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

Supreme Court briefAug 2, 2019

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No. 18-6135

In the Supreme Court of the United States

__________________

JAMES KRAIG KAHLER,

Petitioner,

STATE OF KANSAS,

Respondent.

__________________

On Writ of Certiorari to the

Supreme Court of the State of Kansas

__________________

BRIEF FOR THE RESPONDENT

__________________

DEREK SCHMIDT

Attorney General of Kansas

JEFFREY A. CHANAY

Chief Deputy Attorney

General

TOBY CROUSE

Solicitor General of Kansas

(Counsel of Record)

KRISTAFER AILSLIEGER

BRANT M. LAUE

Deputy Solicitors General

DWIGHT R. CARSWELL

NATALIE CHALMERS

RACHEL L. PICKERING

Assistant Solicitors General

120 S.W. 10th Ave.

2nd Floor

Topeka, KS 66612

(785) 296-2215

toby.crouse@ag.ks.gov

Counsel for Respondent State of Kansas

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTION PRESENTED

Whether Kansas’s mens rea approach to insanity

violates the Eighth or Fourteenth Amendments.

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

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

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 1

A. Factual Background. . . . . . . . . . . . . . . . . . 2

B. Kansas’s Mens Rea Approach to Insanity . 7

C. Proceedings Below . . . . . . . . . . . . . . . . . . . 9

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . 14

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Kansas’s Mens Rea Approach to Insanity

Does Not Violate the Due Process Clause. . . 18

A. The right-and-wrong insanity test is not

deeply rooted in our history and

traditions. . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. As this Court has previously recognized,

the Due Process Clause does not mandate

a particular insanity test. . . . . . . . . . . . . 37

C. Kansas has reasonably determined that

individuals who voluntarily and

intentionally commit a crime are

blameworthy, even if they do not believe

their actions are wrong. . . . . . . . . . . . . . . 40

iii

II.

Kansas’s Mens Rea Approach to Insanity

Does Not Violate the Eighth Amendment.. . 45

A. Kahler’s Eighth Amendment claim is not

properly before this Court.. . . . . . . . . . . . 45

B. Convicting those who voluntarily and

intentionally kill others, even if they do

not recognize their actions are wrong, is

not cruel and unusual. . . . . . . . . . . . . . . . 47

III.

Even if Some Version of the Right-andWrong Test Were Required, the Failure to

Allow that Defense Here Was Harmless. . . . 55

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

TABLE OF AUTHORITIES

CASES

Bellingham’s Case,

1 Collinson on Lunacy 636 (1812) . . . . . . . . 25, 35

Beverley’s Case,

4 Co. Rep. 123b (1603) . . . . . . . . . . . . . . . . . . . . 21

Byrd v. United States,

138 S. Ct. 1518 (2018). . . . . . . . . . . . . . . . . . . . . 47

Clark v. Arizona,

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

Crowell v. Randell,

35 U.S. 368 (1836). . . . . . . . . . . . . . . . . . . . . . . . 45

Delling v. Idaho,

568 U.S. 1038 (2012). . . . . . . . . . . . . . . . . . . . . . 14

Durham v. United States,

214 F.2d 862 (D.C. Cir. 1954). . . . . . . . . . . . 24, 33

Earl Ferrers’s Case,

19 How. St. Tr. 886 (1760) . . . . . . . . . . . . . . 24, 32

Finger v. State,

27 P.3d 66 (Nev. 2001) . . . . . . . . . . . . . . . . . . . . 31

Ford v. Wainwright,

477 U.S. 399 (1986). . . . . . . . . . . . . . . . . 10, 47, 50

Foucha v. Louisiana,

504 U.S. 71 (1992). . . . . . . . . . . . . . . . . . . . . 15, 39

Hadfield’s Case,

27 How. St. Tr. 1281 (1800) . . . . . . . . . . . . . . . . 24

Harmelin v. Michigan,

501 U.S. 957 (1991). . . . . . . . . . . . . . . . . . . . . . . 47

Harris v. Alabama,

513 U.S. 504 (1995). . . . . . . . . . . . . . . . . . . . . . . 53

Illinois v. Gates,

462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . 45

Klopfer v. North Carolina,

386 U.S. 213 (1967). . . . . . . . . . . . . . . . . . . . . . . 22

Leland v. Oregon,

343 U.S. 790 (1952). . . . . . . . . . . . . . . . . . . . . . . 37

McFadden v. United States,

135 S. Ct. 2298 (2015). . . . . . . . . . . . . . . . . . . . . 44

Miller v. Alabama,

567 U.S. 460 (2012). . . . . . . . . . . . . . . . . . . . . . . 47

M’Naghten’s Case,

8 Eng. Rep. 718 (1843) . . . . . . . . . . . . . . . . passim

Montana v. Egelhoff,

518 U.S. 37 (1996). . . . . . . . . . . . . . . . . . . . . . . . 18

Neder v. United States,

527 U.S. 1 (1999). . . . . . . . . . . . . . . . . . . . . . . . . 55

Panetti v. Quarterman,

551 U.S. 930 (2007). . . . . . . . . . . . . . . . . . . . . . . 50

Patterson v. New York,

432 U.S. 197 (1977). . . . . . . . . . . . . . . . . . . . . . . 18

People v. Schmidt,

216 N.Y. 324 (1915) . . . . . . . . . . . . . . . . . . . . . . 35

Powell v. Texas,

392 U.S. 514 (1968). . . . . . . . . . . 38, 40, 48, 49, 53

Rex v. Arnold,

16 How. St. Tr. 695 (1724) . . . . . . . . . . . 23, 24, 33

Robinson v. California,

370 U.S. 660 (1962). . . . . . . . . . . . . . . . . . . . . . . 48

Spaziano v. Florida,

468 U.S. 447 (1984). . . . . . . . . . . . . . . . . . . . . . . 53

Speiser v. Randall,

357 U.S. 513 (1958). . . . . . . . . . . . . . . . . . . . . . . 18

State v. Bethel,

66 P.3d 840 (Kan. 2003) . . . . . . . . . 8, 9, 13, 14, 19

State v. Herrera,

895 P.2d 359 (Utah 1995) . . . . . . . . . . . . . . . . . . 31

State v. Korell,

690 P.2d 992 (Mont. 1984) . . . . . . . . . . . . . . . . . 31

State v. Pike,

49 N.H. 399 (1869) . . . . . . . . . . . . . . . . . . . . 24, 33

State v. Roeder,

336 P.3d 831 (Kan. 2014) . . . . . . . . . . . . . . . . . . 41

State v. Searcy,

798 P.2d 914 (Idaho 1990) . . . . . . . . . . . . . . . . . 31

State v. Strasburg,

110 P. 1020 (Wash. 1910) . . . . . . . . . . . . . . . . . . . 9

United States v. Currens,

290 F.2d 751 (3d Cir. 1961) . . . . . . . . . . . . . . . . 33

vii

United States v. Freed,

401 U.S. 601 (1971). . . . . . . . . . . . . . . . . . . . . . . 39

Yee v. City of Escondido, California,

503 U.S. 519 (1992). . . . . . . . . . . . . . . . . . . . . . . 45

CONSTITUTION

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

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . 13

STATUTES

18 U.S.C. § 17(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . 1, 46

Ala. Code § 13A-3-1(a) . . . . . . . . . . . . . . . . . . . . . . . 36

Alaska Stat. § 12.47.010(a) . . . . . . . . . . . . . . . . . . . 31

Idaho Code § 18-207 . . . . . . . . . . . . . . . . . . . . . . . . . 31

Ind. Code Ann. § 35-41-3-6(b) . . . . . . . . . . . . . . . . . 36

Kan. Stat. Ann. § 21-5201 . . . . . . . . . . . . . . . . . . . . . 8

Kan. Stat. Ann. § 21-5202(a) . . . . . . . . . . . . . . . . . . . 7

Kan. Stat. Ann. § 21-5209 . . . . . . . . . . . . . . . . . . . . . 7

Kan. Stat. Ann. § 21-5401 et seq.. . . . . . . . . . . . . . . . 7

Kan. Stat. Ann. § 21-5404 . . . . . . . . . . . . . . . . . . . . . 8

Kan. Stat. Ann. § 21-6625(a)(6) . . . . . . . . . . . . . . 8, 40

Kan. Stat. Ann. § 21-6815(c)(1)(C) . . . . . . . . . . . 8, 40

Kan. Stat. Ann. § 22-3219 . . . . . . . . . . . . . . . . . . . . . 9

viii

Kan. Stat. Ann. § 22-3220 (2009) . . . . . . . 7, 9, 13, 46

Kan. Stat. Ann. § 22-3430 . . . . . . . . . . . . . . . . . . 8, 52

Kan. Stat. Ann. § 60-405 . . . . . . . . . . . . . . . . . . 10, 56

Kan. Stat. Ann. § 75-5209 . . . . . . . . . . . . . . . . . . . . 52

Kan. Stat. Ann. § 76-1305 . . . . . . . . . . . . . . . . . . . . 52

Model Penal Code § 4.01(1) . . . . . . . . . . . . . . . . . . . 34

Model Penal Code § 4.01(2) . . . . . . . . . . . . . . . . . . . 36

Mont. Code Ann. § 46-14-102. . . . . . . . . . . . . . . . . . 31

Ohio Rev. Code Ann. § 2901.01(A)(14) . . . . . . . . . . 36

Or. Rev. Stat. § 161.295(1). . . . . . . . . . . . . . . . . . . . 36

Tenn. Code Ann. § 39-11-501(a) . . . . . . . . . . . . . . . 36

Utah Code Ann. § 76-2-305(1)(a) . . . . . . . . . . . . . . . 31

OTHER AUTHORITIES

Augustine, On Free Will, in Augustine: Earlier

Writings (J.H.S. Burleigh ed., 2006) . . . . . . . . . 43

4 Blackstone, Commentaries on the Laws of

England (1769) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Brief of Appellant, State v. Kahler, 410 P.3d 105

(2018) (No. 106981), 2013 WL 3790736 . . . 13, 46

Warren E. Burger, Psychiatrists, Lawyers, and the

Courts, 28 Fed. Probation 3 (June 1964) . . . 28, 36

Code of Justinian . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

2 Sir Edward Coke, The First Part of the Institutes

of the Laws of England (1628) . . . . . . . . . . . . . . 21

Committee Report, Insanity Defense in Criminal

Trials and Limitation of Psychiatric Testimony,

251 J. Am. Med. Ass’n 2967 (1984) . . . . . . . 30, 31

Joshua Dressler, Understanding Criminal Law

(2018) (8th ed.) . . . . . . . . . . . . . . . . . . . . . . . . . . 39

S. Sheldon Glueck, Mental Disorder and the

Criminal Law: A Study in Medico-Sociological

Jurisprudence (1927) . . . . . . . . . . . . . . . . . passim

Joseph Goldstein and Jay Katz, Abolish the

Insanity Defense—Why Not?, 72 Yale L. J. 853

(1963). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

1 Sir Matthew Hale, The History of the Pleas of the

Crown (1736) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Abraham L. Halpern, The Insanity Defense: A

Juridical Anachronism, 7 Psychiatric Annals

398 (1977), available at 1982 Senate Hearings at

290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

H.L.A. Hart, Punishment and Responsibility: Essays

in the Philosophy of Law (1968) . . . . . . . . . . . . . 51

Insanity Defense in Federal Courts: Hearings Before

the Subcommittee on Criminal Justice of the

House Committee on the Judiciary, 97th Cong.,

2d. Sess. (1982)

Statement by the American Psychiatric

Association on the Issues Arising From the

Hinckley Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Isaiah 5:20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Edwin R. Keedy, Insanity and Criminal

Responsibility, 30 Harv. L. Rev. 535 (1917) . 27, 28

Paul J. Larkin, Jr. & GianCarlo Canaparo, Are

Criminals Bad or Mad?—Premeditated Murder,

Mental Illness, and Kahler v. Kansas, 43 Harv.

J. L & Pub. Pol’y (forthcoming 2020), available

at https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=3426522 . . . . . . . . . . . . . . . . . . . . . 49

Norval Morris, Madness and the Criminal Law

(1982). . . . . . . . . . . . . . . . . . . . . . . . . 20, 28, 41, 42

Norval Morris, Psychiatry and the Dangerous

Criminal, 41 S. Cal. L. Rev. 514 (1968) . . . . . . . 28

Norval Morris, Should the Insanity Defense Be

Abolished: An Introduction to the Debate, 1 J.L.

& Health 113 (1986) . . . . . . . . . . . . . . . . . . . 41, 42

Heinrich

Oppenheimer,

The

Criminal

Responsibility of Lunatics. . . . . . . . . . . . . . . . . . 27

Plato’s Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Reform of the Federal Criminal Laws: Hearings

Before the Subcommittee on Criminal Laws and

Procedure of the Senate Committee on the

Judiciary, 93d Cong., 2d Sess. (1974)

Department of Justice Memorandum on Section

502 of the Criminal Code Reform Act (the

Insanity Defense) . . . . . . . . . . . . . . . . . . . . . . . . 29

Testimony of Ronald L. Gainer for DOJ . . . . . . 29

Reform of the Federal Insanity Defense: Hearings

Before the Subcommittee on Criminal Justice of

the House Committee on the Judiciary, 98th

Cong., 1st Sess. (1983)

Statement of Professor Susan N. Herman on

Behalf of the American Civil Liberties Union . . 23

Testimony of D. Lowell Jensen, Assistant

Attorney General, Criminal Division, U.S.

Department of Justice . . . . . . . . . . . . . . . . . . . . 30

Daniel N. Robinson, The Insanity Defense as a

History of Mental Disorder, in The

Oxford Handbook of Philosophy and Psychiatry

(2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

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

974 (1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Christopher Slobogin, A Defense of the

Integrationist Test as a Replacement for the

Special Defense of Insanity, 42 Tex. Tech. L. Rev.

523 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Christopher Slobogin, An End to Insanity: Recasting

the Role of Mental Disability in Criminal Cases,

86 Va. L. Rev. 1199 (2000) . . . . . . . . 35, 42, 53, 54

William French Smith, Limiting the Insanity

Defense: A Rational Approach to Irrational

Crimes, 47 Mo. L. Rev. 605 (1982) . . . . . . . . . . . 29

Raymond L. Spring, Farewell to Insanity: A Return

to Mens Rea, 66 J. Kan. Bar. Ass’n 38 (1997) . . 20

xii

Raymond L. Spring, The End of Insanity, 19

Washburn L.J. 23 (1979) . . . . . . . . . . . . . . . . . . 32

Raymond L. Spring, The End of Insanity: Common

Sense and the Insanity Defense (1983) . . . . . . . . 32

The Insanity Defense: Hearings Before the Senate

Committee on the Judiciary, 97th Cong., 2d Sess.

(1982)

Prepared Statement of David Robinson, Jr. . 29, 30

Testimony of Hon. William French Smith,

Attorney General of the United States . . . . . . . 30

Trial of Francis Parr (1787), https://www.

oldbaileyonline.org/browse.jsp?id=t17860719-31defend363&div=t17860719-31 . . . . . . . . . . . . . . 26

Trial of Samuel Burt (1786), https://www.

oldbaileyonline.org/browse.jsp?id=t17870115-1defend2&div=t17870115-1 . . . . . . . . . . . . . . . . . 26

U.N. Secretary-General & High Commissioner for

Human Rights, Human Rights Council,

Thematic Study by the Office of United Nations

High Commissioner for Human Rights on

Enhancing Awareness and Understanding of the

Convention on the Rights of Persons with

Disabilities, U.N. Doc. A/HRC/10/48

(Jan. 26, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Nigel Walker, Crime and Insanity in

England, Volume One: The Historical

Perspective (1968) . . . . . . . . . . . . 21, 24, 25, 26, 35

OPINIONS BELOW

The Kansas Supreme Court’s opinion is reported at

410 P.3d 105. J.A. 205-80. The district court’s decision

is in the Joint Appendix at J.A. 16.

JURISDICTION

The Kansas Supreme Court issued its opinion on

February 9, 2018. It denied a motion for rehearing or

modification on April 26, 2018, with a corrected order

issued on May 1, 2018.

This Court has jurisdiction over Kahler’s Due

Process claim under 28 U.S.C. § 1257(a). But this Court

lacks jurisdiction over Kahler’s Eighth Amendment

claim, which was not raised before or addressed by the

Kansas Supreme Court. See infra Part II.A.

STATEMENT OF THE CASE

Kraig Kahler intentionally, and with premeditation,

murdered his estranged wife, his two teenage

daughters, and his wife’s grandmother. The jury

convicted Kahler of capital murder and, having heard

all of the evidence that he wished to offer, returned a

sentence of death.

Kahler asks this Court to overturn the jury’s

judgment. He contends that Kansas’s approach to

insanity, under which mental disease or defect is a

defense only to the extent that it shows a lack of mens

rea for the offense, is unconstitutional. In his view,

Kansas was required to allow him to assert a defense

that because of mental disease or defect, he did not

know his actions were wrong. But Kahler’s position is

supported by neither the text of the Constitution nor

any principle of justice so rooted in the traditions and

conscience of our people as to be ranked fundamental.

This Court should therefore affirm the judgment of the

Kansas Supreme Court.

A. Factual Background

1. Kraig Kahler met his wife, Karen, in college at

Kansas State University, where he studied electrical

engineering and graduated with a 3.6 GPA. J.A. 138,

140. Kahler not only excelled in school, he also had an

active social life, playing intramural sports and joining

a fraternity. J.A. 140.

After graduation, Kahler and Karen married and

moved to Colorado for his first job at a nuclear power

plant. J.A. 140. While in Colorado, Kahler obtained an

MBA from the University of Colorado, and their first

child, Emily, was born. Id. The family continued to

move as Kahler’s career advanced, and they were

blessed with two more children, Lauren and Sean. J.A.

Id.

Eventually the family found themselves in

Weatherford, Texas, where Kahler became the director

of utilities. J.A. 140, 213. Karen worked as a personal

trainer. J.A. 213. By all outward appearances, the

family had a “perfect” life, a fact in which Kahler took

great pride. J.A. 41-42, 213.

2. While in Weatherford, Karen sought Kahler’s

permission to engage in a sexual relationship with a

female personal trainer with whom she worked. J.A.

213. Kahler agreed to the relationship, possibly in

hopes of watching the pair engage in sexual relations

or of participating in a threesome. J.A. 64, 85, 213;

ROA Vol. 31, 767. He figured the relationship was not

a threat to their marriage because the family would

soon be moving to Columbia, Missouri, where, in May

2008, he had accepted a new job (with a substantial pay

raise) as the director of water and light. J.A. 111, 128,

213.

But the relationship did not end after the move.

Karen and her girlfriend continued to see each other.

J.A. 129. The three even socialized together, attending

a New Year’s Eve party with friends in Weatherford.

J.A. 128-29. At that party, Karen and her girlfriend

engaged in public displays of affection, upsetting

Kahler. J.A. 129. The night ended with Kahler pushing

Karen and telling her that she was making a fool of

herself. J.A. 129, 214.

Karen filed for divorce in January 2009. J.A. 34. In

her divorce filings, she described Kahler as

“controlling” and “capable of using force.” J.A. 34.

Kahler demonstrated these traits a few months later

when he assaulted Karen while they were discussing

the divorce. He refused to let her leave the room,

cornered her, and physically harmed her, leaving

scrapes and bruises. J.A. 33. Police arrested Kahler for

the assault after a Columbia City Council meeting that

night. J.A. 34. His arrest made the news because of his

job as a public official. J.A. 214. He later pleaded guilty

to the charge. J.A. 132.

Kahler was obsessed with Karen and stalked her

throughout the nearly year-long divorce proceedings.

He key-logged her computer so that he could monitor

her emails; he also monitored her phone calls, credit

charges, and bank accounts. J.A. 69, 114, 131. He

collected more than 3,000 documents in an effort to

establish that Karen was to blame for the divorce.

J.A. 114. And, after intercepting one email, he drove

more than 150 miles to catch Karen with her girlfriend.

J.A. 62. He tried to “sort of psychologically bludgeon

[Karen] back into the relationship” to prevent her from

going forward with the divorce. J.A. 43.

Kahler, meanwhile, considered himself without

fault for the divorce. He maintained that he was

blameless despite Karen revealing during therapy that

she had been unhappy for many years because he did

not listen to her or honor her needs. J.A. 60-62. He

continued to cling to the idea that their marriage had

been perfect until Karen went “off the deep end” with

her extramarital relationship. J.A. 62. He also came to

believe that his daughters were unfairly siding with

Karen in the divorce. J.A. 113, 132.

While preoccupied with the divorce, Kahler lost

focus on his job and was fired in August 2009. J.A. 214.

After being fired, he moved to his parents’ farm in

Meriden, Kansas. Id. While there, he engaged in a

variety of chores, such as building a chicken coop,

putting in hedge posts, building an entryway, and

collecting firewood. J.A. 115, 135. He chose to remain

unemployed to prevent Karen from getting more money

in the divorce. J.A. 133. He also continued to surveil

Karen through Facebook. J.A. 115. Then, instead of

letting the divorce become final, Kahler turned to

murder.

3. Kahler spent Thanksgiving 2009 with his son,

Sean, at the farm in Meriden. J.A. 214. They canoed,

fished, hunted, and worked together on various chores.

J.A. 135, 214.

Arrangements had been made for Karen to pick up

Sean in Topeka on Saturday, November 28, and take

him to the home of her grandmother, Dorothy Wight, in

Burlingame, Kansas. J.A. 214. That morning, Sean,

who had been enjoying his time with his father, called

his mother to ask if he could stay longer. Id. Karen

declined Sean’s request because of their plans with her

grandmother. Id. While Kahler was out running

errands, Kahler’s mother took Sean to Topeka, where

Karen picked him up. Id.

Later that day, Kahler made the roughly hour-long

drive from his parents’ farm to Dorothy’s house in

Burlingame. J.A. 215. After arriving, he approached

the house and peered through the windows to watch

his wife and children inside. J.A. 105-06, 109. Armed

with a high-powered rifle, Kahler broke into the home,

finding Karen and Sean in the kitchen. J.A. 215, 228.

He shot Karen twice, but did not attempt to harm

Sean. Id. Sean ran out of the house. Id. Kahler

remained in the home, hunting down and shooting

Emily, Lauren, and Dorothy. J.A. 215, 261.

While Kahler was still in the house, Dorothy’s Life

Alert system was activated. This generated a recording

to the Life Alert monitoring service that also called

911. J.A. 215. That recording provides “clear evidence”

that “Kahler methodically went through the house

shooting each of the women in turn.” J.A. 261. It also

captures 16-year-old Lauren screaming for help and for

her life. J.A. 261-62; State’s Exs. 264, 265; ROA Vol 31,

768-69. At one point, a transcript notes Kahler telling

a sobbing voice to “stop crying.” J.A. 62.

By the time first responders arrived, Kahler was

gone. J.A. 215. Karen was in the kitchen, barely

breathing and unconscious. Id. She had been shot once

in her leg and once in her upper back. ROA Vol. 33,

1188-89. Dorothy, age 89, was still conscious in a

reclining chair in the living room, with a gunshot

wound to her left arm and torso. J.A. 215; ROA Vol. 33,

1204-05. Emily, age 18, was already dead in the same

room, having been shot in the chest and in the back.

J.A. 124, 215; ROA Vol. 33, 1196-97. Lauren, age 16,

was lying on the floor upstairs, conscious but with

gunshot wounds to her back and buttock. J.A. 124, 215;

ROA Vol. 33, 1177-78. She had been pursued up the

stairs by Kahler as she tried to escape her father’s

gunshots. ROA Vol. 33-1161-61. All four victims

ultimately died, but before doing so, both Dorothy and

Lauren identified Kahler as the shooter. J.A. 215.

Kahler fired only seven shots to kill the four

victims. J.A. 107-08; ROA Vol. 33, 1052. Each shot hit

its intended target, and six of the seven shots would

have proven lethal. J.A. 107-08; ROA Vol. 33, 1213.

After the shooting, Kahler returned to his vehicle,

which he had parked next door to Dorothy’s home.

There, he encountered—but did not shoot—her

neighbors, who were shining flashlights at him and

yelling for him to stop. ROA Vol. 29, 81-82. He fled

from the scene. Law enforcement tried to stop Kahler’s

vehicle, but he evaded capture by turning off his

headlights and pulling into a driveway. ROA Vol. 30,

373-75. By the time law enforcement approached the

vehicle, Kahler had fled on foot. Id. at 381-82.

The next day, law enforcement located Kahler

walking along a county road. J.A. 215. He told them

that he was the one they were seeking and was

arrested without incident despite being armed with

both a knife and a handgun. J.A. 52. He later bragged

that the officers were lucky he chose not to harm them.

J.A. 116-17. The murder weapon was never found.

J.A. 108, 228.

B. Kansas’s Mens Rea Approach to Insanity

After several years of debate about the insanity

defense, the Kansas Legislature in 1995 adopted the

mens rea approach to insanity. J.A. 283-339. Under

this approach, it is “a defense to a prosecution under

any statute that the defendant, as a result of mental

disease or defect, 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. § 22-3220 (2009). 1

Kansas law generally requires a person to act with

one of three culpable mental states to be criminally

liable: intentionally, knowingly, or recklessly. See Kan.

Stat. Ann. § 21-5202(a). Aside from the misdemeanor

crime of vehicular homicide, negligence is insufficient

for a homicide conviction in Kansas. See Kan. Stat.

Ann. § 21-5401 et seq. In addition, under Kansas law,

a person commits a crime only if the person voluntarily

In 2010, this statute was recodified as Kan. Stat. Ann. § 21-5209,

but its provisions have not materially changed.

engages in the conduct. See Kan. Stat. Ann. § 21-5201.

Kansas also has an imperfect self-defense rule that

reduces more severe charges of murder to

manslaughter when a person possesses “an

unreasonable but honest belief” that the use of deadly

force was justified in defense of self or others. Kan.

Stat. Ann. § 21-5404.

An offender’s mental condition also continues to be

relevant at sentencing. Mitigating circumstances under

Kansas’s sentencing guidelines include that “offender,

because of physical or mental impairment, lacked

substantial capacity for judgment when the offense was

committed.” Kan. Stat. Ann. § 21-6815(c)(1)(C). And for

more serious, non-guidelines crimes, including the

capital murder in this case, mitigating factors include

that “[t]he capacity of the defendant to appreciate the

criminality of the defendant’s conduct or to conform the

defendant’s conduct to the requirements of law was

substantially impaired.” Kan. Stat. Ann. § 216625(a)(6). Kansas law also authorizes a judge to

commit a defendant convicted of a felony to a mental

health facility instead of prison when “the defendant is

in need of psychiatric care and treatment,” when “such

treatment may materially aid in the defendant’s

rehabilitation,” and when “the defendant and society

are not likely to be endangered by permitting the

defendant to receive such psychiatric care and

treatment, in lieu of confinement or imprisonment.”

Kan. Stat. Ann. § 22-3430.

As the Kansas Supreme Court has explained, the

“Kansas Legislature has not abolished the insanity

defense but rather redefined it.” State v. Bethel, 66 P.3d

840, 851 (Kan. 2003). While Kansas no longer has an

affirmative defense called insanity, evidence of mental

disease or defect is still admissible to show a lack of

mens rea, thus exempting certain mentally ill

individuals from criminal liability. In fact, Kansas

statutes continue to refer to a “[d]efense of lack of

mental state,” Kan. Stat. Ann. § 22-3220 (2009), and

Kan. Stat. Ann. § 22-3219 requires a defendant to

provide timely notice in order to raise this defense.

Importantly, Kansas has not forbidden evidence of

insanity altogether, as several States sought to do at

the beginning of the Twentieth Century. See, e.g., State

v. Strasburg, 110 P. 1020, 1021-24 (Wash. 1910)

(striking down a law that would have “exclude[d] all

consideration” of insanity, even to show a lack of

criminal intent).

C. Proceedings Below

Following his apprehension, the State of Kansas

charged Kahler with capital murder for the four

murders and with aggravated burglary. J.A. 211. He

did not dispute that he murdered his family. J.A. 216.

Instead, he asserted “that severe depression had

rendered [him] incapable of forming the intent and

premeditation required to establish the crime of capital

murder.” Id. The jury rejected that argument and

recommended a sentence of death.

1. Prior to trial, Kahler filed a motion arguing that

Kansas’s death penalty is unconstitutional because,

among other reasons, Kansas abolished the insanity

defense. J.A. 10-14. Kahler claimed this violates due

process because Kansas’s mens rea approach to

insanity permits an individual “who cannot tell the

difference between right and wrong or cannot conduct

himself or herself accordingly, to still be found guilty of

criminal conduct including capital murder and be put

to death.” J.A. 12.

Kahler’s pretrial motion did not specifically argue

that Kansas’s mental disease or defect statute violates

the Eighth Amendment. The sole mention of the Eighth

Amendment occurred in a block quote from Ford v.

Wainwright, 477 U.S. 399, 404 (1986), which Kahler

cited to support his argument that “the State of Kansas

denies the defendant and others similarly situated due

process of law both procedurally and substantively.”

J.A. 10-14 (emphasis added). He asserted that it would

be unconstitutional to execute him because he “simply

cracked under extreme pressure of a contested and

contentious divorce and acted impulsively and

violently.” J.A. 14.

The district court rejected Kahler’s challenges. J.A.

16. Kahler never proffered testimony that he was

insane under whatever test he believed was

constitutionally required. But see Kan. Stat. Ann.

§ 60-405 (requiring one seeking to offer evidence to

proffer that evidence on the record). The report of his

expert, Dr. Peterson, makes no mention of Kahler’s

inability to understand that his conduct was wrong.

J.A. 51-100.

2. At trial, Kahler asserted that the divorceinduced depression prevented him from premediating

or forming an intent to kill his victims. He called Dr.

Peterson to testify that a major depressive disorder

limited his capacity to manage his own behavior “so

that he couldn’t refrain from doing what he did.”

J.A. 49. But Dr. Peterson did not specifically testify

that Kahler was incapable of premeditation or of

forming the requisite intent. J.A. 216.

Kansas rebutted Dr. Peterson’s testimony with the

testimony of Dr. Logan. Dr. Logan explained that

Kahler’s actions showed planning and intent. J.A. 10509. Driving an hour to Dorothy’s home signaled that

Kahler’s actions were purposeful, not random or

impulsive. J.A. 105. Kahler did not park at the house

or knock on the door, preserving the element of

surprise for his attack. J.A. 109. The items found in his

vehicle, such as camping equipment, clothing, and food

suggested that he was preparing for a trip. J.A. 106.

The location of Kahler’s jacket and business card

outside the home established that Kahler had been

outside watching the family for some time before he

decided to enter. J.A. 106.

As for the shooting itself, the fact that the victims

were shot in different rooms showed Kahler pursued

some of his victims. J.A. 107. Nor were there any

random shots. J.A. 108. Each bullet hit its intended

target. Id. And he purposely spared his son, Sean, with

whom he had a better relationship. J.A. 109.

Kahler’s actions after the shooting also showed that

he acted intentionally. Kahler fled; he did not linger or

render aid to his victims. J.A. 109. When confronted by

neighbors who thought he was a thief, Kahler did not

shoot at them. J.A. 108. These actions indicated Kahler

was not in a deranged state and shooting

indiscriminately. Id. The same was true of his choice to

peacefully surrender to police rather than attempting

to shoot or kill them. J.A. 116-17. And Kahler’s

statement to the police when he surrendered

established an awareness that the police were looking

for him and some knowledge of the reason why. J.A.

108.

Dr. Logan further opined that Kahler’s chores at the

family farm undermined Dr. Peterson’s conclusion that

Kahler was severely depressed because such people

typically have very little energy or interest in activities.

J.A. 115-16. Kahler was also sleeping well and had no

appetite or weight loss. J.A. 119. Dr. Logan concluded

that Kahler was depressed but did not lack the

capacity to form intent or premeditate the murders.

J.A. 115-16, 119.

After deliberating, the jury returned a verdict

finding Kahler guilty of capital murder and aggravated

burglary. J.A. 181, 190.

3. At the penalty phase, no limitation was placed

on the mitigating circumstances and evidence that

Kahler could present to the jury. Each mitigating

circumstance he believed existed was placed in the jury

instructions. J.A. 150-52, 194-96. Included as one of his

mitigating circumstances was that his capacity “to

appreciate the criminality of” his conduct “was

substantially impaired.” J.A. 195. Still, Dr. Peterson

did not opine that Kahler could not distinguish right

from wrong, only that Kahler temporarily lost control

of his actions. ROA Vol. 38, 42-62. Having heard all of

the mitigating evidence that Kahler saw fit to present,

the jury determined that Kahler should be sentenced to

death. J.A. 203.

4. Kahler appealed to the Kansas Supreme Court,

raising ten issues. J.A. 211. As relevant here, he

argued that Kansas’s mens rea approach to the insanity

defense violates the “Due Process Clause of the

Fourteenth Amendment” and the Kansas Constitution.

Brief of Appellant, State v. Kahler, 410 P.3d 105

(No. 106981), 2013 WL 3790736, at *41-47. He did not

assert that the meas rea approach violates the Eighth

Amendment. Id. at *41-47.

The Kansas Supreme Court recognized that

Kahler’s challenge to Kan. Stat. Ann. § 22-3220 (2009)

was limited. It noted that the only claim Kahler

presented in that regard was that “the statute violates

the Due Process Clause because it offends a principle

of justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental.” J.A. 243.

Because it was not pressed, the Kansas Supreme Court

did not consider whether Kansas’s mens rea approach

violates the Eighth Amendment.

In rejecting Kahler’s due process claim, the Kansas

Supreme Court first briefly discussed the history of

Kansas’s mental disease and defect defense and then

noted that it had rejected the same due process

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

cert. denied 540 U.S. 1006 (2003). J.A. 242-43. In

Bethel, the Kansas Supreme Court, after reviewing

decisions from this Court and other courts considering

similar issues, held that Kan. Stat. Ann § 22-3220 did

not violate a defendant’s right to due process under

either the United States or Kansas Constitutions. 66

P.3d at 844-51. Kahler added no new argument to that

rejected in Bethel except to cite the dissent from denial

of certiorari in Delling v. Idaho, 568 U.S. 1038 (2012),

which the Kansas Supreme Court held had “no effect

on [the] Bethel decision.” J.A. 244.

The Kansas Supreme Court upheld Kahler’s

convictions and his death sentence.

SUMMARY OF ARGUMENT

Kansas’s mens rea approach to insanity does not

violate either the Due Process Clause or the Eighth

Amendment.

I. Kahler incorrectly argues that the Due Process

Clause requires an insanity test that applies when a

defendant, due to mental disease or defect, did not

understand that his actions were wrong. That test is

not so deeply rooted in our history and tradition as to

be compelled by due process.

A. Historically, insanity was often tied to a lack of

mens rea. Many of the English legal writers most

familiar to early Americans—Bracton, Coke, Hale, and

Blackstone—all made this connection. Even when

references to knowledge of good and evil began to creep

into discussions of insanity, the cases still often

referred to insanity as involving a lack of criminal

intent. The right-and-wrong insanity test did not fully

develop as an independent test until the Nineteenth

Century, and even then it continued—and has

continued—to be the subject of much debate. Over the

years, many legal scholars, medical professionals, and

policymakers have advocated for the mens rea

approach to insanity, and Kansas followed the lead of

several other States in adopting that approach. The

various insanity tests that have been used over the

years demonstrate that the right-and-wrong insanity

test is not deeply rooted in our history and tradition.

B. As this Court has previously recognized, the Due

Process Clause does not mandate that States adopt any

one particular approach to insanity. See, e.g., Clark v.

Arizona, 548 U.S. 735 (2006). Instead, given the

complex legal, religious, moral, philosophical, and

medical questions involved, States have the “freedom

to determine whether, and to what extent, mental

illness should excuse criminal behavior.” Foucha v.

Louisiana, 504 U.S. 71, 88 (1992) (O’Connor, J.,

concurring).

C. Kahler argues that those who are morally

blameless should be exempted from criminal liability,

but that begs the question of who is morally blameless.

Kansas has reasonably determined that individuals

who voluntarily and intentionally kill another human

being are culpable, even if they do not recognize their

actions are morally wrong. After all, terrorists who kill

in the name of religion may sincerely believe that their

actions are morally justified or even morally required,

but they are still culpable. Even when it comes to

mentally ill offenders, knowledge of wrongfulness is not

recognized as necessary for moral blame. Otherwise

psychopaths, who are often excluded from the insanity

defense, would be considered morally blameless and

escape conviction.

Just as knowledge that one’s conduct is morally

wrong is not required for culpability, neither is

knowledge of its criminality. It is a longstanding

principle that knowledge of the law is not required for

criminal culpability. Kansas has reasonably

determined that there is no basis for creating an

exception to this general principle for a certain subset

of the mentally ill.

In any event, the concern about moral

blamelessness is certainly not present here. The jury,

having heard all of the mitigating evidence Kahler

wished to offer, determined that Kahler should be

sentenced to death. They would not have rendered that

verdict if they believed him to be morally blameless.

II. Kansas’s mens rea approach to insanity also does

not violate the Eighth Amendment.

A. Kahler never argued to the Kansas Supreme

Court that Kansas’s mens rea approach to insanity

violates the Eighth Amendment. As a result, the

Kansas Supreme Court did not address the question.

This Court therefore lacks jurisdiction to consider the

claim.

B. Kahler’s Eighth Amendment claim also fails on

the merits. The Cruel and Unusual Punishment

Clause, as demonstrated by its text and historical

background, only applies to prohibit certain

punishments. It does not mandate that States adopt

certain affirmative defenses to criminal convictions in

the first place.

In any event, Kansas’s mens rea approach to

insanity is not cruel and unusual. This approach would

not have been considered cruel and unusual at the

Founding, when insanity was still often tied to a lack

of mens rea and the right-and-wrong test had not yet

fully developed. Nor is it cruel and unusual today. The

mens rea approach is entirely consistent with the

purposes of retribution, deterrence, incapacitation, and

rehabilitation. In fact, the mens rea approach is

arguably more “evolved” than an affirmative insanity

defense, which can stigmatize the mentally ill.

III.

Even if the Constitution required some

version of the right-and-wrong insanity test, the failure

to allow that defense here was harmless as Kahler is

not insane under that test. Kahler’s own expert was

unable to conclude that Kahler is insane. And, despite

the fact that there was no limitation on Kahler’s ability

to present mitigating evidence during the penalty

phase, he neither offered nor proffered any evidence

that he could not distinguish right from wrong.

Instead, his expert only opined that Kahler could not

control his actions, which at most relates to a volitional

test of insanity that Kahler concedes is not required by

the Constitution. Thus, even if this Court were to adopt

some version of the test that Kahler proposes, Kahler

himself cannot satisfy it.

ARGUMENT

Kansas’s Mens Rea Approach to Insanity

Does Not Violate the Due Process Clause.

The task of defining criminal liability is largely left

to the States, and this Court has recognized that it

“should not lightly construe the Constitution so as to

intrude upon the administration of justice by the

individual States.” Patterson v. New York, 432 U.S.

197, 201 (1977) (internal citation omitted). A State’s

choice in this regard is “not subject to prescription

under the Due Process Clause unless ‘it offends some

principle of justice so rooted in the traditions and

conscience of our people as to be ranked as

fundamental.’” Id. at 201-02 (quoting Speiser v.

Randall, 357 U.S. 513, 523 (1958)); accord Montana v.

Egelhoff, 518 U.S. 37, 43 (1996) (opinion of Scalia, J.).

Kahler asserts that there is a longstanding

recognition that the “insane” should not be punished,

but this raises the question of what it means to be

“insane.” After all, “insanity” is a legal conclusion, not

a medical diagnosis. While Kahler equates insanity

with the inability to appreciate the wrongfulness of

one’s conduct, this test of insanity is not so deeply

rooted in our history and tradition as to render

Kansas’s mens rea approach to insanity

unconstitutional.

As this Court recognized in Clark v. Arizona, 548

U.S. 735 (2006), “[e]ven a cursory examination of the

traditional Anglo-American approaches to insanity

reveals significant differences among them.” Id. at 749.

After detailing various approaches to insanity, Clark

held that “it is clear that no particular formulation has

evolved into a baseline for due process, and that the

insanity rule, like the conceptualization of criminal

offenses, is substantially open to state choice.” Id. at

752. Kansas’s mens rea approach to insanity therefore

does not violate the Due Process Clause.

A. The right-and-wrong insanity test is not

deeply rooted in our history and

traditions.

Contrary to Kahler’s argument, an insanity defense

based on the ability to distinguish right from wrong “is

a creature of the 19th century and is not so ingrained

in our legal system to constitute a fundamental

principle of law.” State v. Bethel, 66 P.3d 840, 851 (Kan.

2003). As a result, the right-and-wrong test that Kahler

champions is not required by the substantive concepts

of due process.

1. Many ancient references to insanity are at best

ambiguous and consistent with the mens rea approach.

“[I]f mental disease (or insanity) relieved from

responsibility for crime in those early days, it is

doubtful if any attempt was made to reduce the vague

generalities, ‘madness,’ or ‘insanity,’ to more concrete,

medical, psychological, or legal concepts.” S. Sheldon

Glueck, Mental Disorder and the Criminal Law: A

Study in Medico-Sociological Jurisprudence, 124

(1927). For instance, Kahler cites a statement made by

the Athenian stranger in Plato’s Laws suggesting that

insanity should excuse a crime or at least mitigate

punishment. Pet. Br. at 19. This philosophical

proposition is not reflective of actual historical practice.

See Daniel N. Robinson, The Insanity Defense as a

History of Mental Disorder, 20, in The Oxford

Handbook of Philosophy and Psychiatry (2013) (“There

is no evidence in the ancient sources, however, that

such philosophical reflections . . . yielded exculpatory

consequences in the arena of adjudication. Ancient

courts regarded the criminal act itself as evidence of

mental capacity . . . .”). But even so, there is no

definition of what it meant to be “insane,” and certainly

no indication that it required the inability to

distinguish right from wrong.

It is just as likely that these early sources

understood insanity as a severe lack of cognition that

precluded the ability to form criminal intent. This view

is supported by the Sixth-Century Code of Justinian,

which provided: “There are those who are not to be held

accountable, such as a madman and a child, who are

not capable of wrongful intention.” Pet. Br. at 19

(emphasis added); see also Raymond L. Spring,

Farewell to Insanity: A Return to Mens Rea, 66 J. Kan.

Bar. Ass’n 38, 39 (1997) (citing the Code of Justinian in

support of the mens rea approach).

2. In England, the concepts of mens rea and

insanity developed contemporaneously, with insanity

being tied to lack of mens rea. As Professor Norval

Morris, a former Dean of the University of Chicago Law

School, explained: “Until the nineteenth century,

criminal-law doctrines of mens rea (criminal intent)

handled the entire problem” of insanity. Norval Morris,

Madness and the Criminal Law, 54 (1982). After all,

“mens rea” means “guilty mind” and was taken to

reflect a person’s culpability.

A “who’s who” of early legal thinkers confirm that

mens rea and insanity were intractably tied together.

Bracton, who was influential in incorporating the

principle of mens rea into English law, believed that

“madmen” should not be punished because they lacked

mens rea. See Nigel Walker, Crime and Insanity in

England, Volume One: The Historical Perspective, 27

(1968) (“[F]or Bracton madmen as well as children were

examples of offenders who lacked the intention

necessary for guilt.”). “Bracton’s conception of a

madman was one who does not know what he is doing,

who is lacking in mind and reason, and who is not far

removed from the brutes.” Francis Bowes Sayre, Mens

Rea, 45 Harv. L. Rev. 974, 1005 (1932). Individuals in

such a desperate state were considered incapable of

forming mens rea.

Sir Edward Coke echoed this same understanding

in Beverley’s Case, 4 Co. Rep. 123b (1603), writing that

“[n]o felony or murder can be committed without . . . a

felonious intent and purpose,” and therefore a “non

compos mentis” cannot be guilty of a felony because “he

cannot have a felonious intent.” Id. at 124b. And in his

Institutes, Coke explained that in criminal cases, “the

act and wrong of a madman shall not [be] imputed to

him, for that in those causes, actus non facit reum, nisi

mens sit rea” (the act does not make a person guilty

unless the mind is guilty)—an explicit reference to

mens rea. 2 Sir Edward Coke, The First Part of the

Institutes of the Laws of England, 247b (1628). Thus,

“Coke wisely relied upon the general requirement of

criminal intent and upon the rule that mental disease

and defect negative such intent.” Glueck, Mental

Disorder and the Criminal Law at 131. Because Coke’s

teachings “were read in the American Colonies by

virtually every student of the law,” Klopfer v. North

Carolina, 386 U.S. 213, 225 (1967), these concepts

would have been familiar to the framers of the

Constitution.

Likewise, Sir Matthew Hale believed “that the

defense of insanity is intimately related with the whole

topic of criminal intent.” Glueck, Mental Disorder and

the Criminal Law at 131. Hale therefore sought “to

assimilate the defense of insanity to that of infancy on

the basis of lack of mens rea,” postulating that a

mentally ill individual who has as much understanding

as a 14-year-old child may be found guilty. Sayre, 45

Harv. L. Rev. at 1006. Hale’s chapter on insanity in his

History of the Pleas of the Crown says nothing about

right and wrong or good and evil. Instead, Hale

explained that insanity requires “a total alienation of

the mind or perfect madness.” 1 Sir Matthew Hale, The

History of the Pleas of the Crown, 30 (1736).

So too with Blackstone. Blackstone wrote that “to

make a complete crime, cognizable by human laws,

there must be both a will and an act”—in other words,

mens rea and actus reus. 4 Blackstone, Commentaries

on the Laws of England, 21 (1769). Blackstone then

laid out several pleas and excuses, including insanity,

“which protect the committer of a forbidden act from

the punishment,” and tied them all to a lack of mens

rea. Id. at 20 (“An involuntary act, as it has no claim to

merit, so neither can it induce any guilt: the

concurrence of the will, when it has it’s [sic] choice

either to do or to avoid the fact in question, being the

only thing that renders human actions either

praiseworthy or culpable.”).

Thus, many of the English legal writers most

familiar to early Americans—Blackstone, Hale, Coke,

and Bracton—all linked insanity to a lack of mens rea.

As the American Civil Liberties Union recognized in

1983 congressional hearings on the subject, early

English history “treated insanity as the equivalent of

a complete lack of reason, thus merging concepts of

mens rea and insanity . . . . Therefore, the framers of

the Constitution would not have been likely to

recognize or appreciate an issue based on a distinction

between mens rea and insanity.” Statement of

Professor Susan N. Herman on Behalf of the American

Civil Liberties Union, Reform of the Federal Insanity

Defense: Hearings Before the Subcommittee on

Criminal Justice of the House Committee on the

Judiciary, 98th Cong., 1st Sess. 527 (1983) (“1983

House Hearings”). If anything, the mens rea approach

was actually more deeply rooted in history and

tradition at the time of the Founding than the rightand-wrong test.

3. Even when references to the knowledge of good

and evil began to creep into the discussion of insanity,

these concepts were still often tied to mens rea. For

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

Justice Tracy referenced the ability to distinguish good

and evil, but also described an insane person as one

“deprived of his reason, and consequently of his

intention.” Id. at 764. To be exempted from criminal

responsibility, he told the jury, a man must be “totally

deprived of his understanding and memory, and doth

not know what he is doing, no more than an infant,

than a brute, or a wild beast.” Id. at 764-65.2 Justice

“Tracy does not make it clear whether inability either

to know what he was doing or to know that it was

wrong would have excused Arnold; he speaks as if the

two went together. It was not until the nineteenth

century that they became clearly separate alternative

tests.” Walker, Crime and Insanity in England at 57.

Likewise, in the 1760 trial of Earl Ferrers before the

House of Lords, the Solicitor General referenced the

ability to distinguish good and evil but relied primarily

on Hale’s insanity test, describing it as “founded not

only in law and practice, but in the most unerring rules

of reason and justice.” Earl Ferrers’s Case, 19 How. St.

Tr. 886, 946-48 (1760). This test, the Solicitor General

explained, required a total lack of reason. Id. at 947.

The Solicitor General argued that Earl Ferrers failed to

meet this test because he acted with premeditation and

knowledge of the consequences of his actions, and the

Lords apparently agreed, condemning Earl Ferrers to

death. Id. at 948-51, 959.

Kahler cites Hadfield’s Case, 27 How. St. Tr. 1281 (1800), to

argue that Arnold is an outlier. But in reality, Hadfield was the

outlier. Justice Tracy’s instructions in Arnold were consistent with

the existing tests of insanity. See Walker, Crime and Insanity in

England at 38. But in Hadfield, Lord Erskine successfully argued

for a much broader test, one that “was without judicial authority

in its day.” Glueck, Mental Disorder and the Criminal Law at 14748 (emphasis omitted). According to Lord Erskine, “the true

character of insanity” is delusion in connection with the act. 27

How. St. Tr. at 1314. This resembles the later “product test” of

insanity. See State v. Pike, 49 N.H. 399 (1869); Durham v. United

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

By the time of Bellingham’s Case in 1812, the terms

“right” and “wrong” had begun to be used, but insanity

was still described as a total loss of reason, with a

corresponding inability to form intent. As Lord

Mansfield, the Chief Justice of Common Pleas,

informed the jury:

If a man were deprived of all power of reasoning,

so as not to be able to distinguish whether it was

right or wrong to commit the most wicked

transaction, he could not certainly do an act

against the law. Such a man, so destitute of all

power of judgment, could have no intention at

all.

Bellingham’s Case, 1 Collinson on Lunacy 636, 671

(1812) (emphasis added).

The same is true of the two Old Bailey cases cited in

the amicus brief of four legal historians and

sociologists. See Amicus Br. of Legal Historians and

Sociologists at 13-14. The usefulness of these cases is

questionable, as there is no indication that these

unpublished reports were widely known even in legal

circles. See Walker, Crime and Insanity in England at

12 (“There is a sense, of course, in which only the

reported cases can make legal history; for it is only the

case in the law reports of which judges can be expected

to take notice in deciding what the law must be.”).

Even so, these cases hardly demonstrate that the rightand-wrong test was established as a separate

exculpatory defense independent of mens rea. In the

1787 trial of Francis Parr, after the judge mentions the

ability to distinguish between right and wrong, he goes

on to say that an insane person “is not answerable

personally, because his actions want that which is the

essence of any crime, which is the felonious and

criminal intention.”3 (Emphasis added.) And in the

1786 trial of Samuel Burt, which dealt with forgery, the

judge immediately after mentioning the ability to

distinguish between right and wrong ties this to the

concept of mens rea, noting that “the essence of forgery

is the intent to defraud, and if therefore the party is

incapable of knowing what he does, he can have no

such intention.”4

Far from supporting Kahler’s argument, these cases

demonstrate that an independent right-and-wrong test

was not firmly established by the time of the Founding.

In fact, other Old Bailey insanity cases do not even

reference right and wrong at all. For instance, in the

1784 trial of William Walker, the judge’s “summing-up

made no mention of ‘wild beasts’ or the ability to tell

right from wrong; indeed, at times he sounded like a

twentieth-century judge describing a case of

‘irresistible impulse.’” Walker, Crime and Insanity in

England at 64.

4. During the Nineteenth Century, earlier

references to knowledge of good and evil morphed into

the right-and-wrong test recognized in M’Naghten’s

Case, 8 Eng. Rep. 718 (1843), but this test continued to

be the subject of much debate and did not become so

deeply entrenched as to become a fundamental

https://www.oldbaileyonline.org/browse.jsp?id=t17870115-1defend2&div=t17870115-1.

https://www.oldbaileyonline.org/browse.jsp?id=t17860719-31defend363&div=t17860719-31.

principle of law. A 1909 treatise on the criminal

responsibility of the insane, for example, described this

ongoing debate:

The feud between medical men and lawyers in

all questions concerning the criminal liability of

lunatics is of old standing. More than one

authority on either side has tried to bring about

a reconciliation between the contending parties.

But their endeavours have been crowned with

very little success. For though it cannot be

denied that the strife and warfare has of late

lost much of its former bitterness, a modus

vivendi satisfactory to both parties has not been

found.

Edwin R. Keedy, Insanity and Criminal Responsibility,

30 Harv. L. Rev. 535, 535 (1917) (quoting Heinrich

Oppenheimer, The Criminal Responsibility of

Lunatics).

A year after this observation was made, Professor

John Henry Wigmore, then-president of the American

Institute of Criminal Law and Criminology, appointed

a committee of law professors, judges, and physicians

to try to reach some agreement so “that the difficult

problem of determining the relation of insanity to

criminal responsibility might be thereby to some extent

solved.” Id. In 1916, the committee reached unanimous

agreement and recommended a mens rea approach to

insanity. Specifically, their proposed bill stated:

No person shall hereafter be convicted of any

criminal charge when at the time of the act or

omission alleged against him he was suffering

from mental disease or defect and by reason of

such mental disease he did not have the

particular state of mind that must accompany

such act or omission in order to constitute the

crime charged.

Id. at 536. This recommendation was approved by the

American Institute of Criminal Law and Criminology.

Id.

The mens rea approach, or some variation, has been

advocated by many scholars since then. See Norval

Morris, Psychiatry and the Dangerous Criminal, 41 S.

Cal. L. Rev. 514, 544-47 & n.13 (1968) (discussing

advocates of the approach); Joseph Goldstein and Jay

Katz, Abolish the Insanity Defense—Why Not?, 72 Yale

L. J. 853 (1963). As Professor Morris argued in his book

on the subject, “[t]he English and American judges

went wrong in the nineteenth century; it is time we

returned to older and truer principles.” Morris,

Madness and the Criminal Law at 56. Even then-Judge

Warren Burger proposed that “perhaps we should

consider abolishing what is called the ‘insanity

defense.’” Warren E. Burger, Psychiatrists, Lawyers,

and the Courts, 28 Fed. Probation 3, 9 (June 1964).

This debate attracted the attention of policymakers.

In 1974, the U.S. Department of Justice recommended

that Congress adopt a mens rea approach to the

insanity defense. At the time, the U.S. Senate was

considering comprehensive reforms to the federal

criminal code. The Department of Justice supported

S. 1400, which—in language nearly identical to

Kansas’s current law—provided: “It is a defense to a

prosecution under any federal statute that the

defendant, as a result of mental disease or defect,

lacked the state of mind required as an element of the

offense charged. Mental disease or defect does not

otherwise constitute a defense.” Department of Justice

Memorandum on Section 502 of the Criminal Code

Reform Act (the Insanity Defense), Reform of the

Federal Criminal Laws: Hearings Before the

Subcommittee on Criminal Laws and Procedure of the

Senate Committee on the Judiciary, 93d Cong., 2d Sess.

6813 (1974) (“1974 Senate Hearings”); see also William

French Smith, Limiting the Insanity Defense: A

Rational Approach to Irrational Crimes, 47 Mo. L. Rev.

605, 612, 615 (1982) (summarizing the Department’s

“years of thoughtful consideration” and

recommendation to adopt the mens rea approach).

The Department of Justice was not alone. Its

proposal to adopt the mens rea approach was

“supported by bar associations[,] . . . the heads of the

majority of the state psychiatric institutions who had

been queried,” and “62.5 percent of the queried

psychiatrists.” Testimony of Ronald L. Gainer for DOJ,

1974 Senate Hearings at 6812. In fact, “the mens rea

approach to the issue of insanity . . . attained support

from a wide spectrum of psychiatrists, legal scholars,

and professional groups. It . . . also had impressive

bipartisan support in the Congress, by members

representing a broad range of political and social

views.” Prepared Statement of David Robinson, Jr., The

Insanity Defense: Hearings Before the Senate

Committee on the Judiciary, 97th Cong., 2d Sess. 76

(1982) (“1982 Senate Hearings”).

In 1982, the Department of Justice reiterated its

support for the mens rea approach before ultimately

acceding to a legislative compromise. See Testimony of

Hon. William French Smith, Attorney General of the

United States, 1982 Senate Hearings at 26-29;

Testimony of D. Lowell Jensen, Assistant Attorney

General, Criminal Division, U.S. Department of

Justice, 1983 House Hearings at 239-40.

At the time of the 1982 hearings, psychiatrists were

so divided about the role of the insanity defense (and

psychiatrists’ role in proving and disproving it), the

American Psychiatric Association was unwilling to take

a position. See Statement by the American Psychiatric

Association on the Issues Arising From the Hinckley

Trial, Insanity Defense in Federal Courts: Hearings

Before the Subcommittee on Criminal Justice of the

House Committee on the Judiciary, 97th Cong., 2d.

Sess. 58, 77 (1982). But Dr. Abraham L. Halpern, then

president-elect of the American Academy of Psychiatry

in the Law, testified in favor of the “total elimination of

the exculpatory insanity rule” and its replacement with

the mens rea approach. 1982 Senate Hearings at 283;

see Abraham L. Halpern, The Insanity Defense: A

Juridical Anachronism, 7 Psychiatric Annals 398

(1977), available at 1982 Senate Hearings at 290.

And in 1983, the American Medical Association

adopted a policy calling for the replacement of the

affirmative defense of insanity with the mens rea

approach. Committee Report, Insanity Defense in

Criminal Trials and Limitation of Psychiatric

Testimony, 251 J. Am. Med. Ass’n 2967, 2967 (1984).

The AMA’s Committee on Medicolegal Problems

produced a report on the issue which surveyed the

history of the insanity defense and the ongoing debate.

The report explained that “[t]he essential goal of an

exculpatory test for insanity is to identify the point at

which a defendant’s mental condition has become so

impaired that society may confidently conclude that he

has lost his free will.” Id. at 2978. But the report

concluded that “[p]sychiatric concepts of mental illness

are ill-suited to this task, even assuming the reliability

of the highly subjective diagnostic criteria of mental

illness.” Id. Accordingly, the AMA believed that the

mens rea test would be more appropriate based on the

state of medical knowledge.

Although the mens rea approach was not adopted at

the federal level, three other States—Montana, Idaho,

and Utah—preceded Kansas in adopting it. Mont. Code

Ann. § 46-14-102; Idaho Code § 18-207; Utah Code Ann.

§ 76-2-305(1)(a).5 The supreme courts of all three

States have upheld the constitutionality of this

approach. See State v. Herrera, 895 P.2d 359 (Utah

1995); State v. Searcy, 798 P.2d 914 (Idaho 1990); State

v. Korell, 690 P.2d 992 (Mont. 1984). In addition,

Alaska has adopted a very similar approach. While

insanity remains an affirmative defense in Alaska, only

the cognitive prong of M’Naghten remains; a

requirement that the defendant know his actions were

wrong—which Kahler argues is at the core of the

insanity defense—has been abolished. Alaska Stat.

§ 12.47.010(a).

In addition, Nevada adopted the mens rea approach the same year

as Kansas, although its supreme court later held the approach

unconstitutional. See Finger v. State, 27 P.3d 66 (Nev. 2001).

In Kansas, support for the mens rea approach dates

to at least the late 1970s. Raymond Spring, a law

professor and former Dean of the Washburn University

School of Law, was the leading advocate for the mens

rea approach in Kansas and ultimately played a key

role in convincing the Kansas Legislature to adopt it.

See Raymond L. Spring, The End of Insanity: Common

Sense and the Insanity Defense (1983); J.A. 290, 327-30,

338-39. Kahler’s suggestion that the Kansas

Legislature’s adoption of the mens rea approach was a

knee-jerk, “misinformed reaction to a pair of headlinegrabbing cases” is wrong. Pet. Br. at 12. Professor

Spring’s support for and advocacy of the mens rea

approach predates the cases Kahler mentions. See

Raymond L. Spring, The End of Insanity, 19 Washburn

L.J. 23 (1979). And, as demonstrated above, the mens

rea approach has an even longer historical pedigree.

5. Historically, a variety of tests and combinations

thereof have been used to define insanity. In addition

to the mens rea approach, these include:

• Requiring a total lack of understanding or

reason. This was often tied to a lack of mens

rea on the theory that a person completely

deprived of understanding could not form

criminal intent. Later, this test was also used

in conjunction with early references to good

and evil or right and wrong, as in Earl

Ferrers’s Case. See supra Part I.A.3.

• Hale’s understanding-of-a-14-year-old test,

which was based on the concept of mens rea.

• Fitzherbert’s test, defining an insane person

as one “who cannot account or number

twenty pence, nor can tell who was his father

or mother, nor how old he is, etc., so as it

may appear he hath no understanding of

reason what shall be for his profit, or what

for his loss,” but excluding a person who has

“such understanding that he know and

understand his letters, and do read by

teaching of another man.” Quoted in Glueck,

Mental Disorder and the Criminal Law at

129

• The “wild beast” test. See Rex v. Arnold, 16

How. St. Tr. 695 (1724).

• The irresistible impulse test. While this is

often combined with a version of the rightand-wrong test, as in the ALI formulation,

this is not always the case. For instance, in

United States v. Currens, 290 F.2d 751 (3d

Cir. 1961), the Third Circuit adopted a

control test asking whether the defendant

“possessed substantial capacity to conform

his conduct to the requirements of the law”

that specifically excluded the question of

whether the defendant knew the difference

between right and wrong. Id. at 772, 775.

• The “product” test, which excuses a

defendant if the crime was a product of

mental disease or defect. See State v. Pike, 49

N.H. 399 (1869); Durham v. United States,

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

Kahler argues that the right-and-wrong test

is subsumed in the product test, the

vagueness of the product test leaves this less

than clear. Certainly, the jury is not

specifically instructed that the defendant

must have been unable to distinguish right

from wrong to be excused.

The variety of other insanity tests that have been used

over time demonstrate that the right-and-wrong test is

not so deeply rooted in our history and tradition as to

become a fundamental right.

Even when it comes to the right-and-wrong test,

there are profound disagreements about the meaning

and implementation of that test. In particular, courts

and legislatures have divided on whether “wrong”

refers to moral wrong or criminal wrong. See, e.g.,

Model Penal Code § 4.01(1) (referring to “criminality”

while suggesting “wrongfulness” as a potential

alternative). While Kahler tries to gloss over this

distinction, these are very different concepts. A person

may know that an action is against the law and yet

believe that it is morally justified. Given the frequent

use of a “criminality” standard, it cannot be said that

the Due Process Clause requires knowledge of moral

wrongfulness for criminal culpability. Likewise, the

fact that knowledge of moral wrongfulness alone is

sufficient in other jurisdictions demonstrates that a

knowledge-of-criminality requirement is not deeply

rooted in our history and tradition. These are

essentially two different right-and-wrong tests, and the

significant differences between the two demonstrate

that neither is required by due process.

There is also no agreement whether knowledge of

right and wrong refers to those concepts in the abstract

or whether it means that defendants must have known

that their specific conduct was wrong. See Christopher

Slobogin, An End to Insanity: Recasting the Role of

Mental Disability in Criminal Cases, 86 Va. L. Rev.

1199, 1207 (2000) (distinguishing “general” ignorance

of the law from “specific” ignorance of the law). Many

of the earlier references to distinguishing between good

and evil or between right and wrong meant the

concepts generally. See Walker, Crime and Insanity in

England at 111; Glueck, Mental Disorder and the

Criminal Law at 216; People v. Schmidt, 216 N.Y. 324,

331 (1915) (Cardozo, J.). For instance, in Bellingham’s

Case, Lord Mansfield stated that allowing a person to

be excused just because he believed his actions were

right would be a “pernicious” doctrine. 1 Collinson on

Lunacy at 670-71. Instead, “[i]f such a person were

capable, in other respects, of distinguishing right from

wrong, there was no excuse for any act of atrocity

which he might commit under this description of

derangement.” Id. at 672 (emphasis added). Under this

test, a person who understands that murder is wrong

generally would not be excused just because he believed

a specific murder was morally justified.

M’Naghten shifted away from this approach,

allowing a defendant to escape criminal liability when

he can demonstrate “that he did not know he was doing

what was wrong.” 8 Eng. Rep. at 722. The judges

acknowledged that the question had often been

presented as knowledge of right and wrong “generally

and in the abstract,” but they suggested that it would

be more accurately framed “with reference to the

party’s knowledge of right and wrong in respect to the

very act with which he is charged.” Id. at 722-23. This

was a significant change. In fact, then-Judge Warren

Burger once described M’Naghten as abolishing the

right-and-wrong test for this reason. 28 Fed. Probation

at 4. To the extent Kahler is arguing that a defendant

must have knowledge that his specific conduct was

wrong, this test is not as historically grounded as

Kahler would have the Court believe.

In addition, many States have narrowed the scope

of the insanity defense by excluding defendants with

certain mental diseases or defects. The Model Penal

Code provides that “the terms ‘mental disease or defect’

do not include an abnormality manifested only by

repeated criminal or otherwise antisocial conduct.”

Model Penal Code § 4.01(2). The federal government

and some States require that the mental disease or

defect be “severe.” See, e.g., 18 U.S.C. § 17(a); Ala. Code

§ 13A-3-1(a); Ind. Code Ann. § 35-41-3-6(b); Ohio Rev.

Code Ann. § 2901.01(A)(14); Tenn. Code Ann. § 39-11501(a). Other States have excluded specific conditions,

such as personality disorders. See Or. Rev. Stat.

§ 161.295(1). The fact that States have restricted the

right-and-wrong insanity test to only a certain subset

of mentally ill offenders again demonstrates that this

test is not recognized as fundamental.

As this Court recognized in Clark, “[h]istory shows

no deference to M’Naghten that could elevate its

formula to the level of fundamental principle, so as to

limit the traditional recognition of a State’s capacity to

define crimes and defenses.” 548 U.S. at 749. This is

equally true of the second prong of M’Naghten as it is

of the entire test. And so, just as Arizona could

eliminate the cognitive incapacity prong of M’Naghten,

States are free to eliminate the knowledge of

wrongness prong and to allow culpability to be

established by proof of mens rea.

B. As this Court has previously recognized,

the Due Process Clause does not

mandate a particular insanity test.

This Court has repeatedly held that the Due Process

Clause leaves States with substantial flexibility to

determine the substance of their criminal law, and this

flexibility is at its zenith with it comes to the question

of insanity. As explained in Leland v. Oregon, 343 U.S.

790 (1952), the “choice of a test of legal sanity involves

not only scientific knowledge but questions of basic

policy as to the extent to which that knowledge should

determine criminal responsibility. This whole problem

has evoked wide disagreement among those who have

studied it.” Id. at 801. The dissenters in Leland agreed

on this point:

At this stage of scientific knowledge it would be

indefensible to impose upon the States, through

the due process of law which they must accord

before depriving a person of life or liberty, one

test rather than another for determining

criminal culpability, and thereby to displace a

State’s own choice of such a test . . . .

Id. at 803 (Frankfurter, J., dissenting).

The Court reiterated this point in Powell v. Texas,

392 U.S. 514 (1968):

We cannot cast aside the centuries-long

evolution of the collection of interlocking and

overlapping concepts which the common law has

utilized to assess the moral accountability of an

individual for his antisocial deeds. The doctrines

of actus reus, mens rea, insanity, mistake,

justification, and duress have historically

provided the tools for a constantly shifting

adjustment of the tension between the evolving

aims of the criminal law and changing religious,

moral, philosophical, and medical views of the

nature of man. This process of adjustment has

always been thought to be the province of the

States.

Id. at 535-36 (opinion of Marshall, J.); see also id. at

545-46 (Black, J., concurring) (explaining that “to

impose constitutional and doctrinal rigidity” with

regard to insanity “seems absurd in an area where our

understanding is even today so incomplete”).

And in Clark, after explaining that history shows no

deference to the M’Naghten test, the Court held “that

the insanity rule, like the conceptualization of criminal

offenses, is substantially open to state choice,”

particularly given the complex medical questions

involved. 548 U.S. at 752-53 (“For medical definitions

devised to justify treatment, like legal ones devised to

excuse from conventional criminal responsibility, are

subject to flux and disagreement.”).

Thus, States have the “freedom to determine

whether, and to what extent, mental illness should

excuse criminal behavior.” Foucha v. Louisiana, 504

U.S. 71, 88-89 (1992) (O’Connor, J., concurring) (“The

Court does not indicate that States must make the

insanity defense available.”). Nothing in our history or

tradition undermines this view.

In light of these cases, a leading treatise on criminal

law declares that “state legislatures are seemingly not

barred by the federal constitution from abolishing the

insanity defense, as long as the defendant is entitled to

a mens rea ‘defense.’” Joshua Dressler, Understanding

Criminal Law, 340 (2018) (8th ed.). This conclusion is

buttressed by the fact that this Court has never held

that the Constitution prohibits States from adopting

strict liability crimes. See, e.g., United States v. Freed,

401 U.S. 601, 607 (1971). Thus, “it would seem to follow

that a state may take the less drastic approach of

retaining the element of mens rea, while repealing the

defense of insanity, as long as the prosecution is

required to prove beyond a reasonable doubt that the

defendant had the requisite mental state.” Dressler,

Understanding Criminal Law at 340.

The criminal responsibility of the mentally ill is

subject to continuing debate by policymakers and

scholars. “There being such fodder for reasonable

debate about what the cognate legal and medical tests

should be, due process imposes no single canonical

formulation of legal insanity.” Clark, 548 U.S. at 753.

Attempting to constitutionalize these matters would

be a radical shift in this Court’s jurisprudence. And it

would draw this Court into a quagmire of difficult

questions, such as the meaning of “wrong,” whether

general awareness of right and wrong is sufficient (as

opposed to knowledge of the wrongfulness of the

specific conduct in question), and what specific mental

diseases or defects trigger a right to the defense. This

Court has wisely left such matters to the States.

C. Kansas has reasonably determined that

individuals who voluntarily and

intentionally commit a crime are

blameworthy, even if they do not believe

their actions are wrong.

Kahler argues that those who are morally blameless

should be exempted from criminal liability, but that

begs the question of who is morally blameless. That is

a question the States should have freedom to address.

See Powell, 392 U.S. at 545 (Black, J., concurring)

(“The legislatures have always been allowed wide

freedom to determine the extent to which moral

culpability should be a prerequisite to conviction of a

crime.”).

1. Kansas has reasonably determined that

individuals who voluntarily and intentionally kill

another human being are culpable, even if they do not

recognize their actions are wrong. Of course, the extent

of their culpability may still be relevant in determining

the appropriate punishment. See Kan. Stat. Ann. § 216815(c)(1)(C); Kan. Stat. Ann. § 21-6625(a)(6).

The fact that someone does not understand that

what they are doing is morally wrong does not render

them blameless. After all, terrorists who kill in the

name of religion may sincerely believe that their

conduct is morally justified or even morally required.

But few Americans would consider someone like Osama

bin Laden to be morally blameless. The same is true of

individuals who murder abortion doctors, believing

that their actions are morally justified because they are

saving the lives of the unborn. See, e.g., State v. Roeder,

336 P.3d 831, 838-39, 844-46 (Kan. 2014) (murder of

Dr. George Tiller). There are many other scenarios—

involving everyone from white supremacists to

euthanasia doctors—where people commit crimes

believing that their actions are morally justified. But

they are still culpable.

Kahler will no doubt respond that his proposed rule

only applies to those who do not know their actions are

wrong because of mental illness, but this response is

wholly unsatisfactory. First, it is not inconceivable that

many individuals whose religious, philosophical, or

racist beliefs are so strong that they believe murder is

morally justified suffer from some degree of mental

illness.

More fundamentally, it is not clear why mental

illness should be treated differently than other factors

that influence human behavior. The common argument

seems to be that severe mental illness can deprive a

person of free choice, but there are at least two

problems with this argument. “First, it makes the

assumption that whether or not someone is responsible

for his acts is a yes/no question, when obviously it is on

a continuum and poses a difficult question of

linedrawing.” Norval Morris, Should the Insanity

Defense Be Abolished: An Introduction to the Debate, 1

J.L. & Health 113, 121 (1986); see also Morris, Madness

and the Criminal Law at 61 (“[I]n states of

consciousness neither polar condition exists.”). Kansas

law requires a voluntary act as well as mens rea, so

some degree of choice is required for criminal liability.

Second, this argument assumes “that defects in a

person’s ability to choose are to be given a larger

exculpatory effect than all other pressures on human

behavior. It assumes that the psychotic is more morally

innocent than the person gravely sociologically

deprived and pressed towards criminality. The validity

of that assumption is questionable.” Morris, 1 J.L. &

Health at 121; see also Morris, Madness and the

Criminal Law at 63 (“Social adversity is grossly more

potent in its pressure toward criminality . . . than is

any psychotic condition.”). “[W]hile some people do

seem to have more difficulty choosing the right

behavior than others, determining who has the most

difficulty is probably impossible,” and even if it could be

done “it is unlikely that serious mental illness or

irrationality would provide the right dividing line.”

Slobogin, 86 Va. L. Rev. at 1238.

Even when it comes to mentally ill offenders,

knowledge of wrongfulness is not recognized as

necessary for moral blame. Otherwise psychopaths,

who are often excluded from the insanity defense,

would be considered morally blameless. See

Christopher Slobogin, A Defense of the Integrationist

Test as a Replacement for the Special Defense of

Insanity, 42 Tex. Tech. L. Rev. 523, 525-26 (2009)

(“[T]he paradigmatic example of an offender who

cannot emotionally appreciate the wrongfulness of his

act is the psychopath, who is incapable of empathy and

remorse.”). Yet, “[o]utside of philosophy departments,

virtually no one is willing to excuse these individuals,

who occupy between 20-30% of the prison cells in this

country and are often viewed as evil incarnate.” Id.

The same is true even with respect to people

suffering from psychosis. These people, “like people

who are not mentally ill, often commit crimes out of

anger, frustration, jealousy, and hate. They should not

be excused simply because they have a particular

diagnosis, a confused thought process, or

‘uncorrectable’ perceptions about the world.” Id. at 536

(“John Hinckley, Ted Kaczynski, and Charles Manson

all had schizophrenia and all were highly delusional at

times, with fixed false beliefs about their situation. Yet

none of these people should have been excused.”).

Finally, Kahler and his amici cite several religious

sources to argue that knowledge of good and evil is

required for moral culpability. Pet. Br. at 12, 18-20. Of

course, it is not the role of this Court to determine what

is true in matters of religion. But to the extent those

religious-based arguments are relevant, there is a wellfounded theological basis to believe that those who do

evil are morally blameworthy even when they do not

personally recognize that their actions are evil. See,

e.g., Isaiah 5:20 (“Woe to those who call evil good and

good evil . . . .”); Augustine, On Free Will, in Augustine:

Earlier Writings, 202-03 (J.H.S. Burleigh ed., 2006)

(“All that a man does wrongfully in ignorance, and all

that he cannot do rightly though he wishes, are called

sins because they have their origin in the first sin of

the will when it was free.”). While the theological

debate is beyond the scope of this brief—and the role of

this Court—to resolve, suffice it to say that theological

views on the moral culpability of those who do not

recognize their actions are wrong are not as one-sided

as Kahler suggests.

2. Just as knowledge that one’s conduct is morally

wrong is not required for culpability, neither is

knowledge of its criminality. After all, it is a

longstanding principle that knowledge of the law is not

required for criminal culpability. See, e.g., McFadden v.

United States, 135 S. Ct. 2298, 2304 (2015). Society

frequently punishes people who may not have known

that their actions were criminal. Kansas has

reasonably determined that there is no basis for

creating an exception to this general principle for a

certain subset of the mentally ill.

Indeed, the judges in M’Naghten contradicted

themselves on this issue. They explained that a

delusional person is nevertheless punishable “if he

knew at the time of committing such crime he was

acting contrary to law; by which expression we

understand your Lordships to mean the law of the

land.” 8 Eng. Rep. at 722. But in addressing how the

jury was to be instructed, the judges insisted on the

ambiguous term “wrong” because a term like “criminal”

“might tend to confound the jury, by inducing them to

believe that an actual knowledge of the law of the land

was essential in order to lead to a conviction; whereas

the law is administered upon the principle that

everyone must be taken conclusively to know it.” Id. at

723.

Neither knowledge that conduct is morally wrong

nor knowledge that it is criminal is necessary for

criminal culpability.

3. In any event, the concern about moral

blamelessness is certainly not present here. Twelve

members of the jury, who were free to consider any

mental health evidence or arguments that Kahler

wished to present, concluded that Kahler should be

sentenced to death for the four callous murders. They

would not have reached that conclusion if Kahler were

morally blameless.

II.

Kansas’s Mens Rea Approach to Insanity

Does Not Violate the Eighth Amendment.

In his briefs before the Kansas Supreme Court,

Kahler did not argue that Kansas’s mens rea approach

to insanity violates the Eighth Amendment. As a

result, the Kansas Supreme Court did not address this

issue. Thus, Kahler’s Eighth Amendment claim is not

properly before this Court. Br. in Opp. at 20-21. The

argument lacks merit in any event.

A. Kahler’s Eighth Amendment claim is not

properly before this Court.

This Court has routinely refused to consider issues

not raised or addressed below. In cases arising from

state courts, this Court has expressed inconsistent

views on whether this rule is jurisdictional or merely

prudential. See Yee v. City of Escondido, California,

503 U.S. 519, 533 (1992); Illinois v. Gates, 462 U.S.

213, 218-19 (1983). The better view is that this rule is

jurisdictional. As Justice Story explained in Crowell v.

Randell, 35 U.S. 368, 392 (1836), the rule is properly

characterized as jurisdictional based on the language

of the 1789 Judiciary Act provision that is now codified,

as amended, at 28 U.S.C. § 1257(a). As relevant here,

this statute only gives this Court jurisdiction over state

court judgments where a state law “is drawn in

question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States” or

where a right is “specially set up or claimed” under

federal law. If a federal issue is not “drawn into

question” or “specially set up or claimed” before a state

court of last resort, this Court has no jurisdiction to

review a decision of that court under 28 U.S.C.

§ 1257(a).

Kahler’s arguments that he preserved his Eighth

Amendment claim are unpersuasive. Kahler’s brief

before the Kansas Supreme Court challenged Kansas’s

mens rea approach solely on due process grounds. See

Brief of Appellant, State v. Kahler, 410 P.3d 105 (2018)

(No. 106981), 2013 WL 3790736 at *41-47 (Issue IV).

He did make a separate argument that the Eighth

Amendment prohibits the death penalty for individuals

who were severely mentally ill at the time of their

crime, but that is different than the Eighth

Amendment claim he is raising now. After oral

argument, Kahler also filed a “Motion to Supplement

Oral Argument” to clarify his Eighth Amendment

claim, but even then his argument was limited to the

constitutionality of the death penalty, not Kan. Stat.

Ann. § 22-3220. Cert. Reply Add. 18-19. Kahler never

argued that Kansas’s mens rea approach to insanity

violates the Eighth Amendment, nor did the Kansas

Supreme Court understand him to be making such a

claim, as demonstrated by the fact that its opinion

addressed only due process. J.A. 208, 242-45.

Because this Court is “a court of review, not of first

view,” Byrd v. United States, 138 S. Ct. 1518, 1527

(2018), it should refuse to consider this issue,

regardless of whether the rule is jurisdictional or

prudential.

B. Convicting those who voluntarily and

intentionally kill others, even if they do

not recognize their actions are wrong, is

not cruel and unusual.

Kahler’s Eighth Amendment claim also fails on the

merits.

1. As an initial matter, the Eighth Amendment

only applies to bar certain punishments; it does not

constrain the substance of state criminal liability,

including what affirmative defenses States must make

available. The text of the Amendment itself

demonstrates that it is concerned with “cruel and

unusual punishments.” (Emphasis added). This is

consistent with the history of the provision. See

Harmelin v. Michigan, 501 U.S. 957, 966-84 (1991)

(opinion of Scalia, J.). Likewise, this Court’s Eighth

Amendment jurisprudence forbids “modes or acts of

punishment that had been considered cruel and

unusual at the time that the Bill of Rights was

adopted,” Ford v. Wainwright, 477 U.S. 399, 405 (1986)

(emphasis added), or that are excessive in light of

“evolving standards of decency,” Miller v. Alabama, 567

U.S. 460, 470 (2012). Here, Kahler is not complaining

that his particular punishment is unconstitutional; he

is arguing that the Eighth Amendment prevents his

conviction in the first place.

Expanding the Eighth Amendment to address

matters such as affirmative defenses to criminal

liability would also draw this Court into a much more

active supervision of States’ ability to define crimes and

defenses, which this Court has traditionally left to the

States. See Clark, 548 U.S. at 749. For instance, a

majority of States have enacted “stand-your-ground”

laws that authorize the use of self-defense with no duty

to retreat. This consensus is more robust than many of

those this Court has relied on to restrict the application

of the death penalty. So under Kahler’s theory about

“evolving standards of decency,” the Eighth

Amendment would mandate a stand-your-ground

defense. But the Eighth Amendment no more mandates

that result than it mandates a form of the right-andwrong insanity defense.

Kahler relies on Robinson v. California, 370 U.S.

660 (1962), to argue that the Eighth Amendment

extends beyond punishment. Pet. Br. at 29. Robinson

is something of an anomaly in this Court’s Eighth

Amendment jurisprudence, but it has nothing to do

with the issue here. All Robinson held is that it is

unconstitutional to convict someone of a crime solely

based on their condition, circumstance, or status, as

opposed to their actions. 370 U.S. at 666. As the

plurality explained in Powell, in refusing to extend

Robinson to laws that prohibit public intoxication: “The

entire thrust of Robinson’s interpretation of the Cruel

and Unusual Punishment Clause is that criminal

penalties may be inflicted only if the accused has

committed some act, has engaged in some behavior, . . .

or perhaps in historical common law terms, has

committed some actus reus.” 392 U.S. at 533 (opinion

of Marshall, J.). Here, Kahler’s convictions were based

on his conduct, not his status.

2. Even if the Eighth Amendment did apply here,

the mens rea approach to insanity would not have been

considered cruel and unusual at the time of the

Founding. As discussed earlier, insanity was

historically equated with a lack of mens rea. Indeed,

the right-and-wrong test did not fully develop until the

Nineteenth Century, and even then, it has continued to

be the subject of much debate.

3. Nor is the mens rea approach inconsistent with

any of the criminal law purposes that Kahler identifies:

retribution, deterrence, incapacitation, and

rehabilitation. These are not the only purposes of the

criminal law. See Paul J. Larkin, Jr. & GianCarlo

Canaparo, Are Criminals Bad or Mad?—Premeditated

Murder, Mental Illness, and Kahler v. Kansas, 43

Harv. J. L & Pub. Pol’y (forthcoming 2020), available at

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=

3426522. But they suffice to show the constitutionality

of Kansas’s approach to insanity.

a. Kansas has reasonably determined that

individuals who voluntarily and intentionally kill

another human being are not entirely blameless, even

if they do not recognize that their actions are wrong.

See supra Part I.C. Criminal punishment therefore

serves the purpose of retribution. Of course, an

offender’s mental illness may impact the extent of their

culpability and is a valid consideration in sentencing.

But here, a jury considered Kahler’s culpability and

determined that he should be sentenced to death. That

sentence has the potential to make Kahler “recognize

at last the gravity of his crime and to allow the

community as a whole, including the surviving family

and friends of the victim[s], to affirm its own judgment”

as to his culpability. See Panetti v. Quarterman, 551

U.S. 930, 958 (2007).

The cases Kahler cites on this score are simply not

on point. They address individuals who are severely

mentally ill at the time of execution and therefore may

not understand why they are being put to death. Pet.

Br. at 33 (citing Panetti and Ford, 477 U.S. at 409). But

Kahler has made no argument that he is currently

insane.

Kahler’s intentional and premeditated murder of

four human beings renders him worthy of punishment,

whether or not he subjectively believed the killings

were morally justified.

b. There is no proof that mentally ill individuals

who voluntarily and intentionally commit crimes—

particularly those who, like Kahler, kill with

premeditation—are categorically incapable of being

deterred. Just because a person believes that a crime

would be morally justified does not mean that the

threat of criminal punishment would never deter that

person from committing it. Even when individuals

believe a crime is morally required, the fact that they

will be punished may still discourage them from acting.

For mentally ill individuals who have committed a

crime and will someday reenter society, criminal

punishment may also deter them from committing

additional crimes in the future. Even if they did not

recognize that their previous crime was wrong at the

time, punishment can help them come to understand in

retrospect that what they did was wrong and enable

them to avoid repeating the crime. Exonerating them

would send the opposite message and undermine their

ability to distinguish right from wrong in the future.

Criminal punishment may also deter other mentally

ill individuals. The existence of an affirmative insanity

defense may cause those with mental illness to believe

that they can commit crimes without suffering

punishment. See H.L.A. Hart, Punishment and

Responsibility: Essays in the Philosophy of Law, 43

(1968) (“It may very well be that, if the law contained

no explicit exemptions from responsibility on the score

of . . . insanity, many people who now take a chance in

the hope that they will bring themselves, if discovered,

within these exempting provisions would in fact be

deterred.”). This is a particular concern given the

inaccurate but widely held view that insanity is a

commonly successful defense.

Individuals who act knowingly and voluntarily have

the potential to be deterred, and Kansas’s mens rea

approach serves this purpose.

c. While civil commitment may serve the purpose

of incapacitation, criminal punishment is equally if not

more capable of achieving this goal. Trying to predict

someone’s future dangerousness, especially someone

who has been held in a secure environment and is now

being considered for release into the community, can be

exceedingly difficult. This is particularly true when it

comes to individuals who have been receiving

treatment and medication while confined but may not

continue when released. A fixed sentence guarantees

that someone will not commit additional crimes in the

community while incarcerated. This, after all, is the

norm when it comes to criminal punishment:

imprisonment is justified on incapacitation grounds

based on the past crime without a continued

assessment of ongoing dangerousness.

Kahler’s suggestion that criminal punishment is too

limited to serve the purpose of incapacitation is

puzzling. If a mentally ill person being released from

prison remains a danger, that person may be civilly

committed at the time, just as under Kahler’s preferred

scheme. But when it comes to protecting the

community, criminal punishment, combined with

treatment during the sentence of imprisonment and

the potential of post-release civil confinement when

necessary, is more effective than pure civil

commitment.

d. Nor is criminal punishment any less likely to

serve the purpose of rehabilitation. Severely mentally

ill individuals who are convicted can receive

appropriate mental health treatment while

incarcerated. In fact, Kansas statutes specifically

provide that a trial court may commit a defendant

convicted of a felony to a mental institution in lieu of

imprisonment. Kan. Stat. Ann. § 22-3430. And

individuals who are sent to prison but require mental

health treatment may be transferred to the state

mental hospital. See Kan. Stat. Ann. §§ 75-5209; 761305.

Thus, a criminal conviction does not preclude

rehabilitation for those who (unlike Kahler) will one

day be released. In fact, it may actually assist

rehabilitation. Mental health professionals sometimes

report that individuals found not guilty by reason of

insanity “refuse to admit they have done anything

wrongful; this refusal is said to inhibit treatment,

which is usually premised on an acceptance of

responsibility.” Slobogin, 86 Va. L. Rev. at 1245. The

criminal process may help some mentally ill

individuals come to understand that their actions were

wrong, even if they did not realize it at the time.

4. Nor do “evolving standards of decency”

undermine the mens rea approach. The “Eighth

Amendment is not violated every time a State reaches

a conclusion different from a majority of its sisters over

how best to administer its criminal laws.” Harris v.

Alabama, 513 U.S. 504, 510 (1995) (quoting Spaziano

v. Florida, 468 U.S. 447, 464 (1984)). In fact,

constitutionalizing a particular criminal law standard

based on the majority approach would impede future

evolution of the law. This should be of particular

concern in the complex and ever developing area of

insanity. As Justice Thurgood Marshall explained,

“formulating a constitutional rule [for insanity] would

reduce, if not eliminate, that fruitful experimentation,

and freeze the developing productive dialogue between

law and psychiatry into a rigid constitutional mold.”

Powell, 392 U.S. at 536-37 (opinion of Marshall, J.).

There is reason to believe that the mens rea

approach, despite its long history, is actually more

“evolved” than the special, affirmative defense of

insanity. An affirmative insanity defense can create a

stigma that mentally ill individuals are dangerous.

“Some have plausibly argued that the insanity defense,

by drawing a direct connection between mental illness

on the one hand and crime and nonresponsibility on the

other, bears much of the blame for these discriminatory

attitudes.” See Slobogin, 86 Va. L. Rev. at 1244.

Perhaps for this reason, the Convention on the Rights

of Persons with Disabilities calls for elimination of the

special defense of insanity and for its replacement with

“disability-neutral doctrines on the subjective element

of the crime. . . , which take into consideration the

situation of the individual defendant.” U.N. SecretaryGeneral & High Commissioner for Human Rights,

Human Rights Council, Thematic Study by the Office of

United Nations High Commissioner for Human Rights

on Enhancing Awareness and Understanding of the

Convention on the Rights of Persons with Disabilities,

¶ 47, U.N. Doc. A/HRC/10/48 (Jan. 26, 2009).

The mens rea approach treats mentally ill

individuals as equal to other human beings—excusing

them when they involuntarily commit a crime but

punishing them when they act knowingly or

intentionally. Like everyone else, their individual

culpability is still relevant in sentencing, and they can

receive treatment and rehabilitation while serving

their sentence. This approach is not cruel and unusual.

III.

Even if Some Version of the Right-andWrong Test Were Required, the Failure to

Allow that Defense Here Was Harmless.

Even under the right-and-wrong test he claims is

constitutionally required, Kahler is not insane, and so

the failure to allow an insanity defense based on that

test was harmless. See Br. in Opp. at 22-23 (arguing

that certiorari should be denied for this reason). There

is no possibility that different instructions to the jury

would have led to a different outcome. See Neder v.

United States, 527 U.S. 1, 9 (1999) (“We have often

applied harmless-error analysis to cases involving

improper instructions . . . .”).

Kahler’s own expert, Dr. Peterson, was unable to

conclude that Kahler was insane at the time of the

crime. His report states: “Diminished Capacity

(extreme emotional disturbance), not NGRI [Not Guilty

by Reason of Insanity], describes his actions.” J.A. 94.

Dr. Peterson never testified that Kahler could not

appreciate the wrongfulness of his conduct. ROA Vol.

38, 42-78. Instead, his opinion only related to lack of

control. J.A. 48-49 (“[H]e wasn’t psychotic that I could

tell, he wasn’t hearing voices, but his capacity to

manage his own behavior had been severely degraded

so that he couldn’t refrain from doing what he did.”). At

most, this evidence is relevant only to a volitional test

of insanity, which Kahler acknowledges is not

constitutionally required. See Pet. Br. at 37. Nothing in

the record indicates that Kahler was unable to

distinguish right from wrong.

There was absolutely no limitation on Kahler’s

ability to present mitigating evidence, including

evidence of insanity, at the penalty phase. The jury was

even instructed that Kahler’s capacity “to appreciate

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

conduct to the requirements of law was substantially

impaired” was a potential mitigating factor. J.A. 195.

Yet the jury chose to sentence Kahler to death. This

establishes the jury found Kahler morally culpable for

his actions. There is no reason to believe that the jury

would have reached a different verdict if Kahler had

presented the insanity defense he now seeks.

If Kahler had any evidence to suggest that he

lacked an appreciation of right and wrong, Kansas law

required him to proffer that evidence to preserve his

argument. Kan. Stat. Ann. § 60-405. He did not do so.

This is a strong indication that Kahler has no evidence

to support such a defense.

To the contrary, Kahler’s conduct indicates that he

was not insane. He drove an hour to the crime scene

and parked his car near a neighbor’s house so he could

approach by foot, giving him the ability to observe and

surprise his intended targets. After bursting into the

house with a high-powered rifle, he chose to spare his

son, with whom he had a close relationship. He chose

to methodically hunt and kill his estranged wife, his

daughters (who he believed had taken their mother’s

side in the divorce), and his estranged wife’s

grandmother. Every shot he took hit his intended

target. He then fled the scene, evaded police, and hid

the murder weapon.

Kahler’s calculated decisions were not the acts of an

insane man. He is a cold-blooded, callous murderer of

four innocent victims who a Kansas jury rightfully

condemned.

CONCLUSION

The judgment of the Kansas Supreme Court should

be affirmed.

Respectfully submitted,

DEREK SCHMIDT

Attorney General of Kansas

JEFFREY A. CHANAY

Chief Deputy Attorney General

TOBY CROUSE

Solicitor General of Kansas

(Counsel of Record)

KRISTAFER AILSLIEGER

BRANT M. LAUE

Deputy Solicitors General

DWIGHT R. CARSWELL

NATALIE CHALMERS

RACHEL L. PICKERING

Assistant Solicitors General

120 S.W. 10th Ave., 2nd Floor

Topeka, KS 66612

(785) 296-2215

toby.crouse@ag.ks.gov

Counsel for Respondent

State of Kansas

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.