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

No. 18-6135

In the Supreme Court of the United States

__________________

JAMES KRAIG KAHLER,

Petitioner,

v.

STATE OF KANSAS,

Respondent.

__________________

On Writ of Certiorari to the

Supreme Court of the State of Kansas

__________________

BRIEF OF AMICI CURIAE STATES OF UTAH,

ALABAMA, ALASKA, ARKANSAS, FLORIDA,

GEORGIA, IDAHO, INDIANA, LOUISIANA,

MISSOURI, MONTANA, NEBRASKA, OHIO,

OKLAHOMA, SOUTH CAROLINA, AND TEXAS

SUPPORTING RESPONDENT

__________________

SEAN D. REYES

Utah Attorney General

TYLER R. GREEN*

Utah Solicitor General

THOMAS B. BRUNKER

Deputy Solicitor General

ANDREW F. PETERSON

Assistant Solicitor General

350 N. State Street, Suite 230

Salt Lake City, UT 84114-2320

Telephone: (801) 538-9600

Email: tylergreen@agutah.gov

*Counsel of Record

Counsel for Amicus Curiae

State of Utah

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

i

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

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

I.

THE DUE PROCESS CLAUSE DOES NOT REQUIRE

STATES’ CRIMINAL LAWS TO ADOPT A PARTICULAR

THEORY OF MORAL CULPABILITY. . . . . . . . . . . . . . 4

A. The States have always had broad sovereign

power to define crimes, which entails

normative judgments about what counts as

culpable conduct. . . . . . . . . . . . . . . . . . . . . . . . 4

B. Moral capacity is not a constitutional

prerequisite to imposing criminal liability. . . 6

1. The historical record shows that moral

capacity never has been a uniform part of

the insanity defense. . . . . . . . . . . . . . . . . . 7

2. States today routinely impose criminal

liability irrespective of an accused’s moral

capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Constitutionalizing a moral capacity defense

would commit the Court to substantial

policymaking and produce troubling

consequences.. . . . . . . . . . . . . . . . . . . . . . . . . 19

II. THE EIGHTH AMENDMENT DOES NOT REQUIRE A

MORAL CAPACITY DEFENSE. . . . . . . . . . . . . . . . . 23

ii

A. Petitioner did not press, and the Kansas

Supreme Court did not pass upon, his new

Eighth Amendment claim. . . . . . . . . . . . . . . 23

B. Nothing in this Court’s Eighth Amendment

precedent requires States to provide an

insanity defense. . . . . . . . . . . . . . . . . . . . . . . 26

C. There is no genuine national consensus that

moral capacity is a necessary predicate to

criminal liability.. . . . . . . . . . . . . . . . . . . . . . 28

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

iii

TABLE OF AUTHORITIES

CASES

Adams v. Robertson,

520 U.S. 83 (1997). . . . . . . . . . . . . . . . . . . . . 23, 24

Arnold’s Case,

16 How. St. Tr. 596 (1724) . . . . . . . . . . . . . . . . . 15

Atkins v. Virginia,

536 U.S. 304 (2002). . . . . . . . . . . . . . . . . 23, 27, 29

Brecht v. Abrahamson,

507 U.S. 619 (1993). . . . . . . . . . . . . . . . . . . . . . . . 4

Cardinale v. Louisiana,

394 U.S. 437 (1969). . . . . . . . . . . . . . . . . . . . . . . 25

Clark v. Arizona,

548 U.S. 735 (2006). . . . . . . . . . . . . . . . . . . . . 7, 26

Durham v. United States,

214 F.2d 862 (D.C. Cir. 1972). . . . . . . . . . . . . . . . 9

Eddings v. Oklahoma,

455 U.S. 104 (1982). . . . . . . . . . . . . . . . . . . . . . . 27

Finger v. Nevada,

27 P.3d 66 (Nev. 2001) . . . . . . . . . . . . . . . . . . . . 29

Graham v. Florida,

560 U.S. 48 (2010). . . . . . . . . . . . . . . . . . . . . 27, 28

Gundy v. United States,

139 S. Ct. 2116 (2019). . . . . . . . . . . . . . . . . . . . . . 6

Hadfield’s Case,

27 State Trials 1281 (1800) . . . . . . . . . . . . . . . . . 9

iv

Hall v. Florida,

572 U.S. 701 (2014). . . . . . . . . . . . . . . . . . . . . . . 23

Harmelin v. Michigan,

501 U.S. 957 (1991). . . . . . . . . . . . . . . . . . . . . . . 28

Hentzner v. State,

613 P.2d 821 (Ala. 1980). . . . . . . . . . . . . . . . . . . 17

Illinois v. Gates,

462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . 25, 26

Jerome v. United States,

318 U.S. 101 (1943). . . . . . . . . . . . . . . . . . . . . . . 16

Jones v. United States,

463 U.S. 354 (1983). . . . . . . . . . . . . . . . . . . . . . . . 5

Jordan v. De George,

341 U.S. 223 (1951). . . . . . . . . . . . . . . . . . . . . . . 17

Lambert v. California,

355 U.S. 225 (1957). . . . . . . . . . . . . . . . . . . . . . . 18

Leland v. Oregon,

343 U.S. 790 (1952). . . . . . . . . . . . . . . . . . . . . 5, 26

Lockett v. Ohio,

438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . . . . . 27

McCleskey v. Zant,

499 U.S. 467 (1991). . . . . . . . . . . . . . . . . . . . . . . . 4

McGoldrick v. Compagnie Generale,

309 U.S. 430 (1940). . . . . . . . . . . . . . . . . . . . . . . 26

Miller v. Alabama,

567 U.S. 460 (2012). . . . . . . . . . . . . . . . . 27, 29, 30

v

Montana v. Egelhoff,

518 U.S. 37 (1996). . . . . . . . . . . . . . . . . . . . 7, 8, 26

Moore v. State,

574 S.W.2d 122 (Tex. Crim. App. 1978). . . . . . . 18

Morissette v. United States,

342 U.S. 246 (1952). . . . . . . . . . . . . . . . . . . . . . . 17

Oregon v. Ice,

555 U.S. 160 (2009). . . . . . . . . . . . . . . . . . . . . . . . 1

Palko v. Connecticut,

302 U.S. 319 (1937). . . . . . . . . . . . . . . . . . . . . . . . 7

Parsons v. State,

2 So. 854 (Ala. 1887) . . . . . . . . . . . . . . . . . . . . . . . 9

Patterson v. New York,

432 U.S. 197 (1977). . . . . . . . . . . . . . . . . . . 1, 7, 26

Penry v. Lynaugh,

492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . 27, 28

People v. Conway,

849 N.E.2d 954 (N.Y. Ct. App. 2006) . . . . . . . . . 18

People v. Lyttle,

408 N.Y.S.2d 578 (Co. Ct. 1976) . . . . . . . . . . . . . 19

People v. Matthews,

7 Cal. App. 4th 1052 (1992) . . . . . . . . . . . . . . . . 17

Powell v. Texas,

392 U.S. 514 (1968). . . . . . . . . . . . . . . . . . . . . . 5, 6

Roper v. Simmons,

543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . . 27, 28

vi

Santillanes v. State,

849 P.2d 358 (N.M. 1993) . . . . . . . . . . . . . . . . . . 18

State v. Glass,

620 N.W.2d 146 (N.D. 2000). . . . . . . . . . . . . . . . 17

State v. Pike,

49 N.H. 399 (1870) . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Yanez,

716 A.2d 759 (R.I. 1998) . . . . . . . . . . . . . . . . . . . 17

Trop v. Dulles,

356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Antone,

742 F.3d 151 (4th Cir. 2014). . . . . . . . . . . . . . . . 22

United States v. Currens,

290 F.2d 751 (3d Cir. 1961) . . . . . . . . . . . . . . . . 10

United States v. Freed,

401 U.S. 601 (1971). . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Gay,

522 F.2d 429 (6th Cir. 1975). . . . . . . . . . . . . . . . 21

Wade v. United States,

426 F.2d 64 (9th Cir. 1970). . . . . . . . . . . . . . . . . 21

Yee v. Escondido,

503 U.S. 519 (1992). . . . . . . . . . . . . . . . . 23, 24, 25

STATUTES

11 Del. Code § 401 . . . . . . . . . . . . . . . . . . . . . . . . . . 19

18 U.S.C. § 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

vii

21 U.S.C. § 333(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 17

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

720 Ill. Comp. Stat. 5/6-2 . . . . . . . . . . . . . . . . . . . . . 19

Alaska Stat. § 12.47.010(a) (1982). . . . . . . . . . . . . . 29

Colo. Rev. Stat. § 18-3-106 . . . . . . . . . . . . . . . . . . . . 17

Idaho Code Ann. § 18-207 (1986). . . . . . . . . . . . . . . 29

Idaho Code Ann. § 46-14-102 (1979) . . . . . . . . . . . . 29

Kan. Stat. Ann. § 22-3220 (2009) . . . . . . . 6, 7, 24, 25

Model Penal Code § 4.01 . . . . . . . . . . . . . . . . . . 19, 21

Mont. Code Ann. § 46-14-102 (1979) . . . . . . . . . . . . 29

Nev. Rev. Stat. § 193.220 (1995) . . . . . . . . . . . . . . . 29

Utah Code Ann. § 76-2-305(1) (1983) . . . . . . . . . . . 29

OTHER AUTHORITIES

AAPL Practice Guideline for Forensic Psychiatric

Evaluation of Defendants Raising the Insanity

Defense, 42 J. AM. ACAD. PSYCHIATRY & L. (2014

Supp.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

AMA, Reports of Council on Long Range Planning

and Dev. (June 2005) . . . . . . . . . . . . . . . . . . . . . 14

Susanna L. Blumenthal, LAW AND THE MODERN

MIND: CONSCIOUSNESS AND RESPONSIBILITY IN

AMERICAN LEGAL CULTURE (Harvard Univ. Press

2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 15

viii

Benjamin Cardozo, What Medicine Can Do for Law,

in LAW AND LITERATURE AND OTHER ESSAYS AND

ADDRESSES (1931) . . . . . . . . . . . . . . . . . . . . . . . . 10

Committee Report, Insanity Defense in Criminal

Trials and Limitation of Psychiatric Testimony,

251 J. AM. MED. ASS’N 2967 (1984) . . . . . . . 13, 14

COOLEY’S BLACKSTONE Vol. I (4th ed.) . . . . . . . . . . 17

John Elwell, A MEDICO-LEGAL TREATISE ON

M ALPRACTICE AND M EDICAL E VIDENCE :

COMPRISING THE ELEMENTS OF MEDICAL

JURISPRUDENCE (1860) . . . . . . . . . . . . . . . . . 12, 13

Federal Bureau of Investigation, Killed in the Line

of Duty: A Study of Selected Felonious Killings of

Law Enforcement Officers (1992) . . . . . . . . . . . . 22

Abraham S. Goldstein, THE INSANITY DEFENSE

(Yale Univ. Press 1967) . . . . . . . . . . . . . . . . . . . . 9

John P. Gray, Moral Insanity, in AM. J. OF INSANITY

14 (Apr. 1858) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gary Greenberg, Psychiatry’s Incurable Hubris,

THE ATLANTIC, Apr. 2019,

https://www.

theatlantic.com/magazine/archive/2019/04/mindfixers-anne-harrington/583228/ . . . . . . . . . . . . . . 6

Robert D. Hare, Psychopaths and Their Nature:

Implications for the Mental Health and Criminal

Justice System, in Millon et al.. . . . . . . . . . . . . . 21

HISTORIC U.S. COURT CASES: AN ENCYCLOPEDIA

(John W. Johnson ed., 2d ed. 2001) . . . . . . . . . . . 8

ix

Insanity Defense Work Group, American

Psychiatric Association Statement on the

Insanity Defense, 140 AM. J. PSYCHIATRY 681

(1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Mary Ann Jimenez, CHANGING FACES OF MADNESS:

EARLY AMERICAN ATTITUDES AND TREATMENT OF

THE INSANE (1987). . . . . . . . . . . . . . . . . . . . . . . . 16

Norval Morris, MADNESS AND THE CRIMINAL LAW

(1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

Stephen J. Morse & Morris B. Hoffman, The Uneasy

Entente Between Legal Insanity and Mens Rea:

Beyond Clark v. Arizona, 97 J. CRIM. L. &

CRIMINOLOGY 1071 (2007) . . . . . . . . . . . . . . 20, 21

Overholser,

Criminal Responsibility:

A

Psychiatrist’s Viewpoint, 48 A.B.A. J. 527 (1962)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Henry Richards, Evil Intent: Violence and Disorders

of the Will, in PSYCHOPATHY: ANTISOCIAL,

CRIMINAL, AND VIOLENT BEHAVIOR (T. Millon, E.

Simonsen, M. Birket-Smith, & R. D. Davis eds.,

1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Paul Robinson, 2 CRIM. L. DEF. § 173(d)(3) (1984) . 20

Benjamin Rush, MEDICAL INQUIRIES AND

OBSERVATIONS, UPON THE DISEASES OF THE

MIND (1812). . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Henry Weihofen, INSANITY AS A DEFENSE IN

CRIMINAL LAW (1933) . . . . . . . . . . . . . . . . . . . . . . 8

Wharton, CRIMINAL LAW § 26 (12th ed.) . . . . . . . . . 16

x

Francis Wharton, 1 WHARTON AND STILLÉ’S

MEDICAL JURISPRUDENCE (3d ed., 1873) . . . 11, 12

1

INTEREST OF AMICI CURIAE

“It goes without saying that preventing and dealing

with crime is much more the business of the States

than it is of the Federal government.” Patterson v. New

York, 432 U.S. 197, 201 (1977). Hence States prosecute

the vast majority of crimes in the country. And States

will bear the disproportionate weight of any

constitutional strictures the Court places on the

legislative prerogative to define moral and legal

culpability. In short, this case threatens to impinge

“the authority of States over the administration of their

criminal justice systems,” which “lies at the core of

their sovereign status.” Oregon v. Ice, 555 U.S. 160, 170

(2009).

In prior similar cases, the Court never has “lightly

construe[d] the Constitution so as to intrude upon the

administration of justice by the individual States.”

Patterson, 432 U.S. at 201. Amici urge the Court to

stay that course. Today’s increasingly pluralistic

society demands that States retain flexibility to adapt

their criminal laws to changing social, political, and

scientific conditions that affect them in view of their

unique democratic preferences and moral beliefs.

SUMMARY OF ARGUMENT

Neither the Due Process Clause nor the Eighth

Amendment requires the States to provide any

particular insanity defense to criminal liability.

I. The Constitution leaves almost exclusively to the

States the sovereign prerogative to define and enforce

the criminal law. The People do so through their

elected representatives, who make moral judgments

2

about blameworthiness by deciding which conduct

merits criminal liability.

In the more than two centuries of democratic

experimentation on those issues, no single theory of

blameworthiness excluding the insane from criminal

liability has gained such universal acceptance as to be

considered a component of due process.

And legislative activity today confirms that moral

culpability is not an essential prerequisite to imposing

criminal liability. American legislatures uniformly

impose strict or negligence criminal liability on huge

swaths of conduct without regard to its inherent

wrongfulness or the accused’s subjective appreciation

of its wrongfulness. Strict liability crimes like drunk

driving or statutory rape, and negligent homicide based

on a “reasonable person” standard, are familiar

examples of these new crimes by which legislatures

regulate and organize an increasingly complex political

and social economy. Thus, even in jurisdictions that use

some form of M’Naghten’s moral capacity test, a

defendant’s appreciation of right and wrong is not a

necessary precondition to imposition of criminal

liability.

A rule requiring a M’Naghten-like moral capacity

defense for defendants claiming insanity would result

in a quagmire of administrability problems. The

jurisdictions with such a test do not agree themselves

on its particulars, and adopting Petitioner’s preferred

rule without resolving those disputes would leave

courts and legislatures floundering. The lack of

apparent limiting legal principles for the defense also

demands consideration, lest psychiatry’s evolution

3

extend the defense to excuse crimes resulting from

conditions such as psychopathy.

II. The Eighth Amendment’s bar against cruel and

unusual punishments never has been interpreted to

require an affirmative defense, and it should not be so

interpreted here. While the Court has considered issues

of moral culpability to be relevant to the punishments

for certain classes of criminals, those moral culpability

cases do not draw into doubt the legitimate, predicate

power of the States to convict and impose some

punishment on those who commit crimes despite their

reduced moral capacity.

Neither has Petitioner shown a genuine national

consensus that punishment depends on moral capacity

in all circumstances. If the direction of change in the

nation’s laws is relevant, those changes break

overwhelmingly in Kansas’s direction. And the States

punish an ever-expanding universe of crimes with no

moral dimension at all for purposes of social and

economic regulation.

4

ARGUMENT

I.

THE DUE PROCESS CLAUSE DOES NOT REQUIRE

STATES’ CRIMINAL LAWS TO ADOPT A PARTICULAR

THEORY OF MORAL CULPABILITY.

A. The States have always had broad

sovereign power to define crimes, which

entails normative judgments about what

counts as culpable conduct.

Holding that the Due Process Clause requires

States to provide a M’Naghten-like moral capacity

defense would override the States’ sovereign authority

to decide what conduct is blameworthy.

“Our federal system recognizes the independent

power of a State to articulate societal norms through

criminal law.” McCleskey v. Zant, 499 U.S. 467, 491

(1991). In fact, since the Founding, “[t]he States [have]

possess[ed] primary authority for defining and

enforcing the criminal law.” Brecht v. Abrahamson, 507

U.S. 619, 635 (1993) (quotation marks and citation

omitted). When State legislatures discharge that core

sovereign function, they resolve complex and competing

policy considerations about moral culpability, societal

protection and regulation, and medical science. That

process perpetually continues; legislatures must hone

their criminal laws when society’s judgments about

those issues change.

States hone their criminal laws using well-worn

tools: 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

5

criminal law and changing religious, moral,

philosophical, and medical views of the nature of man.”

Powell v. Texas, 392 U.S. 514, 536 (1968) (plurality

op.). The “choice of a test of legal sanity” in particular

“involves not only scientific knowledge but questions of

basic policy as to the extent to which that knowledge

should determine criminal responsibility.” Leland v.

Oregon, 343 U.S. 790, 801 (1952).

Not so, in Petitioner’s view. Under his reading,

Powell and Leland erred on that score because the Due

Process Clause removes one tool from States’ toolbox:

M’Naghten’s moral capacity test, he claims, is a

uniform standard that freezes “into a rigid

constitutional mold” the balance the House of Lords

struck on the insanity question more than 160 years

ago. Powell, 392 U.S. at 537.

Petitioner’s contention conflicts with half a century

of this Court’s precedent recognizing how legislatures

rebalance their approaches to insanity based on new

science. Psychiatry, and its bearing on notions of

blameworthiness, is dynamic. See Leland, 343 U.S. at

800-01; id. at 803 (Frankfurter, J., dissenting); Powell,

392 U.S. at 536-37. Even now, scientific advances in

psychiatry continue; “[t]he only certain thing that can

be said about the present state of knowledge and

therapy regarding mental disease is that science has

not reached finality of judgment.” Jones v. United

States, 463 U.S. 354, 364 n.13 (1983). No final

judgment on these questions is likely to arrive soon.

After all, “[t]he pathological basis of almost all mental

disorders remains as unknown today as it was in

1886—unsurprising, given that the brain turns out to

6

be one of the most complex objects in the universe.”

Gary Greenberg, Psychiatry’s Incurable Hubris, THE

ATLANTIC, Apr. 2019, https://www.theatlantic.com/

m ag a zi n e / a r c h i v e / 2 0 1 9 / 0 4 / m i nd-fi x ers-a nneharrington/583228/. In short, “[i]t is simply [still] not

yet the time to write the Constitutional formulas” for

insanity “in terms whose meaning, let alone relevance,

[still] is not yet clear either to doctors or to lawyers.”

Powell, 392 U.S. at 537.

In any event, Petitioner’s contention is questionbegging. He argues that moral culpability is a

necessary precondition for criminal liability. But that

assertion reveals little because it does not answer what

counts as morally culpable. Popular sovereignty—the

baseline of democratic republicanism—allows the

People through their legislatures to decide for

themselves what is blameworthy. That very “process of

adjustment has always been thought to be the province

of the States,” Powell, 392 U.S. at 536—not of

philosophers, professors, or lawyers. And as discussed

below, Kansas’s decision to adjust its conception of

blameworthiness is a “distinctly small-bore” use of the

States’ historical sovereign control over their criminal

laws. Gundy v. United States, 139 S. Ct. 2116, 2130

(2019) (plurality op.).

B. Moral capacity is not a constitutional

prerequisite to imposing criminal liability.

Kansas has adopted the mens rea approach to the

insanity question. Kan. Stat. Ann. § 22-3220 (2009).

Under current precedent, that exercise of sovereign

power does not violate due process unless it “offends

some principle of justice so rooted in the traditions and

7

conscience of our people as to be ranked as

fundamental,” Patterson, 432 U.S. at 202 (internal

quotation marks omitted), or is “implicit in the concept

of ordered liberty,” Palko v. Connecticut, 302 U.S. 319,

325 (1937).

Petitioner argues that § 22-3220 offends a

“fundamental” principle because it provides no

“mechanism to excuse criminal defendants whose

mental states render them blameless,” and “moral

culpability” is “the essential prerequisite for criminal

punishment.” Pet’r Br. 12. That contention cannot be

reconciled with the historical record or with uniform

contemporary practice imposing criminal liability

irrespective of moral capacity.

1. The historical record shows that moral

capacity never has been a uniform part

of the insanity defense.

M’Naghten’s moral capacity standard has not

achieved “the uniform and continuing acceptance we

would expect for a rule that enjoys ‘fundamental

principle’ status.” Montana v. Egelhoff, 518 U.S. 37, 48

(1996) (plurality op.). Even “a cursory examination of

the traditional Anglo–American approaches to insanity

reveals significant differences among them, with four

traditional strains variously combined to yield a

diversity of American standards.” Clark v. Arizona, 548

U.S. 735, 749 (2006). That “varied background,”

including “the cognitive incapacity, the moral

incapacity, the volitional incapacity, and the productof-mental-illness tests,” already led this Court to

conclude “that no particular formulation has evolved

into a baseline for due process.” Id. at 749-52.

8

That conclusion—though correct, and sufficient

itself to resolve this case—politely understates the

morass that was pre-Founding and nineteenth century

insanity law.

a. America inherited from the English common law

various insanity tests. Those included the “right and

wrong” test eventually articulated in M’Naghten; the

“wild beast” test, which requires a total deprivation of

understanding and memory; and the “irresistible

impulse” test, which excuses a defendant if his mental

impairment made him unable to control his conduct.

See Henry Weihofen, INSANITY AS A DEFENSE IN

CRIMINAL LAW 20-24 (1933).

Many American jurisdictions eventually settled on

the M’Naghten test. But nothing suggests that they did

so because they thought M’Naghten’s moral-capacity

standard represented any principled or widely accepted

theory of human nature and its intersection with

established jurisprudence. Rather, many of them

seemed resigned to M’Naghten because it was

comparatively easy to administer—it represented a

“relatively simple set of standards” promulgated after

“a series of acquittals . . . and the resulting furor over

courts allowing juries to be ‘lenient’ toward criminals.”

HISTORIC U.S. COURT CASES: AN ENCYCLOPEDIA 54

(John W. Johnson ed., 2d ed. 2001).

More important, a rule cannot be a constitutionally

necessary ingredient of due process unless it has

achieved “uniform and continuing acceptance,”

Egelhoff, 518 U.S. at 48, and M’Naghten’s moral

capacity rule flunks that test. Compare, for instance,

the moral capacity rule to just one of its

9

competitors—the irresistible impulse test. The latter

“is at least as old as” M’Naghten, and it “often in the

past competed” with M’Naghten “for acceptance.”

Abraham S. Goldstein, THE INSANITY DEFENSE, 67

(Yale Univ. Press 1967). In the 1920s in particular, the

irresistible impulse test “enjoyed a considerable

renaissance” after “psychoanalytic psychology turned

to criminal law and found M’Naghten far too

rationalistic.” Id. The irresistible impulse test’s

“[e]mphasis on loss of control seemed much more

sensible” since “it was more ‘correct’ psychologically”

and “better comported with the other objectives of the

insanity defense.” Id.

Still different rules prevailed in other jurisdictions.

New Hampshire has relied on the “product of insanity”

formulation for 150 years. State v. Pike, 49 N.H. 399,

438 (1870). A similar rule gained currency for a time in

Durham v. United States, 214 F.2d 862 (D.C. Cir.

1972). Durham echoed an insanity formulation first

announced in Hadfield’s Case, 27 State Trials 1281

(1800).

What is more, courts and jurists have criticized the

M’Naghten rule since its inception. Shortly after the

Civil War, the Alabama Supreme Court stated that the

“‘right and wrong test,’ . . . it must be remembered,

itself originated with the medical profession, in the

mere dawn of the scientific knowledge of insanity, has

been condemned by the great current of modern medical

authorities, who believe it to be ‘founded on an ignorant

and imperfect view of the disease.’” Parsons v. State, 2

So. 854 (Ala. 1887) (citation omitted) (emphasis added).

Nearly fifty years later, a Member of this Court said

10

M’Naghten “has little relation to the truths of mental

life” and “palters with reality.” Benjamin Cardozo,

What Medicine Can Do for Law, in LAW AND

LITERATURE AND OTHER ESSAYS AND ADDRESSES 70,

106, 108 (1931).

More recently, the Third Circuit rejected M’Naghten

as “unworkable” and a “sham” and abolished the

defense until Congress reinstated it. United States v.

Currens, 290 F.2d 751 (3d Cir. 1961). In rejecting

M’Naghten, the court of appeals traced the moral

capacity test’s lineage to primitive and superstitious

roots in “the ancient book, written by William Lambard

of Lincolns Inn, Eirenarcha,” which formulated the test

as “knowledge of good or evil.” Id. at 764. “The

principles of law embodied in the volume were, of

course, typical of the thinking of the times,” including

“imposing severe penalties for injuries or death caused

by witchcraft.” Id. at 764-65.

b. It wasn’t just lawyers and judges who could not

agree on—and heavily criticized—M’Naghten’s moral

capacity rule. Disunity about legal insanity has long

existed in the medical and scientific communities too.

Consider Benjamin Rush, a signer of the

Declaration of Independence and the father of

American psychiatry. As both medical man and legal

reformer, he advocated a medicalized view of the

human psyche that separated it into both rational and

moral faculties, presaging M’Naghten’s moral capacity

test. See generally Benjamin Rush, MEDICAL INQUIRIES

AND OBSERVATIONS, UPON THE DISEASES OF THE MIND

(1812). But Rush acknowledged that his moral capacity

framework lacked administrable rules: “How far the

11

person whose diseases have been mentioned, should be

considered as responsible to human or divine laws for

their actions, and where the line should be drawn that

divides free agency from necessity, and vice from

disease, I am unable to determine.” Id. at 360.

Later, in the early nineteenth century, physicians

began a vast project of classifying all human behavior

under a psychiatric heading, creating categories such

as “monomania” and “moral insanity.” Susanna L.

Blumenthal, L AW AND THE M ODERN M IND :

CONSCIOUSNESS AND RESPONSIBILITY IN AMERICAN

LEGAL CULTURE 75 (Harvard Univ. Press 2016). Many

patients with those conditions had “supposed

symptoms . . . indistinguishable from crime; the first

and only indicator that a patient was afflicted with

monomanie homicide was often the act of murder

itself.” Id. Yet nothing about those conditions suggests

that scientists viewed moral capacity as integral to

each.

What followed in the antebellum decades, especially

before M’Naghten itself, was a dizzying period of

innovation among entrepreneurial doctors whose

“psychological models were at odds with the ‘philosophy

of intellect’ upon which Anglo-American jurisprudence

was based.” Id. at 87.

For example, in early editions of his monumental

treatise on medical jurisprudence, Francis Wharton

considered M’Naghten’s moral-capacity test to be an

appropriate expansion of the law of insanity. But by his

1873 edition, Wharton admitted that “it would be folly

to consider the question at rest.” Francis Wharton, 1

WHARTON AND STILLÉ’S MEDICAL JURISPRUDENCE § 120

12

(3d ed., 1873). This hesitation was partly

precedential—he surveyed over 800 appellate opinions

stating irreconcilable rules—and partly doctrinal. On

the latter, he considered the “right and wrong” test

underinclusive to “cover all the cases of legitimate

insane responsibility.” Id. § 121. For but one example,

Wharton explained that a mens rea approach to

insanity could exclude from criminal responsibility

some insane persons that the “right and wrong” test

could not. Id. § 131.

Psychiatrists shared Wharton’s skepticism of the

moral capacity defense. In 1858, Dr. John P. Gray

declared that the inability to appreciate right from

wrong was “the usual condition of those, who, in plain

speaking times, were called bad men.” John P. Gray,

Moral Insanity, in AM. J. OF INSANITY 14, 319-20 (Apr.

1858). Thus, one professor of medical jurisprudence,

John Elwell, considered psychiatrists’ various and

competing diagnoses not to warrant acquittal unless,

echoing the irresistible impulse test, the defendant was

“absolutely without the power of self-restraint.” John

Elwell, A MEDICO-LEGAL TREATISE ON MALPRACTICE

AND MEDICAL EVIDENCE: COMPRISING THE ELEMENTS OF

MEDICAL JURISPRUDENCE 404 (1860).

That bevy of newfound, unsettled, and competing

psychiatric theories fatally undermines any claim that

moral capacity always has been uniformly

indispensable to the defense of legal insanity. Instead,

the science’s broad variability allowed psychiatrists “to

underwrite capacity contests of every imaginable

variety” and “tended to occlude rather than illuminate”

“the distinction between insanity and mere depravity.”

13

Blumenthal at 86. The discord became so stark that

“[b]y the 1870’s, mental unsoundness had become an

‘embarrassing’ problem in American courtrooms,

producing obvious tensions between and among

medical experts and legal authorities that rose to the

notice of the general public.” Id. at 90.

The upshot of that unsettled science, and the

resulting legion approaches to legal insanity? “[N]o

general charge” should be “brought against the courts

for want of well-settled rules on this subject.” Elwell at

369 (emphasis added). Better instead if the Country

waited “until those learned men who have spent so

much time in the investigation of the disease, shall

have agreed upon something themselves, and

demonstrated its truth to the world; a result they

admit, as yet unattained.” Id. (emphasis added).

Further dooming Petitioner’s claim, we’re still

waiting for that result. Even today, “if anything can be

agreed upon about criminal insanity, it is that insanity

is a matter of some uncertainty.” Insanity Defense

Work Group, American Psychiatric Association

Statement on the Insanity Defense, 140 AM. J.

PSYCHIATRY 681, 685 (1983). In fact, the nation’s

leading medical associations continue to reverse course

on which rules should govern legal insanity. For

example, in the early 1980s, the American Medical

Association advocated for “the abolition of the special

defense of insanity in criminal trials, and its

replacement by statutes providing for acquittal when

the defendant, as a result of mental disease or defect,

lacked the state of mind (mens rea) required as an

element of the crime charged.” Committee Report,

14

Insanity Defense in Criminal Trials and Limitation of

Psychiatric Testimony, 251 J. AM. MED. ASS’N 2967,

2967 (1984). Twenty years later, the AMA reversed

course. See AAPL Practice Guideline for Forensic

Psychiatric Evaluation of Defendants Raising the

Insanity Defense, 42 J. AM. ACAD. PSYCHIATRY & L. at

S6 (2014 Supp.) (citing AMA, Reports of Council on

Long Range Planning and Dev. 202 (June 2005)).

It’s not unreasonable to expect the country’s medical

organizations or their members to reverse course again

in the next 20 years. The scientific method is designed

to drive change: scientists get paid to conceive and test

new theories, falsifying old ones in the process. Given

those realities, Petitioner’s request to constitutionalize

today’s in vogue theory of insanity is shortsighted.

c. The disharmony among courts and scientists

discussed above should be fatal to Petitioner’s

contention that moral capacity always has been

indispensable to the American conception of the

insanity defense. That alone suffices to reject

Petitioner’s due process claim. Even so, amici briefly

show how the mens rea approach to legal insanity

developed alongside the moral-capacity approach—

more evidence confirming that moral capacity

has never been the uniform, sole approach to legal

insanity.

The mens rea approach dates to at least 1724, when

Justice Tracy instructed the jury on “guilty mind” as a

requisite element of murder in the trial of Edward

Arnold. Justice Tracy directly tied malice to lack of

sanity—and both to the defendant’s capacity to reason.

“[G]uilt arises from the mind, and the wicked will and

15

intention of the man. If a man be deprived of his

reason, and consequently of his intention, he cannot be

guilty; and if that be the case, though he had actually

killed . . . he is exempted from punishment . . . .”

Arnold’s Case, 16 How. St. Tr. 596, 764 (1724). And “it

is not every kind of frantic humour” that makes him

“such a madman as is to be exempted from

punishment: it must be a man that is 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.

Academic research shows just how widespread the

mens rea approach’s following became. “Until the

nineteenth century, criminal-law doctrines of mens rea

(criminal intent) handled the entire problem. Evidence

of mental illness was admitted on the question of

intent.” Norval Morris, MADNESS AND THE CRIMINAL

LAW 54 (1982). Confirming the point, early American

jurists “tended to recite long-standing definitions and

rules drawn from such old English authorities as

Edward Coke, Matthew Hale, and Blackstone, most of

whom reserved the designation of insanity for those

suffering from ‘a total deprivation of reason.’”

Blumenthal at 57 (emphasis added).

2. States today routinely impose criminal

liability irrespective of an accused’s

moral capacity.

Contemporary practice also contradicts Petitioner’s

claim that moral culpability is the sine qua non of

criminal liability. All jurisdictions—including those

with a moral capacity defense—impose strict liability

and criminal negligence liability for a vast and growing

16

body of regulatory crimes. By definition, those criminal

prohibitions apply irrespective of the defendant’s moral

culpability.

It’s easiest to see the irreconcilable conflict between

Petitioner’s proposed rule and today’s practice by first

returning briefly to M’Naghten’s origins. M’Naghten

was born when the few existing criminal prohibitions

targeted conduct viewed as malum in se—inherently

immoral. At common law, felonies were limited to

offenses viewed then as inarguably immoral, including

“murder, manslaughter, arson, burglary, robbery, rape,

sodomy, mayhem and larceny.” Jerome v. United

States, 318 U.S. 101, 108 n.6 (1943) (citing Wharton,

CRIMINAL LAW § 26 (12th ed.)). The jurisdictions that

allowed an accused to invoke the defense of lack of

moral capacity were at least internally

consistent—both the crime and the defense were

defined primarily by moral and religious concerns.

Such an approach would not have been surprising in,

for example, parts of colonial America, where

“religious, biological, and moral explanations were

woven into a unified model of madness in which God,

devil, and human actors all played various roles.” Mary

Ann Jimenez, CHANGING FACES OF MADNESS: EARLY

AMERICAN ATTITUDES AND TREATMENT OF THE INSANE

5-22 (1987).

Things have changed. Vast new swaths of

contemporary criminal laws target behaviors for

reasons other than notions of sin and morality. States

now regulate complex economic, social, and political

dynamics without regard to moral culpability. Those

new malum prohibitum regulatory crimes “‘enjoin only

17

positive duties, and forbid only such things as are not

mala in se . . . without any intermixture of moral guilt.’”

Jordan v. De George, 341 U.S. 223, 237 n.10 (1951)

(quoting COOLEY’S BLACKSTONE Vol. I at 54, 58 (4th

ed.)) (emphasis added). They allow States to respond to

immense post-industrial regulatory challenges: “Traffic

of velocities, volumes and varieties unheard of came to

subject the wayfarer to intolerable casualty risks,” and

“[c]ongestion of cities and crowding of quarters called

for health and welfare regulations undreamed of in

simpler times.” Morissette v. United States, 342 U.S.

246, 254 (1952). “The industrial revolution multiplied

the number of workmen exposed to injury from

increasingly powerful and complex mechanisms, driven

by freshly discovered sources of energy, requiring

higher precautions by employers.” Id. at 253-54.

All American jurisdictions now impose strict

liability for a variety of crimes. Examples include

vehicular homicide, Colo. Rev. Stat. § 18-3-106;

possession of hand grenades, United States v. Freed,

401 U.S. 601 (1971); statutory rape, State v. Yanez, 716

A.2d 759 (R.I. 1998); drunk driving, State v. Glass, 620

N.W.2d 146 (N.D. 2000); selling unregistered

securities, Hentzner v. State, 613 P.2d 821 (Ala. 1980);

environmental crimes, such as permitting leakage from

hazardous waste containers, People v. Matthews, 7 Cal.

App. 4th 1052 (1992); and introducing adulterated

drugs into commerce, 21 U.S.C. § 333(a)(1), to name

but a few.

Still other statutes criminalize negligence. Those

statutes impose criminal liability upon an accused who

fails to live up to a duty of care that a “reasonable

18

person” would exercise—irrespective of his own actual

mental culpability. Examples include negligent assault,

People v. Conway, 849 N.E.2d 954 (N.Y. Ct. App. 2006);

involuntary manslaughter, Moore v. State, 574 S.W.2d

122 (Tex. Crim. App. 1978); and child abuse,

Santillanes v. State, 849 P.2d 358 (N.M. 1993).

Adopting Petitioner’s proposed rule would portend

serious consequences for this universal regime of strict

liability and negligence crimes. Taken to its logical end,

Petitioner’s rule could mean that all strict liability and

negligence crimes are unconstitutional: None accounts

for moral capacity, and (under Petitioner’s rule) that’s

a constitutional minimum for due process. This Court,

however, has already held that strict liability crimes

pass constitutional muster. Lambert v. California, 355

U.S. 225, 228 (1957) (“We do not go with Blackstone in

saying that ‘a vicious will’ is necessary to constitute a

crime, 4 Bl. Comm. *21, for conduct alone without

regard to the intent of the doer is often sufficient.”).

Petitioner’s rule may call Lambert’s continuing validity

into question.

Alternatively, Petitioner’s rule would make lack of

moral culpability a defense for strict or negligence

criminal liability. This outcome is inherently

inconsistent with those already-Court-approved

theories of crime—and it knows no logical stopping

point. After all, “it is hard to see why a special rule . . .

should be made for the mentally ill if it is not available

to other ‘innocents’ convicted of crimes of negligence or

strict liability.” Morris at 71.

*****

19

The reality of States’ expansive criminal regulation

outside any moral dimensions disproves Petitioner’s

contention that moral capacity is a bedrock principle

deeply rooted in our nation’s history and traditions.

Imposing a constitutional moral capacity defense could

seriously undermine—or even invalidate—vast zones

of modern societal regulation whose constitutional

validity was settled long ago.

C. Constitutionalizing a moral capacity

defense would commit the Court to

substantial policymaking and produce

troubling consequences.

Making Petitioner’s moral capacity rule a due

process baseline would leave this Court and the

country to grapple with at least three significant

follow-on problems.

1. Among jurisdictions with a moral capacity test,

fundamental questions about the way that test

operates remain controversial—and unresolved.

Foremost among these: Must the accused subjectively

believe the prohibited conduct to be inherently wrong?

See, e.g., 11 Del. Code § 401. Or must he merely

understand that the conduct is illegal? See, e.g., 720 Ill.

Comp. Stat. 5/6-2 (excusing substantial incapacity “to

appreciate the criminality of his conduct”); Model Penal

Code § 4.01 (excusing where accused “lacks substantial

capacity . . . to appreciate the criminality

[wrongfulness] of his conduct”) (brackets in original).

Or both? See, e.g., People v. Lyttle, 408 N.Y.S.2d 578

(Co. Ct. 1976). These are mutually exclusive theories of

blameworthiness, so the Court must resolve this

20

disagreement before States can properly implement

moral capacity as a constitutional baseline.

Beyond that, the answers to those questions

themselves raise more questions: Just how much

“appreciation” of wrongness must an accused have?

Must he have no appreciation that the conduct is wrong

in any sense; or does he qualify if he doesn’t appreciate

just how wrong the conduct is? See Paul Robinson, 2

CRIM. L. DEF. § 173(d)(3) (1984) (“The term ‘appreciate’

in the A.L.I. formulation may have been intended…to

provide the excuse where the actor knows the conduct

is wrong or criminal, but may not know that it is as

wrong or as criminal as it is.”). If the latter, how much

appreciation is too much to be insane? Thirty percent?

Fifty?

No constitutional principle settles those questions.

Instead, those questions call for policy-based answers.

And adopting Petitioner’s proposed rule would require

substituting this Court’s policy judgment for a

legislature’s on each of them.

2. Petitioner’s rule makes the vagaries of psychiatry

the limiting principle for a constitutional defense to

criminal liability. Stated differently, if Petitioner is

right, the insanity defense must be available to

defendants with any mental disorder that psychiatrists

claim deprives them of moral capacity. Consider what

that would mean for just one disorder: psychopathy.

“Virtually all philosophers who have addressed the

issue argue that psychopaths are not morally

responsible.” Stephen J. Morse & Morris B. Hoffman,

The Uneasy Entente Between Legal Insanity and Mens

21

Rea: Beyond Clark v. Arizona, 97 J. CRIM. L. &

CRIMINOLOGY 1071, 1126 (2007). It requires no

imagination to see the usefulness of the moral capacity

test for persons who, like psychopaths, cannot feel

guilt. Henry Richards, Evil Intent: Violence and

Disorders of the Will, in PSYCHOPATHY: ANTISOCIAL,

CRIMINAL, AND VIOLENT BEHAVIOR, 69 (T. Millon, E.

Simonsen, M. Birket-Smith, & R. D. Davis eds., 1998).

In fact, some courts have already permitted

psychopaths to use the defense. United States v. Gay,

522 F.2d 429 (6th Cir. 1975); Wade v. United States,

426 F.2d 64 (9th Cir. 1970).

The Model Penal Code drafters acknowledged this

problem and tried to manage it by making the defense

unavailable to defendants with a psychopathic

“abnormality manifested only by repeated criminal or

otherwise antisocial conduct.” Model Penal Code § 4.01.

But that exclusion fails to account for high-functioning

psychopaths who escape detection. Indeed, some

psychopaths “manage to ply their trade with few formal

contacts with the criminal justice system” and are wellrepresented in politics, law, medicine, and business,

especially “where rules and their enforcement are lax

and where accountability is difficult to determine.”

Robert D. Hare, Psychopaths and Their Nature:

Implications for the Mental Health and Criminal

Justice System, in Millon et al. at 195-96. Nor does the

Model Penal Code exclusion adequately account for the

fact that psychopaths often suffer from a constellation

of neurological symptoms unrelated to criminality, such

as bipolar disorder, schizophrenia, somatization

disorder, various anxiety disorders, and ADHD, with a

possible genetic basis. In other words, few psychopaths

22

will present a mental “abnormality manifested only by

repeated criminal or otherwise anti-social conduct”

because psychopaths often have numerous additional

symptoms. Overholser, Criminal Responsibility: A

Psychiatrist’s Viewpoint, 48 A.B.A. J. 527, 529-30

(1962).

The more psychiatry says psychopathy resembles

other disorders in etiology and broad neurological

impairment, rather than simple predisposition to

criminality, the more courts will say it qualifies for any

constitutional moral capacity defense. And exempting

psychopaths—malignant, personality-disordered

offenders—from criminal liability will hobble the

States’ and Congress’s ability to punish the worst

crimes. See, e.g., Federal Bureau of Investigation,

Killed in the Line of Duty: A Study of Selected

Felonious Killings of Law Enforcement Officers (1992)

(concluding that half of officers killed in line of duty

were killed by people closely matching psychopath

profile); United States v. Antone, 742 F.3d 151 (4th Cir.

2014) (citing studies showing up to 70 percent of

prisoners suffer from antisocial personality disorder).

3. Finally, a brief response to Petitioner’s assurance

that under his proposed rule, States will “retain ample

leeway to experiment with the formulation of the

insanity defense that works best for their citizens.”

Pet’r Br. 36. His promises—that even under his regime

States still can “add or subtract a volitional

component,” id. at 37, or “adjust different components

of the defense’s basic formula,” id., or “allocate burdens

as they see fit,” id. at 38—resemble similar assurances

to the States in prior cases.

23

Consider Atkins v. Virginia, which “le[ft] to the

States the task of developing” standards to determine

who qualified for an intellectual-disability exclusion

from capital punishment. 536 U.S. 304, 317 (2002)

(internal quotation marks and brackets omitted). That

approach lasted twelve years—until the Court declared

a State’s chosen standard unconstitutional because, in

the Court’s view, it “create[d] an unacceptable risk that

persons with intellectual disability will be executed.”

Hall v. Florida, 572 U.S. 701, 704 (2014).

If past is prelude, the question is not whether a

follow-on case will aim to break Petitioner’s promise

that any State “approach[]” to insanity is “permissible”

as long as it recognizes moral capacity. Pet’r Br. 39.

The only real question—how long until that case is

filed?

II. THE EIGHTH AMENDMENT DOES NOT REQUIRE A

MORAL CAPACITY DEFENSE.

A. Petitioner did not press, and the Kansas

Supreme Court did not pass upon, his new

Eighth Amendment claim.

As an initial matter, Petitioner’s litigation choices

preclude the Court from considering his claim that the

Eighth Amendment requires States to recognize an

insanity defense. “With ‘very rare exceptions,’” this

Court has “adhered to the rule in reviewing state court

judgments under 28 U.S.C. § 1257 that [it] will not

consider a petitioner’s federal claim unless it was

either addressed by, or properly presented to, the state

court that rendered the decision” under review. Adams

v. Robertson, 520 U.S. 83, 86 (1997) (quoting Yee v.

24

Escondido, 503 U.S. 519, 533 (1992)). Petitioner’s new

Eighth Amendment claim fails both parts of that test.

First, the Kansas Supreme Court did not address,

much less decide, whether Kansas Statute § 22-3220

violates the Eighth Amendment. J.A. 242-45. Petitioner

concedes as much: “the decision below does not

separately analyze Kansas’s mens rea approach under

the Eighth Amendment.” Cert. Reply Br. 9.

Second, when—as here—“the highest state court is

silent on a federal question,” this Court “assume[s] that

the issue was not properly presented, and the

aggrieved party bears the burden of defeating this

assumption by demonstrating that the state court had

a fair opportunity to address the federal question that

is sought to be presented here.” Adams, 520 U.S. at 8687 (internal quotation marks and citations omitted).

Petitioner fails to carry that burden.

Petitioner has tried to rebut that assumption only

in his cert-stage reply brief. There, he contended that

he raised this claim in the Kansas Supreme Court—but

only “in a post-argument submission.” Cert. Reply Br.

9 (citing Cert. Reply Br. Add. 19). That contention does

not withstand scrutiny.

That post-argument submission arose from

counsel’s “belie[f]” that some members of the Kansas

Supreme Court “were, essentially, combining parts of

Issue IV (unconstitutional to abrogate the insanity

defense) and Issue VIII (death penalty is categorically

disproportionate for defendants with a severe mental

illness).” Cert. Reply Add. 18. Counsel thus worried

“that Issue VIII was not sufficiently clear,” id., and

25

urged the Kansas Supreme Court not to import

Petitioner’s due process challenge to § 22-3220 into his

separate Eighth Amendment categorical challenge to

the death penalty: “to the extent this [Kansas

Supreme] Court would consider applying the historical

insanity defense as outlined in Issue IV to the

imposition of a death sentence, counsel believes that

issue has been substantially raised and briefed in Issue

VIII.” Cert Reply Add. 19.

The conflict between what that submission actually

says and what he now claims it said could not be

starker. His post-argument submission expressly tried

to protect, and keep his categorical Eighth Amendment

claim separate from, his due process claim. He urged

the court not to “combin[e]” them because his

categorical Eighth Amendment claim stood alone and

was “substantially raised and briefed.”

That

contradicts his current reading—that the submission

somehow made his due process attack on § 22-3220 the

basis of his categorical Eighth Amendment challenge.

Petitioner’s failure to rebut the assumption that he

did not press his Eighth Amendment challenge to § 223220 in the Kansas Supreme Court deprives this Court

of jurisdiction to hear this claim. Yee, 503 U.S. at 533;

Illinois v. Gates, 462 U.S. 213, 218-20 (1983). At a

minimum, prudential considerations should preclude

the Court from considering this question. Petitioner’s

failure makes the record on this claim inadequate.

Cardinale v. Louisiana, 394 U.S. 437, 439 (1969). And

“‘due regard’” for this Court’s “‘appropriate

relationship’” with state courts “demands that” the

Kansas Supreme Court “be given an opportunity to

26

consider” this claim before this Court does. Gates, 462

U.S. at 221 (quoting McGoldrick v. Compagnie

Generale, 309 U.S. 430, 435-36 (1940)).

B. Nothing in this Court’s Eighth Amendment

precedent requires States to provide an

insanity defense.

Petitioner’s claim fails on the merits in any event.

Petitioner does not cite, and amici are unaware of, any

opinion of this Court holding that the Eighth

Amendment (or any other constitutional provision)

requires States’ substantive criminal law to provide

any affirmative defense. On the contrary, the Court has

rejected at least four requests to create constitutionally

based affirmative defenses: States need not recognize

the affirmative defenses of cognitive incapacity, see

Clark, 548 U.S. at 779; or voluntary intoxication, see

Egelhoff, 518 U.S. at 56; or extreme emotional

disturbance, see Patterson, 432 U.S. at 201; or

irresistible impulse, see Leland, 343 U.S. at 800-01.

Making a fifth run at that goal, Petitioner invokes

statements from some of the Court’s cases touching on

moral culpability to try to create a constitutional

command for a moral capacity defense. But Petitioner

fundamentally misreads those cases. They concerned

which punishments the Constitution permits States to

impose on criminals with reduced moral culpability.

None undermined the States’ separate, and predicate,

legitimate power to punish those persons in the first

place despite their reduced moral capacity.

Consider, for example, the death penalty for persons

with intellectual disabilities. Thirty years ago, the

27

Court held that the Eighth Amendment did not forbid

that punishment for that group of murderers, even

while recognizing the “principle that punishment

should be directly related to the personal culpability of

the criminal defendant.” Penry v. Lynaugh, 492 U.S.

302, 319 (1989) (citing Lockett v. Ohio, 438 U.S. 586

(1978) and Eddings v. Oklahoma, 455 U.S. 104 (1982)).

That principle animated the Court’s prior holdings that

capital defendants have an Eighth Amendment right to

individualized sentencing, including presentation of

favorable mitigation evidence during the penalty

phase. Lockett, 438 U.S. at 605; Eddings, 455 U.S. at

113-14.

Penry is of course no longer good law. Atkins v.

Virginia, 536 U.S. 304 (2002). In overruling Penry,

Atkins reasoned in part that persons with intellectual

disabilities “do not act with the level of moral

culpability that characterizes the most serious adult

criminal conduct.” Id. at 306.

But even then, the Court reiterated that diminished

moral culpability did not preclude the intellectually

disabled from “meet[ing] the law’s requirements for

criminal responsibility.” Id. And when they meet those

requirements, they “should be tried and punished when

they commit crimes.” Id.

Likewise, the Court has exempted juveniles from

capital punishment, Roper v. Simmons, 543 U.S. 551

(2005); from life without parole for non-homicide

crimes, Graham v. Florida, 560 U.S. 48 (2010); and

from mandatory life without parole in any case, Miller

v. Alabama, 567 U.S. 460 (2012). In each of those cases

the Court relied on juveniles’ “diminished culpability.”

28

Roper, 543 U.S. at 571. But in none of them did the

Court set aside a juvenile’s conviction—a seemingly

necessary consequence if youth were an affirmative

defense. On the contrary, the Court reaffirmed that,

despite his diminished moral culpability, a “juvenile is

not absolved of responsibility for his actions.” Graham,

560 U.S. at 68 (emphasis added).

In short, these cases show concern about the

severity of punishments for defendants with lessened

culpability, but no hesitation about whether they can

be convicted under the substantive criminal law and

receive some punishment. Those cases cannot

reasonably be read to support the conclusion Petitioner

draws from them—that an accused’s reduced

culpability precludes “criminally punishing the insane.”

Pet’r Br. 32.

C. There is no genuine national consensus

that moral capacity is a necessary

predicate to criminal liability.

Under the Court’s current Eighth Amendment

jurisprudence, the Amendment “draw[s] its meaning”

in part “from the evolving standards of decency that

mark the progress of a maturing society.” Trop v.

Dulles, 356 U.S. 86, 100–01 (1958) (plurality). Those

“evolving standards should be informed by objective

factors to the maximum possible extent.” Harmelin v.

Michigan, 501 U.S. 957, 1000 (1991) (quotations and

citation omitted). “[T]he clearest and most reliable

objective evidence of contemporary values is the

legislation enacted by the country’s legislatures.”

Penry, 492 U.S. at 331.

29

Taking that jurisprudence at face value, it too

precludes adopting Petitioner’s proposed rule for two

reasons. First, though a majority of States makes some

species of the M’Naghten test available as a defense in

some circumstances, “[i]t is not so much the number of

the States” taking a given approach “that is significant,

but the consistency of the direction of change.” Atkins,

536 U.S. at 315. The direction of legislative change

leads to Kansas: Since the late 1970s, five States

besides Kansas have moved away from M’Naghten and

toward the mens rea test. See Idaho Code Ann. § 18207 (1986); Mont. Code Ann. § 46-14-102 (1979); Alaska

Stat. § 12.47.010(a) (1982); Utah Code Ann. § 76-2305(1) (1983); Nev. Rev. Stat. § 193.220 (1995), held

unconstitutional by Finger v. Nevada, 27 P.3d 66 (Nev.

2001). Even considering Congress’s adoption of

M’Naghten in the early 1980s, 18 U.S.C. § 17, on

balance the weight of legislative momentum favors

Kansas’s approach.

Second, as discussed, see supra Section I.B.2, all

jurisdictions today impose strict or negligence criminal

liability—uniform American movement over the last

half century to an agreement that criminal liability can

arise irrespective of moral capacity. That ends the

Eighth Amendment inquiry.

*****

Petitioner’s Eighth Amendment argument, like his

due process argument, amounts to a plea for mercy for

the mentally ill. “Mercy toward the guilty can be a form

of decency, and a maturing society may abandon harsh

punishments that it comes to view as unnecessary or

unjust.” Miller, 567 U.S. at 495 (Roberts, C.J.,

30

dissenting). “But decency is not the same as leniency.”

Id. “A decent society protects the innocent from

violence. A mature society may determine that this

requires removing those guilty of the most heinous

murders from its midst, both as protection for its other

members and as a concrete expression of its standards

of decency.” Id. The Eighth Amendment is not a oneway ratchet that “can move only in the direction of

easing sanctions on the guilty.” Id.

CONCLUSION

The Court should affirm the Kansas Supreme

Court’s judgment.

Respectfully submitted.

SEAN D. REYES

Utah Attorney General

TYLER R. GREEN*

Utah Solicitor General

THOMAS B. BRUNKER

Deputy Solicitor General

ANDREW F. PETERSON

Assistant Solicitor General

350 N. State Street, Suite 230

Salt Lake City, UT 84114-2320

Telephone: (801) 538-9600

Email: tylergreen@agutah.gov

*Counsel of Record

Counsel for Amicus Curiae

State of Utah

31

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

STATE OF ALABAMA

ERIC SCHMITT

Attorney General

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KEVIN G. CLARKSON

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TIMOTHY C. FOX

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LESLIE RUTLEDGE

Attorney General

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Attorney General

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Attorney General

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Attorney General

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JEFF LANDRY

Attorney General

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KEN PAXTON

Attorney General

STATE OF TEXAS