Guilt-Trial

Experience, and Premature Decision-Making,

83 Cornell L. Rev. 1476 (1998) . . . . . . . . . . . . . . . . . 28

ix

Cited Authorities

Page

Jeraldine Braff, et al., Detention Patterns

of Successful and Unsuccessful Insanity

Defendants, 21 Criminology 439 (1983) . . . . . . . . . . 20

Jennifer Bronson & M arcus Berzofsky, U.S.

D ep ’ t of Justice , I ndicators of M enta l

Health Problems Reported by Prisoners and

Jail Inmates (June 2017) . . . . . . . . . . . . . . . . . . . . . . 13

Rita D. Buitendorp, Note, A Statutory Lesson from

“Big Sky Country” on Abolishing the Insanity

Defense, 30 Val. U. L. Rev. 965 (1996) . . . . . . . . . . . 24

Lisa A. Callahan, et al., The Volume and

C h a r a c t e r i s t i c s of In s a n i t y D e fe n s e

Pleas: An Eight-State Study, 19 B u ll .

A m. Acad. Psychiatry L. 331 (1991) . . . . . . . . . . 19, 24

Erika Eichelberger, Alaska may abandon

criminal verdict behind longer sentences for

mentally ill, The Guardian (Apr. 4, 2016) . . . . . . . . 28

Brian E. Elkins, Idaho’s repeal of the insanity

defense: What are we tr ying to prove?,

31 Idaho L. Rev. 151 (1994) . . . . . . . . . . . . . . . 6, 16, 17

Jodie English, The Light Between Twilight and

Dusk: Federal Criminal Law and the Volitional

Insanity Defense, 40 Hastings L.J. 1 (1988) . . . . . . 13

Vincent J. Fuller, United States v. John W. Hinckley

Jr. (1982), 33 Loy. L.A. L. Rev. 699 (2000) . . . . . . . . 16

x

Cited Authorities

Page

Julie E. Grachek, Note, The Insanity Defense in the

Twenty-First Century: How Recent Supreme

Court Case Law Can Improve the System,

81 Ind. L.J. 1479 (2006) . . . . . . . . . . . . . . . . . . . . .12, 13

Timothy S. Hall, Legal Fictions and Moral

Reasoning: Capital Punishment and the

Mentally Retarded Defendant After Penry v.

Johnson, 35 A kron L. Rev. 327 (2002) . . . . . . . . . . . 12

G a r d i n e r H a r r i s , Jo h n Hi n c k l e y , W h o

Tried to Kill Reagan, Will Be Released,

N.Y. Times (July 27, 2016) . . . . . . . . . . . . . . . . . . . 21-22

Jessica Harrison, Comment, Idaho’s Abolition

of the Insanity Defense—An Ineffective,

Costly, and Unconstitutional Eradication,

51 Idaho L. Rev. 575 (2015) . . . . . . . . . . . . . . . . . . . . 13

Harv. L. Rev. Ass’n, Idaho Supreme Court

Upholds Abolition of Insanity Defense Against

State and Federal Constitutional Challenges,

104 Harv. L. Rev. 1132 (1991) . . . . . . . . . . . . . . . . . . 26

Spencer S. Hsu, U.S. Judge Eases Release

Conditions for Would-Be Reagan Assassin John

W. Hinckley Jr., Wash. Post (Nov. 16, 2018) . . . . . . 22

Doris J. James & Lauren E. Glaze, U.S. Dep’t of

Justice, Mental Health Problems of Prison and

Jail Inmates (2006) . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

xi

Cited Authorities

Page

Jeffrey S. Janofsky, et al., Defendants Pleading

Insanity: An Analysis of Outcome, 17 Bull. Am.

Acad. Psychiatry L. 203 (1989) . . . . . . . . . . . . . . . . . 19

Phillip E. Johnson, Madness and the Criminal Law

(Book Review), 50 U. Chi. L. Rev. 1534 (1983) . . . . 16

Dora W. Klein, Memoir as Witness to Mental Illness,

43 L. & Psychol. Rev. 133 (2019) . . . . . . . . . . . . . . . .23

John Q. La Fond & Mary L. Durham, Cognitive

Dissonance: Have Insanity Defense and Civil

Commitment Reforms Made a Difference?,

39 Vill. L. Rev. 71 (1994) . . . . . . . . . . . . . . . . . . . 19, 21

Leslie A. Leatherwood, Note, Sanity in Alaska:

A Constitutional Assessment of the Insanity

Defense Statute, 10 A laska L. Rev. 65 (1993) . . . . . 17

Stephan M. LeBlanc, Cruelty to the Mentally

Ill: An Eighth Amendment Challenge to the

Abolition of the Insanity Defense, 56 A m .

U. L. Rev. 1281 (2007) . . . . . . . . . . . . . . . . . 9-10, 14, 23

Beatrice R. Maidman, Note, The Legal Insanity

Defense: Transforming the Legal Theory

int o a Medi ca l St an d ar d , 9 6 B.U. L .

Rev. 1831 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21

A nd r e w P. M a r c h , In s a ni ty in A l a sk a ,

98 Geo. L. J. 1481 (2010) . . . . . . . . . . . . . . . . . . . . . 6, 16

xii

Cited Authorities

Page

Ira Mickenberg, A Pleasant Surprise: The Guilty

but Mentally Ill Verdict Has Both Succeeded

in Its Own Right and Successfully Preserved

the Traditional Role of the Insanity Defense,

55 U. Cin. L. Rev. 943 (1987) . . . . . . . . . . . . . . . . 20, 21

Stephen J. Morse & Richard J. Bonnie, Abolition

of the Insanity Defense Violates Due Process,

41 J. A m. Acad. Psychiatry & L. 488 (2013) . . passim

Stephen J. Morse, Excusing the Crazy: The

Insanity Defense Reconsidered, 58 S. Cal .

L. Rev. 777 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Hinckley Verdict Tested More Than the Jury,

N.Y. Times (June 27, 1982) . . . . . . . . . . . . . . . . . . . . . 21

Daniel J. Nusbaum, Note, The Craziest Reform

of Them All: A Critical Analysis of the

Constitutional Implications of “Abolishing”

th e In sani ty Defe n se, 8 7 C o r n e l l L .

Rev. 1509 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Joe Palazzolo, John Hinckley Case Led to Vast

Narrowing of Insanity Defense, Wall St. J.

(July 27, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Marc W. Pearce & Lori J. Butts, Insanity in the State

of Idaho, 44 Monitor on Psychol. 28 (2013) . . . . 17, 18

xiii

Cited Authorities

Page

Jean K. Gilles Phillips & Rebecca E. Woodman, The

Insanity of the Mens Rea Model: Due Process

and the Abolition of the Insanity Defense,

28 Pace L. Rev. 455 (2008) . . . . . . . . . . . . . . . . . . . . . 16

Joseph H. Rodriguez, et al., The Insanity Defense

Under Siege: Legislative Assaults and Legal

Rejoinders, 14 Rutgers L.J. 397 (1983) . . . . 19, 20, 21

Marc Rosen, Insanity Denied: Abolition of

the Insanity Defense in Kansas, 8 K a n .

J.L. & Pub. Pol’y 253 (1999) . . . . . . . . . . . . . . . passim

Francis B. Say re, Mens Rea, 45 H a rv. L.

Rev. 974 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

R. Michael Shoptaw, Comment, M’Naghten Is

a Fundamental Right: Why Abolishing the

Traditional Insanity Defense Violates Due

Process, 84 Miss. L.J. 1101 (2015) . . . . . . . . . . . . . . . 18

T homas Szasz , T he Myth of M ental Illness

(1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Stua r t Taylor, Jr., The Hinckley Rid dle,

N.Y. Times (June 24, 1982) . . . . . . . . . . . . . . . . . . . . . 21

1

INTEREST OF AMICI CURIAE1

The American Civil Liberties Union (“ACLU”) is

a nationwide, nonprofit, nonpartisan organization with

almost two million members and supporters dedicated to

the principles of liberty and equality embodied in the U.S.

Constitution and our Nation’s civil rights laws. Since its

founding in 1920, the ACLU has appeared in numerous

cases before this Court involving the scope and application

of constitutional rights, including criminal justice cases,

both as direct counsel and as amicus curiae. See, e.g.,

Timbs v. Indiana, 139 S. Ct. 682 (2019); Carpenter v.

United States, 138 S. Ct. 2206 (2018); Halbert v. Michigan,

545 U.S. 605 (2005); Watts v. United States, 394 U.S. 705

(1969) (per curiam). Through its Criminal Law Reform

Project, the ACLU engages in nationwide litigation and

advocacy to reform disproportionate sentencing, reverse

the tide of over-incarceration, and protect constitutional

rights. Its Capital Punishment Project seeks to enforce

constitutional rights in capital cases. Amicus American

Civil Liberties Union Foundation of Kansas (“ACLUKS”) is an affiliate of the national ACLU, with over 9,000

members across the state. ACLU-KS has a longstanding

commitment to protecting the constitutional rights of

Kansans with mental illness in the criminal justice system.

Given amici’s longstanding commitment to protection of

the Constitution and due process, the proper resolution of

1. The parties have filed letters offering blanket consent

to the filing of amicus briefs in this case. No counsel for a party

authored this brief in whole or in part, and no such counsel or party

made a monetary contribution intended to fund the preparation or

submission of this brief. No person other than the amici curiae, or

their counsel made a monetary contribution to its preparation or

submission.

2

this case is a matter of substantial interest to the ACLU,

and its affiliates, members, activists, and supporters.

SUMMARY OF ARGUMENT

It is a long-standing tenet of our democracy—

and indeed of free societies generally—that criminal

punishment should be levied only on those who are

responsible for their crimes. The affirmative defense of

insanity, often referred to as the M’Naghten Rule, is a

key expression of this foundational principle of criminal

justice. It recognizes that in instances where mental

illness precludes an individual from understanding the

nature and quality of his acts, or distinguishing right from

wrong, the individual is not morally culpable and cannot

be found guilty of a crime.

For most of our history, every state has recognized

an insanity defense. Today, just five states—Kansas,

Alaska, Idaho, Montana, and Utah—have departed from

the norm and eliminated this defense. Kansas permits

mental illness or disability to serve as a defense to a

crime only where “the defendant . . . lacked the mental

state required as an element of the offense charged.”

K an. Stat. A nn. § 22-3220 (2009). 2 In other words, under

Kansas law, serious mental illness is relevant only where

it defeats mens rea. But even “a man who commits murder

because he feels compelled by demons still possesses the

mens rea required for murder.” United States v. Pohlot,

827 F.2d 889, 900 (3d Cir. 1987). “Only in the rare case

2. Kansas modified the phrasing of this provision during a 2011

recodification, but the substance remains the same. See K an. Stat.

A nn § 21-5209 (2013). The 2009 version applies here.

3

. . . will even a legally insane defendant actually lack the

requisite mens rea purely because of mental defect.”

Id.; see also Delling v. Idaho, 568 U.S. 1038, 1038 (2012)

(Breyer, J., dissenting).

Depriving defendants who have severe mental illness

and lack the capacity to appreciate the wrongfulness of

their actions of a defense to criminal conviction “offends . . .

principle[s] of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental,”

Clark v. Arizona, 548 U.S. 735, 748 (2006), and thus

violates the Fourteenth Amendment’s Due Process

Clause. Both historical and contemporary norms deem

punishment of such individuals unfair because they are

not morally responsible for their actions. Reflecting our

collective commitment to this enduring belief, some form

of this affirmative defense of insanity is in use today in the

overwhelming majority of states and the federal system.

Kansas’s rule likewise contravenes principles of

“fundamental human dignity,” as reflected in “objective

evidence of contemporary values,” Ford v. Wainwright,

477 U.S. 399, 406 (1986), in violation of the Eighth

Amendment’s prohibition against cruel and unusual

punishment. The Eighth Amendment prohibits penalties

that ser ve no legitimate penological purpose, yet

convicting persons whose mental disabilities prevent

them from distinguishing right from wrong (and who can

be civilly committed if dangerous) serves no penological

purpose. Kansas’s abolition of the insanity defense was,

like those of the few other states to eliminate the defense,

not a reasoned public-policy decision, but a response to

public hysteria following sensational criminal cases, such

as John Hinckley’s successful invocation of the defense for

4

his attempted assassination of President Ronald Reagan.

Moreover, the public criticisms of the defense rest entirely

on demonstrably false misconceptions. While this does

not in itself render Kansas’s choice unconstitutional,

it underscores the lack of any legitimate penological

purpose.

Finally, an insanity defense that accounts for the moral

capacity of criminal defendants is not only workable—as

evidenced by its long history and ongoing use in the vast

majority of states—but necessary. Social science studies

and data demonstrate overwhelmingly that prisons are

ill-equipped to treat people with mental illness, and that

incarcerating such individuals not only serves no valid

penological or medical purpose but actually increases the

likelihood that these persons will recidivate. And neither

permitting a mens rea defense, nor allowing evidence

of mental illness as mitigation evidence at sentencing in

capital cases, suffices to protect the rights of mentally ill

individuals. The insanity defense remains fundamental to

our system of justice. Without it, individuals who lack the

ability to appreciate the wrongfulness of their behavior

are nonetheless convicted, punished, and remitted to an

incarceration system that provides little opportunity for

treatment or rehabilitation. This Court should make clear

that the Eighth and Fourteenth Amendments guarantee

the right to assert an insanity defense.

5

ARGUMENT

I.

The Eighth and Fourteenth Amendments require

states to provide an insanity defense in criminal

prosecutions.

This Nation’s criminal justice system has long

manifested an aversion to punishing offenders for crimes

for which they are not morally responsible. See Stephen

J. Morse & Richard J. Bonnie, Abolition of the Insanity

Defense Violates Due Process, 41 J. A m. Acad. Psychiatry

& L. 488, 489–90 (2013). This concern is particularly

salient where, as here, capital punishment is at issue.

See U.S. Const. amend. VIII; Ford, 477 U.S. at 406–10.

Kansas’s abolition of the insanity defense violates both

the Fourteenth Amendment’s Due Process Clause and

the Eighth Amendment’s prohibition against cruel and

unusual punishment.

A.

The insanity defense is a fundamental element

of justice deeply rooted in our Nation’s history

and is therefore required by the Due Process

Clause.

The Due Process Clause provides heightened

protection against government interference with certain

fundamental rights, proclaiming that “[n]o state shall . . .

deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1. The

Court has defined “fundamental rights” as those “which

are, objectively, deeply rooted in this Nation’s history and

tradition, and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if they

were sacrificed.” Washington v. Glucksberg, 521 U.S. 702,

6

720–21 (1997) (citations omitted). The insanity defense

meets this test: it is so deeply rooted in our Nation’s

history that Kansas’s repeal violates the Fourteenth

Amendment’s Due Process Clause.

American and English law have embraced this defense

for centuries. See United States v. Denny-Shaffer, 2

F.3d 999, 1012 (10th Cir. 1993); see also Ford, 477 U.S.

at 406–10. A core tenet of criminal law is that those who

cannot tell right from wrong should not be criminally

punished. See Penry v. Lynaugh, 492 U.S. 302, 331–32

(1984); Morissette v. United States, 342 U.S. 246, 250–52

(1952); Davis v. United States, 160 U.S. 469, 484–85

(1895); 4 William Blackstone, Commentaries *24–25

(1769). This tradition predates even English common law:

Ancient Muslim, Hebraic, and Roman law all recognized

that mental illness can diminish or preclude culpability.

Brian E. Elkins, Idaho’s repeal of the insanity defense:

What are we trying to prove?, 31 Idaho L. Rev. 151, 161

(1994); Andrew P. March, Insanity in Alaska, 98 Geo. L. J.

1481, 1493 (2010). In twelfth-century England, people with

severe mental disabilities could receive royal pardons.

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

1004–05 (1932). The English common law also recognized

that “idiots and lunatics are not chargeable for their own

acts, if committed when under these incapacities: no, not

even for treason itself.” Ford, 477 U.S. at 406–07; see also

4 William Blackstone, Commentaries *24 (“[M]adness

alone punishes a madman.”).

This legal tradition was universally adopted in the

United States. Indeed, every state recognized the insanity

defense until the early twentieth century, Morse &

Bonnie, 41 J. A m. Acad. Psychiatry & L. at 489, and early

7

attempts to abolish the defense were held to violate state

constitutional provisions, see State v. Lange, 123 So. 639,

641 (La. 1929) (rejecting as unconstitutional a Louisiana

statute that “withdr[ew] the right of those accused of [a]

crime to urge before the courts the defense of insanity”);

Sinclair v. State, 132 So. 581, 582 (Miss. 1931) (en banc)

(holding that Mississippi act “which attempts to abolish

the defense of insanity” violated the state constitution);

State v. Strasburg, 110 P. 1020, 1023–24 (Wash. 1910)

(holding unconstitutional Washington statute that “so

circumscribe[d] inquiry touching the question of the guilt

of the accused as to exclude all consideration by the jury

of his insanity at the time of committing the act”). 3 These

rulings recognized the fundamental right of an accused

to present evidence that “he could not comprehend the

nature and quality” of his actions at the guilt-innocence

phase of trial. Strasburg, 110 P. at 1024.

As early as 1895, this Court recognized the long

tradition in this Nation of declining to hold people with

serious mental illnesses or significant mental disabilities

criminally responsible:

One who takes human life cannot be said to be

actuated by malice aforethought, or to have

deliberately intended to take life . . . unless at

the time he had sufficient mind to comprehend

the criminality or the right and wrong of such

3. Though Kansas stresses that these decisions rely on

state constitutional law, Br. of State of Kans. in Opp. to Certiorari

(“Opp.”) at 11–12, that merely reflects the fact that until Robinson v.

California, 370 U.S. 660 (1962), the Eighth Amendment had not yet

been applied to the states through incorporation. See McDonald v.

City of Chicago, 561 U.S. 742, 764 n.12 (2010); Ford, 477 U.S. at 405.

8

an act. . . . [I]n order to constitute a crime, a

person must have intelligence and capacity

enough to have a criminal intent and purpose;

and if his reason and mental powers are either

so deficient that he has no will, no conscience,

or controlling mental power, or if, through the

overwhelming violence of mental disease, his

intellectual power is for the time obliterated,

he is not a responsible moral agent, and is not

punishable for criminal acts. Neither in the

adjudged cases nor in the elemental treatises

upon criminal law is there to be found any

dissent from these general propositions.

Davis, 160 U.S. at 485 (emphasis added) (internal quotation

marks omitted) (citations omitted).

State supreme courts have consistently recognized

that the insanity defense is so deeply rooted in the

American system of justice as to be required by the

Fourteenth Amendment. See, e.g., Finger v. State, 27 P.3d

66, 84 (Nev. 2001) (“[L]egal insanity is a well-established

and fundamental principal of the law of the United

States.”); People v. Skinner, 704 P.2d 752, 757–59 (Cal.

1985) (“[T]he insanity defense reflects a fundamental legal

principle common to the jurisprudence of this country

and to the common law of England.”); State v. Hoffman,

328 N.W.2d 709, 716 (Minn. 1982) (“[T]he presentation

of evidence of mental illness is a right of constitutional

dimension.”); State ex rel. Causey, 363 So.2d 472, 474–75

(La. 1978) (“The insanity defense, and the underlying

notion that an accused must understand the nature of

his acts in order to be criminally responsible . . . are

deeply rooted in our legal tradition and philosophy.”);

9

Ingles v. People, 22 P.2d 1109, 1111 (Colo. 1933) (“A

statute providing that insanity shall be no defense to a

criminal charge would be unconstitutional.”); Sinclair,

132 So. at 581–82 (McGowen, J., specially concurring)

(“So closely has the idea of insanity been woven into the

criminal jurisprudence of English speaking countries that

it has become a part of the fundamental laws thereof.”);

Strasburg, 110 P. at 1024 (“Whatever the power may

be in the Legislature to eliminate the element of intent

from criminal liability, we are of the opinion that such

power cannot be exercised to the extent of preventing one

accused of crime from invoking the defense of his insanity

at the time of committing the act charged, and offering

evidence thereof before the jury.”).

Today, a national consensus of forty-five states and

the federal government recognize this defense. Elizabeth

Bennion, Death is Different No Longer: Abolishing the

Insanity Defense is Cruel and Unusual Under Graham v.

Florida, 61 DePaul L. Rev. 1, 42 (2011); see Clark, 548 U.S.

at 750–51 (discussing various tests for insanity).4 Thus, the

defense aligns not only with our historical traditions but

with our contemporary values as well. See Ford, 477 U.S.

at 408–09; Stephan M. LeBlanc, Cruelty to the Mentally

4. Such a consensus is more than sufficient to mark the outliers

as unconstitutional. By way of comparison, this Court deemed state

practices far less widespread to be evidence of a national consensus

on contemporary values in Atkins, Roper, and Graham. See Atkins

v. Virginia, 536 U.S. 304, 313–15 (2002) (thirty states prohibited

execution of “mentally retarded” offenders); Roper v. Simmons, 543

U.S. 551, 564 (2004) (thirty states prohibited the death penalty for

juveniles); Graham v. Florida, 560 U.S. 48, 62 (2010) (finding national

consensus even though only thirteen states barred sentences of life

imprisonment without parole for juvenile nonhomicide offenders).

10

Ill: An Eighth Amendment Challenge to the Abolition of

the Insanity Defense, 56 A m. U. L. Rev. 1281, 1311 (2007).

This overwhelming national consensus demonstrates

that the right to a defense due to serious mental illness

or disability is “deeply rooted in this Nation’s history

and tradition” and “implicit in the concept of ordered

liberty.” Glucksberg, 521 U.S. at 721; see also Atkins, 536

U.S. at 312 (“[T]he clearest and most reliable objective

evidence of contemporary values is the legislation enacted

by the country’s legislatures.” (internal quotation marks

omitted)).

B. Abolishing the insanity defense serves no

legitimate penological purpose and violates

the Eighth Amendment.

This Court has held that “[a] sentence lacking any

legitimate penological justification is by its nature

disproportionate to the offense,” in violation of the Eighth

Amendment. Graham v. Florida, 560 U.S. 48, 71 (2010).

The Nation’s collective wisdom that an insanity defense is

implicit in our sense of liberty and justice is grounded in

the recognition that punishing people with severe mental

illness or disability does not “measurably contribute[]” to

any legitimate penological purpose, including retribution,

deterrence, rehabilitation, or incapacitation—particularly

given the ability, through civil commitment, to detain

those whose mental illness poses a danger to themselves

or others. Atkins, 536 U.S. at 319–20; see also Ewing v.

California, 538 U.S. 11, 25 (2003). The criminal acts of

defendants found to be legally insane arise from a lack of

understanding produced by severe mental disability, and

thus do not reflect culpability in any meaningful sense. To

convict such people offends our sense of justice.

11

First, no retributive purpose is served, because one

who cannot distinguish between right and wrong cannot

be morally culpable. See Tison v. Arizona, 481 U.S. 137,

149 (1987) (“[A] criminal sentence must be directly related

to the personal culpability of the criminal offender.”).

Retribution as a penological goal “reflects society’s and

the victim’s interests in seeing that the offender is repaid

for the hurt he caused.” Kennedy v. Louisiana, 554

U.S. 407, 442 (2008). While retribution is a legitimate

reason to punish, it serves no legitimate purpose when

unmoored from culpability. See Graham, 560 U.S. at

71–72. The Supreme Court has recognized that the case

for retribution is less compelling for defendants who have

“diminished moral responsibility.” Id. at 72 (explaining

that retribution is an insufficient rationale for imposing life

imprisonment on juveniles, who lack “maturity and [have]

an underdeveloped sense of responsibility”); see Hall v.

Florida, 572 U.S. 701, 709 (2014) (noting that when “moral

culpability” is diminished, “the retributive value of the

punishment” diminishes as well). So too, retribution is an

insufficient justification for the punishment of individuals

who by reason of serious mental illness or mental disability

lack the moral capacity necessary to be held responsible

for their actions. See State v. Herrera, 895 P.2d 359, 378

(Utah 1995) (Stewart, J., dissenting); A m. Psychiatric

A ss’n, Position Statement on the Insanity Defense (Nov.

2014), https://www.psychiatry.org/File%20Library/AboutAPA/Organization-Documents-Policies/Policies/Position2014-Insanity-Defense.pdf.

Second, criminal sanctions cannot deter people with

serious mental illness or mental disabilities because

the “rules of law and morality cannot adequately guide

them.” Morse & Bonnie, 41 J. A m. Acad. Psychiatry &

12

L. at 489; see also Timothy S. Hall, Legal Fictions and

Moral Reasoning: Capital Punishment and the Mentally

Retarded Defendant After Penry v. Johnson, 35 A kron L.

Rev. 327, 331 (2002). Indeed, mentally ill people are more

likely to have multiple previous incarcerations than their

counterparts without metal illness. See Doris J. James &

Lauren E. Glaze, U.S. Dep’t of Justice, Mental Health

Problems of Prison and Jail Inmates 1 (2006), https://

www.bjs.gov/content/pub/pdf/mhppji.pdf. People without

serious mental illness are not likely to be deterred because

they are unlikely to identify with mentally ill people. Julie

E. Grachek, Note, The Insanity Defense in the TwentyFirst Century: How Recent Supreme Court Case Law Can

Improve the System, 81 Ind. L.J. 1479, 1482 (2006). Indeed,

allowing our legal system to refuse to acknowledge the

critical moral salience of understanding right from wrong

would likely undermine deterrence.

Third, rehabilitation is not served by imposing

criminal sanctions on individuals who lack the capacity to

apprehend their own responsibility. Those whose mental

illness poses a danger to others can be civilly committed

and treated without recourse to criminal sanctions. There

is no reason to believe that imposing a criminal penalty on

an individual who is unable to appreciate the difference

between right and wrong will serve any rehabilitative

purpose. Any rehabilitative interest would be better

served by providing the mental health services that the

individual needs in an appropriate setting, not by placing

them in prisons ill-equipped to treat such persons. As

Senator Thomas Dodd explained in 1966, sending mentally

ill individuals to prison, where they cannot be effectively

treated, may result in such individuals “com[ing] back to

haunt society after their release, more mentally disturbed,

13

more irresponsible, and more crime prone than ever

before, because whatever the prison does to men it does

not cure mental illness.” United States v. Freeman, 357

F.2d 606, 626 n.61 (2d Cir. 1966) (quoting 112 Cong. Rec.

2853–56 (1966)); see also Bennion, 61 DePaul L. Rev. at

37–38; Jodie English, The Light Between Twilight and

Dusk: Federal Criminal Law and the Volitional Insanity

Defense, 40 Hastings L.J. 1, 25 (1988); Jessica Harrison,

Comment, Idaho’s Abolition of the Insanity Defense—An

Ineffective, Costly, and Unconstitutional Eradication, 51

Idaho L. Rev. 575, 594–95 (2015).

Numerous studies have documented that incarcerating

people with mental illness only stalls rehabilitation because

prisons are “anti-therapeutic” environments where people

with mental illness do not receive the treatment they

need to be effectively rehabilitated. Grachek, 81 Ind. L.J.

at 1489 (detailing how mentally ill people rarely receive

rehabilitative treatment, are often targets of abuse, and

often serve longer sentences than those without mental

illness); Jennifer Bronson & M arcus Berzofsky, U.S.

Dep’t of Justice, Indicators of Mental Health Problems

Reported by Prisoners and Jail Inmates 2011–12 (June

2017), https://www.bjs.gov/content/pub/pdf/imhprpji1112.

pdf (survey finding that only half of prisoners who met

the threshold for serious psychology distress had received

mental health treatment since admission to their current

jail or prison). People with mental health disabilities who

are criminally punished and imprisoned are thus “unlikely

to be rehabilitated and more likely to return to prison upon

release.” See Harrison, 51 Idaho L. Rev. at 595.

Fourth, punishing and imprisoning people with

serious mental illness cannot further the state’s interest

14

in incapacitation any more than can civil commitment.

LeBlanc, 56 A m. U. L. Rev. at 1321. Moreover, incarceration

can expose people with mental illness to harsh prison

conditions that may exacerbate their condition, increasing

the likelihood of recidivism. Id.; see also James & Glaze,

Mental Health Problems of Prison and Jail Inmates 1.

There is simply no reason to believe that civil commitment

regimes are inadequate to protect public safety. See

Clark, 548 U.S. at 798 (Kennedy, J., dissenting) (“Future

dangerousness is not . . . a rational basis for convicting

mentally ill individuals. . . . Civil commitment proceedings

can ensure that individuals who present a danger to

themselves or others receive proper treatment without

unfairly treating them as criminals.”); Jones v. United

States, 463 U.S. 354, 370 (1983); Morse & Bonnie, 41 J.

A m. Acad. Psychiatry & L. at 492.

Accordingly, depriving people whose mental illness is

so severe that they meet the definition of being “legally

insane,” and penalizing them in the same manner as

those without severe mental illness, serves no legitimate

penological purpose. As such, it is disproportionate and

violative of the Eighth and Fourteenth Amendments. See

Graham, 560 U.S at 71.

II. The outlier statutes that abolished the insanity

defense were largely a reaction to John Hinckley’s

use of the defense and lacked any legitimate

penological justification.

As explained above, the insanity defense is a longstanding principle at the core of our Nation’s criminal

law. Efforts to repeal it are rare and relatively recent,

especially when considered against the backdrop of its long

15

history in the Anglo-American system of justice. Every

state and the federal government recognized some form

of this defense until the late twentieth century. See Morse

& Bonnie, 41 J. A m. Acad. Psychiatry & L. at 489. There

were a few unsuccessful efforts to roll back the defense

in the early twentieth century in Louisiana, Mississippi,

and Washington, but those efforts were rejected as

unconstitutional, precisely because the notion that one

cannot be held culpable if one lacks the capacity to make

such judgments is fundamental to the American system

of justice. See Sinclair, 132 So. at 584–87 (Ethridge, J.,

concurring); Lange, 123 So. at 641–42; Strasburg, 110 P.

at 1024.

During much of the twentieth century, legal scholars

and mental health professionals advocated for expansion,

not elimination, of the insanity defense. See Finger, 27 P.3d

at 73. Many maintained that the traditional M’Naghten

Rule was too limited and resulted in improper criminal

convictions of defendants with severe mental illnesses. Id.

Accordingly, courts began to develop new standards for

legal insanity, such as the irresistible impulse test and the

mental disease or defect test, to supplement or supplant

the M’Naghten Rule. See Durham v. United States, 214

F.2d 862, 869, 875 (D.C. Cir. 1954); Smith v. United States,

36 F.2d 548, 550 (D.C. Cir. 1929). This “trend to expand

the definition of legal insanity continued into the early

1980s.” Finger, 27 P.3d at 74.

Signs of a backlash first came in 1979, when Montana

became the first state to repeal the insanity defense,

replacing it with the rule that evidence of insanity is only

“admissible to prove that the defendant did or did not

have a state of mind that is an element of the offense”—

16

essentially the same rule that Kansas has adopted. Mont.

Code A nn. § 46-14-102 (2015); see also Jean K. Gilles

Phillips & Rebecca E. Woodman, The Insanity of the

Mens Rea Model: Due Process and the Abolition of the

Insanity Defense, 28 Pace L. Rev. 455, 460 (2008) (likening

Montana’s statute to Kansas’s). State legislators sought to

remove medical professionals, who were thought to make

“arbitrary and God-like” judgments about defendants,

from the criminal justice system. Jeanne Matthews

Bender, After Abolition: The Present State of the Insanity

Defense in Montana, 45 Mont. L. Rev. 133, 137 & n.30

(1984). The Montana legislator who introduced the bill

was reportedly influenced by the work of Thomas Szasz, a

psychiatrist who propounded the extreme view that “there

is and can be no such thing as mental illness or psychiatric

treatment.” Id. at 137 n.30 (quoting Thomas Szasz, The

Myth of Mental Illness xii (1974)).

In the early 1980s, a number of other states moved

to restrict the insanity defense after John W. Hinckley,

Jr. attempted to assassinate President Ronald Reagan,

apparently to impress actress Jodie Foster, with whom

Hinckley was obsessed. See March, 98 Geo L.J. at 1495. In

1982, after a widely publicized trial, a jury found Hinckley

not guilty by reason of insanity (after which Hinckley was

civilly committed for decades). See Phillip E. Johnson,

Madness and the Criminal Law (Book Review), 50 U.

Chi. L. Rev. 1534, 1536 (1983); Vincent J. Fuller, United

States v. John W. Hinckley Jr. (1982), 33 Loy. L.A. L.

Rev. 699, 700 (2000). Hinckley’s acquittal set off efforts

to eliminate the insanity defense. See Elkins, 31 Idaho L.

Rev. at 154–55; Joe Palazzolo, John Hinckley Case Led to

Vast Narrowing of Insanity Defense, Wall St. J. (July 27,

2016), https://www.wsj.com/articles/john-hinckley-caseled-to-vast-narrowing-of-insanity-defense-1469663770.

17

In 1982, less than a year following the Hinckley

verdict, Alaska “reacted” to the verdict by “narrowing”

the insanity defense. See Leslie A. Leatherwood, Note,

Sanity in Alaska: A Constitutional Assessment of the

Insanity Defense Statute, 10 A lask a L. R ev. 65, 66

(1993). 5 Idaho also abolished the insanity defense in

1982, “responding to the . . . political climate” after the

Hinckley verdict. Elkins, 31 Idaho L. Rev. at 154–55; see

Marc W. Pearce & Lori J. Butts, Insanity in the State of

Idaho, 44 Monitor on Psychol. 28, 28 (2013), http://www.

apamonitor-digital.‌org/‌apamonitor/‌201302?pg=30#pg30.

Utah “abolished the traditional insanity defense” in 1983,

again as a result of “public outrage” over the Hinckley

verdict. Herrera, 895 P.2d at 361; see State v. Young, 853

P.2d 327, 383 (Utah 1993).

In the mid-1990s, Nevada and Kansas also passed

laws barring defendants from asserting that they should

not be held criminally responsible because of a severe

mental illness. See Finger, 27 P.3d at 75–76; Marc Rosen,

Insanity Denied: Abolition of the Insanity Defense in

Kansas, 8 K an. J.L. & Pub. Pol’y 253, 256–57 (1999).

The Nevada Supreme Court overturned the legislature’s

attempt to abolish the insanity defense, concluding that

the defense “is a fundamental principle under the Due

Process Clause.” Finger, 27 P.3d at 80.

Today, Kansas, Alaska, Utah, Idaho, and Montana

are the only states in the Nation to preclude criminal

5. Alaska’s response was also partially informed by the case of

Charles Meach, who murdered four teenagers while on release from

the Alaska Psychiatric Institute. See Leatherwood, 10 A laska L.

Rev. at 66. The revised defense in Alaska eliminates the possibility of

“exoneration based on the defendant’s ability to distinguish between

right and wrong.” Id. at 68.

18

defendants from asserting a traditional insanity defense.

See R. Michael Shoptaw, Comment, M’Naghten Is a

Fundamental Right: Why Abolishing the Traditional

Insanity Defense Violates Due Process, 84 Miss. L.J. 1101,

1107 (2015). A defendant in these five states may introduce

evidence of a mental illness or disability only to the extent

that it would disprove that the defendant had the requisite

mens rea to commit the offense charged. Herrera, 895

P.2d at 361–62; State v. Doney, 636 P.2d 1377, 1382 (Mont.

1981); March, 98 Geo. L.J. at 1509; Pearce & Butts, 44

Monitor on Psychol. at 28; Rosen, 8 K an. J.L. & Pub.

Pol’y at 257. As this history illustrates, the development

was driven not by legitimate state interests or penological

principles but largely by popular anger about the Hinckley

verdict. While this does not by itself render elimination of

the defense unconstitutional, it underscores the absence

of any legitimate penological purpose for punishing those

who lack the capacity to distinguish right from wrong.

III. Objections to the insanity defense rest on

misconceptions about its use and impact.

Criticism of the insanity defense tends to rest on

one or more of four misconceptions about the defense: (1)

that it is overused; (2) that severe mental illness is easily

faked; (3) that verdicts of not guilty by reason of insanity

result in dangerous individuals being released into society

to commit further crimes; and (4) that a constitutionally

mandated insanity defense is somehow unworkable. Each

of these views is contradicted by the evidence of how the

defense is used and its impact on public safety.

19

A.

The insanity defense is not overused.

Despite widespread public perception that it is

overused, the insanity defense is rarely asserted. Judge

Rubin of the U.S. Court of Appeals for the Fifth Circuit

observed in 1984 that empirical studies of the insanity

defense “provide little or no support for [the public’s]

fearsome perceptions and in many respects directly

refute them.” United States v. Lyons, 739 F.2d 994, 995

(5th Cir. 1984) (Rubin, J., dissenting). Indeed, the public

vastly overestimates the number of insanity pleas, often

by orders of magnitude. See John Q. La Fond & Mary L.

Durham, Cognitive Dissonance: Have Insanity Defense

and Civil Commitment Reforms Made a Difference?, 39

Vill. L. Rev. 71, 93 n.104 (1994) (summarizing studies).

For example, one study showed the public expected the

defense to be invoked in “20% to 50% of all criminal cases,”

even though the study found the defense is in fact invoked

in just 1% of felony cases. Rosen, 8 K an. J.L. & Pub. Pol’y

at 258; see also Beatrice R. Maidman, Note, The Legal

Insanity Defense: Transforming the Legal Theory into

a Medical Standard, 96 B.U. L. Rev. 1831, 1846 (2016).

State legislators share this misconception. Joseph H.

Rodriguez, et al., The Insanity Defense Under Siege:

Legislative Assaults and Legal Rejoinders, 14 Rutgers

L.J. 397, 401 n.23 (1983) (state legislators estimated 4,400

pleas of insanity, when only 102 such pleas were actually

entered); see also Lisa A. Callahan, et al., The Volume and

Characteristics of Insanity Defense Pleas: An Eight-State

Study, 19 Bull. A m. Acad. Psychiatry L. 331, 334 (1991)

(finding that insanity plea was raised in 0.93% of all felony

cases); Jeffrey S. Janofsky, et al., Defendants Pleading

Insanity: An Analysis of Outcome, 17 Bull. A m. Acad.

Psychiatry L. 203, 205–06 (1989) (only 1.2% of criminal

defendants in one-year study invoked insanity plea).

20

B. Defendants do not fake insanity.

The misplaced concern that the insanity defense

is overused is closely linked to another common

misperception—that severe mental illness is easy to fake.

Rosen, 8 K an. J.L. & Pub. Pol’y at 259. In fact, insanity is

rarely even a contested issue in the few cases where the

plea is raised. “[M]ore than ninety percent” of insanity

cases “result in agreement by psychiatrists for both sides

as to the defendant’s sanity.” Ira Mickenberg, A Pleasant

Surprise: The Guilty but Mentally Ill Verdict Has Both

Succeeded in Its Own Right and Successfully Preserved

the Traditional Role of the Insanity Defense, 55 U. Cin. L.

Rev. 943, 969 (1987). And any attempt to “fake” insanity

comes at a high cost. Defendants who unsuccessfully

assert the insanity defense at trial often receive longer

sentences than those who do not. See Jeraldine Braff, et

al., Detention Patterns of Successful and Unsuccessful

Insanity Defendants, 21 Criminology 439, 445 (1983)

(defendants who invoked insanity defense unsuccessfully

served 22% more time in detention than those who did not

plead insanity); Rodriguez, 14 Rutgers L.J. at 401–02 &

n.23 (mean maximum sentences “practically double[d]”

after unsuccessful insanity pleas). Thus, there is no

reason to believe that there is any meaningful risk that

defendants will “fake” insanity.

C.

The insanity defense does not result in the

release of dangerous criminals into society.

The result of a verdict of not guilty by reason of

insanity is widely misunderstood. Many believe the

insanity defense allows dangerous individuals to go free.

Rosen, 8 K an. J.L. & Pub. Pol’y at 258–59. This common

21

misconception took hold after the Hinckley verdict,

with the New York Times describing a “widespread

suspicion” that the defense meant “people cannot be held

responsible for even the most bizarre and heinous crimes.”

Stuart Taylor, Jr., The Hinckley Riddle, N.Y. T imes

(June 24, 1982) at D21. Individuals at the highest levels

of government echoed these claims; for example, thenAttorney General William French Smith II asserted that

the insanity defense “allows so many persons to commit

crimes of violence . . . and then have the door opened for

them to return to the society they victimized.” Rosen, 8

K an. J.L. & Pub. Pol’y at 256.

But as this Court has held, the Constitution permits

states to hold individuals found criminally insane in

involuntary hospitalization “until such time as [they have]

regained . . . sanity” or no longer present a danger to

themselves or society. Jones, 463 U.S. at 370. Individuals

found not guilty by reason of insanity often spend as much

or more time in custody as their peers who were found

guilty without an insanity defense. (Indeed, this may help

explain why the defense is so rarely invoked.) See Fond &

Durham, 39 Vill. L. Rev. at 95–96; Maidman, 96 B.U. L.

Rev. at 1846–47; Mickenberg, 55 U. Cin. L. Rev. at 967,

972–84; Rodriguez, 14 Rutgers L.J. at 402–04; Rosen, 8

K an. J.L. & Pub Pol’y at 259. For example, although some

speculated after the Hinckley verdict that he might be

released “within months,” Hinckley Verdict Tested More

Than the Jury, N.Y. Times (June 27, 1982), https://www.

nytimes.com/1982/06/27/weekinreview/hinkley-verdicttested-more-than-the-jury.html, in fact he was held in

involuntary commitment for thirty-five years, Gardiner

Harris, John Hinckley, Who Tried to Kill Reagan, Will Be

Released, N.Y. Times (July 27, 2016), https://www.nytimes.

22

com/2016/07/28/us/hinckley-who-tried-to-kill-reagan-tobe-released.html. When Hinckley was eventually released,

it was with a set of strict monitoring requirements, similar

to traditional supervised release. See United States v.

Hinckley, 200 F. Supp. 3d 1, 63–70 (D.D.C. 2016); 18 U.S.C.

§ 3583. To this day, Hinckley must carry a GPS-enabled

phone traceable by the government and must strictly limit

his interactions with the public. See Spencer S. Hsu, U.S.

Judge Eases Release Conditions for Would-Be Reagan

Assassin John W. Hinckley Jr., Wash. Post (Nov. 16, 2018),

https://www.washingtonpost.com/local/public-safety/

john-hinckley-jr-release-conditions-eased-by-us-judge35-years-after-reagan-assassination-attempt/2018/11/16/

c00aa472-e9c7-11e8-b8dc-66cca409c180_story.html?utm_

term=.23bca16085de.

Thus, there is no basis to the popular misconception

that the insanity defense sets dangerous individuals free

to prey on others.

D.

A constitutionally mandated insanity defense

is plainly administrable, as evidenced by its

lengthy history.

Some critics of the insanity defense have suggested

that a constitutional right to the defense would be

unworkable. See Stephen J. Morse, Excusing the Crazy:

The Insanity Defense Reconsidered, 58 S. Cal. L. Rev.

777, 800 (1985). But that claim is contradicted by the

defense’s long history in this country and elsewhere, as

well as by its recognition in the overwhelming majority

of the states.

As explained, the modern insanity defense traces its

roots to English common law, see Ford, 477 U.S. at 406–07,

23

and forty-five of the fifty states presently use either the

M’Naghten or Model Penal code test for insanity—both

of which recognize moral incapacity as a defense. See

LeBlanc, 56 A m. U. L. Rev. at 1312–13 n.190. Moreover, as

noted above, see Sec. I.A., several states not only permit

the insanity defense as a matter of policy, but explicitly

recognize a constitutional right to such a defense.

To the extent Kansas suggests that outlining the

contours of such a right would be unworkable, see Opp.

at 14–17, the experiences of these states demonstrate

otherwise. Moreover, this Court has often established

constitutional minimum requirements, while leaving

the details of implementing such requirements to the

states. See, e.g., Atkins, 536 U.S. at 317 (“[W]e leave

to the States the task of developing appropriate ways

to enforce the constitutional restriction upon [their]

execution of sentences.” (quoting Ford, 477 U.S. at 416)).

That individual states adopt different insanity tests does

not weaken the case that provision of an insanity defense

is a constitutional right. See Dora W. Klein, Memoir as

Witness to Mental Illness, 43 L. & Psychol. Rev. 133, 141–

142 (2019) (“Although the precise, technical differences

among the various tests of insanity can be philosophically

interesting, it is unclear whether these differences have

a meaningful effect on a defendant’s likelihood of being

found not guilty by reason of insanity. Some research

suggests that jurors regard any insanity test as essentially

a test of fitness for moral (and legal) responsibility.”). And

while lawyers and medical professionals have sometimes

disagreed about how to articulate the legal standard

so that it is understandable to a jury, this concern can

be and is addressed by states through standard jury

instructions. See State v. Johnson, 399 A.2d 469, 476 (R.I.

24

1979) (adopting ALI “substantial” capacity test because

“the test employs vocabulary sufficiently in the common

ken that its use at trial will permit a reasonable three-way

dialogue between the law-trained judges and lawyers, the

medical-trained experts, and the jury”).

Moreover, the insanity defenses used in forty-five

states are no more difficult to administer than is a mens

rea defense. See Rita D. Buitendorp, Note, A Statutory

Lesson from “Big Sky Country” on Abolishing the Insanity

Defense, 30 Val. U. L. Rev. 965, 980 & n.95 (1996) (arguing

mens rea test “reveals little about when defendants have

sufficient evidence that they are not responsible for their

conduct” and noting that, when Montana abolished the

insanity defense, its attorney general “initially opposed

the mens rea bill for the very reason that . . . no guidelines

or workable set of rules existed for the new type of law”).

The very same challenges present in delineating the

contours of sanity are present with respect to any mens

rea requirement: “both mens rea and legal insanity refer

to past mental states that must be inferred from the

defendant’s actions, including utterances.” Morse, 58 S.

Cal. L. Rev. at 800.

Given the scarcity of insanity pleas in practice, the

long-standing history of the defense, and its continuing

existence in all but five states, there is no indication that

this Court’s recognition of a constitutional right will

overwhelm the criminal justice system. Callahan, 19

Bull. A m. Acad. Psychiatry Law at 331 (finding that the

insanity defense is used in fewer than 1% of all cases, and

only about a quarter of those cases are successful). This

Court’s recognition of a constitutionally mandated insanity

defense would simply require Kansas, and the remaining

25

four states lacking such a defense, to conform their laws

to those which have governed everywhere else across this

Nation since the founding.

IV. Neither mens rea nor the ability to present mentalstate evidence at the penalty phase of a capital case

is an adequate substitute for an insanity defense.

That Kansas permits the consideration of psychiatric

evidence as it relates to mens rea, and, in capital cases,

during the sentencing phase of the trial, is no substitute

for an insanity defense.

As explained above, the mens rea approach adopted

by Kansas and four other states permits the punishment

of individuals who lack capacity to understand the

wrongfulness of their actions. A man who kills his

daughter believing she is possessed by the devil, see

Rosen, 8 K an. J. L. & Pub. Pol’y at 261–62, cannot be

described as having a normal capacity to “choose between

good and evil,” Morissette, 342 U.S. at 250. Yet so long as

that man acted with intent to kill, he had sufficient mens

rea. These exact concerns led Congress to decide against

eliminating the federal insanity defense in the 1980s,

recognizing that doing so “would alter that fundamental

basis of Anglo-American criminal law: the existence

of moral culpability as a prerequisite for punishment.”

Pohlot, 827 F.2d at 900 (quoting H.R. Rep. No. 98–577,

at 7–8 (1983)).

The mens rea standard thus excludes a high

proportion of defendants who might otherwise meet the

legal definition of insanity. See id. (“Only in the rare case,

however, will even a legally insane defendant actually lack

26

the requisite mens rea purely because of mental defect.”).

The colorful examples courts often use to illustrate the

mens rea approach obscure the fact that this approach

simply does not capture the defense that legal insanity

does, and therefore mens rea is virtually never defeated

based on insanity. See Daniel J. Nusbaum, Note, 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) (noting 1% acquittal rate among individuals

raising mens rea defense based on insanity in Montana);

Harv. L. Rev. Ass’n, Idaho Supreme Court Upholds

Abolition of Insanity Defense Against State and Federal

Constitutional Challenges, 104 Harv. L. Rev. 1132, 1135

(1991) (“[E]xamples of total cognitive disability . . . appear

more often as academic hypotheticals than as real-world

cases.”).6

Kansas suggests that the mens rea approach is an

unremarkable replacement for the insanity defense, since

it simply “channels” evidence of insanity to the mental

state requirement. See Opp. 8–9. But this argument elides

the well-recognized distinction between mens rea and the

affirmative defense of insanity. See Mullaney v. Wilbur,

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

(noting that “the existence or nonexistence of legal

insanity bears no necessary relationship to the existence

or nonexistence of the required mental elements of the

6. Courts have suggested, for example, that the mens rea

defense would vindicate the strangler who thinks he is only squeezing

a lemon, Finger, 27 P.3d at 75; or a grapefruit, Herrera, 895 P.2d at

362; the shooter who thinks he is hunting a wolf, Delling, 568 U.S.

at 1038 (Breyer, J., dissenting); or the man who kills a blond man,

thinking “all blond people are robots,” Clark, 548 U.S. at 767–68.

27

crime”); Insanity Defense in Federal Courts, Hearings

Before the Subcomm. on Criminal Justice, H. Judiciary

Comm., 97th Cong. (statement of Bruce Ennis, former

national legal director of the ACLU) (describing mens

rea and the affirmative defense as “two quite different

ways . . . in which a defendant’s mental condition could

be relevant”).

Nor is it sufficient to consider mental illness at the

sentencing stage of a capital trial.7 Kansas permits this,

as it must given this Court’s direction, that defendants

must be able to submit any evidence relevant to mitigation

at sentencing. See Payne v. Tennessee, 501 U.S. 808, 822

(1991) (“[V]irtually no limits are placed on the relevant

mitigating evidence a capital defendant may introduce

. . . .”); McKoy v. North Carolina, 494 U.S. 433, 442 (1990)

(“The Constitution requires states to allow consideration

of mitigating evidence in capital cases.”). But by then

it is too late. To convict a person for murder who does

not even have the capacity to know that he committed a

culpable act is unconstitutional, whether the penalty is

life, death, or a term of years. That fundamental wrong

cannot be remedied at the back end through sentencing

considerations.

In addition, “reliance on mental retardation as a

mitigating factor can be a two-edged sword that may

enhance the likelihood that the aggravating factor of

future dangerousness will be found by the jury.” Atkins,

536 U.S. at 321. Consideration solely at the sentencing

7. Four of the five states that have fully abolished the insanity

defense—Kansas, Utah, Montana, and Idaho—still impose the death

penalty. See Clark, 548 U.S. at 750–51.

28

phase fails to acknowledge that mental illness can negate

culpability itself. Indeed, jurors often view evidence of

mental illness in sentencing proceedings as aggravating—

not mitigating. Ellen Fels Berkman, Note, Mental Illness

as an Aggravating Circumstance in Capital Sentencing,

89 Colum. L. Rev. 291, 291 (1999). Thus, mentally ill

persons in fact often serve longer sentences than others

convicted of the same crime. See Erika Eichelberger,

Alaska may abandon criminal verdict behind longer

sentences for mentally ill, The Guardian (Apr. 4, 2016),

https://w w w.theguardian.com/us-news/2016/apr/04/

alaska-guilty-verdict-mentally-ill.

Even if evidence about mental illness is admissible for

sentencing purposes, it is well documented that jurors in

capital cases often make up their minds about punishment

during the guilt phase of trial. See State v. Kahler, 410

P.3d 105, 136 (Kan. 2018) (Johnson, J., dissenting) (raising

concerns that abolishing insanity defense undermines “the

reliability of the jury’s determination to impose the death

penalty”). A 1998 study, based on interviews of 916 capital

jurors in eleven states, found that “many jurors reached

a personal decision concerning punishment before the

sentencing stage of the trial, before hearing the evidence

or arguments concerning the appropriate punishment, and

before the judge’s instructions for making the sentencing

decision.” William J. Bowers, Marla Sandys & Benjamin

Steiner, Foreclosed Impartiality in Capital Sentencing:

Jurors’ Predispositions, Guilt-Trial Experience, and

Premature Decision-Making, 83 Cornell L. Rev. 1476,

1477 (1998). It is thus crucial that criminal defendants have

an opportunity to present evidence of insanity before the

sentencing phase.

29

Use of this evidence during sentencing is also subject

to judicial discretion—its admission is not guaranteed.

Morse & Bonnie, 41 J. A m. Acad. Psychiatry & L. at

493. Without the guarantee of an insanity defense,

people with mental illness and mental disabilities will be

penalized even where their illness precludes culpability,

and sentences will not be “tailored to . . . personal

responsibility and moral guilt.” Enmund v. Florida, 458

U.S. 782, 801 (1982); see also Weems v. United States, 217

U.S. 349, 367 (1910) (“[P]unishment for crime should be

graduated and proportioned to offense.”). When people

with severe mental illness face criminal punishment,

especially the death penalty, states must recognize

the right to an insanity defense under the Eighth and

Fourteenth Amendments.

30

CONCLUSION

The judgment of the Supreme Court of Kansas should

be reversed.

Dated: June 7, 2019

New York, NY

Lauren Bonds

ACLU Foundation of K ansas

6701 West 64th Street, Suite 210

Overland Park, KS 66202

(913) 490-4100

Attorney for Amicus Curiae

the ACLU Foundation

of Kansas

Respectfully submitted,

Caitlin Halligan

Counsel of Record

Jessica E. Underwood

Ryan W. A llison

Selendy & Gay PLLC

1290 Avenue of the Americas

New York, NY 10104

(212) 390-9000

challigan@selendygay.com

- and David Cole

A merican Civil Liberties

Union Foundation

915 15th Street NW

Washington, DC 20005

(202) 457-0800

- and Cassandra Stubbs

A merican Civil Liberties

Union Foundation

Capital Punishment Project

201 West Main Street,

Suite 402

Durham, NC 27701

(919) 682-5659

Attorneys for Amicus

Curiae the American Civil

Liberties Union