Amicus Curiae Brief — James K. Kahler, Petitioner v. Kansas
Supreme Court briefAug 9, 2019
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No. 18-6135
In the Supreme Court of the United States
JAMES K. KAHLER, PETITIONER
v.
KANSAS
(CAPITAL CASE)
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF KANSAS
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
ELIZABETH B. PRELOGAR
Assistants to the Solicitor
General
CHRISTOPHER J. SMITH
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
CAPITAL CASE
QUESTION PRESENTED
Whether the Constitution permits States to treat
mental illness as an excuse for criminal conduct only
when it creates reasonable doubt as to the defendant’s
criminal mens rea, or instead mandates an insanity test
that focuses on whether the defendant appreciated the
wrongfulness of his conduct.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 6
Argument....................................................................................... 8
I. No substantive due process right forecloses
Kansas’s mens rea approach to insanity claims ........... 9
A. Kansas’s approach reflects its broad discretion
to delineate the circumstances in which mental
illness excuses criminal conduct .............................. 9
B. The Due Process Clause neither forecloses
Kansas’s mens rea approach nor requires a
right-and-wrong test of insanity ............................ 14
1. The mens rea approach has historical roots
in the English common law .............................. 14
2. American practices likewise permit a mens
rea approach to insanity claims ....................... 19
3. This Court’s precedents confirm that
Kansas’s approach to insanity is
constitutional ..................................................... 24
C. Legislatures are better situated than courts to
make the moral judgments necessary to decide
when mental illness should excuse criminal
liability ...................................................................... 26
II. The Eighth Amendment does not prohibit Kansas
from adopting a mens rea approach to insanity
claims .............................................................................. 29
A. Petitioner did not preserve the Eighth
Amendment argument he advances in this
Court ......................................................................... 30
B. Kansas’s approach to insanity claims does not
violate the Eighth Amendment ............................. 30
Conclusion ................................................................................... 34
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Ake v. Oklahoma, 470 U.S. 68 (1985) ................................... 13
Bieber v. People, 856 P.2d 811 (Colo. 1993),
cert. denied, 510 U.S. 1054 (1994) ..................................... 24
Clark v. Arizona, 548 U.S. 735 (2006) ........................ passim
Commonwealth v. Rogers, 48 Mass. (1 Met.) 500 (1844) ....... 20
Finger v. State, 27 P.3d 66 (Nev. 2001), cert. denied,
534 U.S. 1127 (2002)............................................................ 22
Fisher v. United States, 328 U.S. 463 (1946) ...................... 29
Harrison v. State, 69 S.W. 500 (Tex. Crim. App. 1902) ....... 20
Jones v. United States, 463 U.S. 354 (1983) ........................ 13
Leland v. Oregon, 343 U.S. 790 (1952) .................... 24, 25, 29
M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843) ...... 7, 17, 18
Montana v. Egelhoff, 518 U.S. 37 (1996) ............. 8, 10, 14, 20
Patterson v. New York, 432 U.S. 197 (1977) ................... 8, 29
People v. Schmidt, 110 N.E. 945 (N.Y. 1915)...................... 20
People v. Skinner, 704 P.2d 752 (Cal. 1985) ........................ 22
People v. Wood, 187 N.E.2d 116 (N.Y. 1962) ...................... 22
Powell v. Texas, 392 U.S. 514 (1968) ........ 9, 24, 26, 31, 32, 33
Regina v. Bur ton, 176 Eng. Rep. 354 (Civ. Ct. 1863) ........ 18
Regina v. Oxford, 173 Eng. Rep. 941 (Cent. Crim. Ct.
1840) ..................................................................................... 18
Regina v. Windle, 2 Q.B. 826 (Eng. 1952)........................... 19
Rex v. Arnold, 10 George I 695 (Ct. Common Pleas
1724) ..................................................................................... 16
Robinson v. California, 370 U.S. 660 (1962)................... 8, 31
State v. Bethel, 66 P.3d 840 (Kan.), cert denied,
540 U.S. 1006 (2003).............................................................. 6
State v. Cegelis, 638 A.2d 783 (N.H. 1994) .......................... 23
State v. Crenshaw, 659 P.2d 488 (Wash. 1983) ................... 23
V
Cases—Continued:
Page
State v. Hamann, 285 N.W.2d 180 (Iowa 1979) ................. 23
State v. Johnson, 399 A.2d 469 (R.I. 1979) .......................... 23
State v. Pike, 49 N.H. 399 (1870) .......................................... 20
State v. Spencer, 21 N.J.L. 196 (1846) ................................. 20
State v. Ulm, 326 N.W.2d 159 (Minn. 1982) ........................ 22
State v. Worlock, 569 A.2d 1314 (N.J. 1990) ....................... 22
United States v. Pohlot, 827 F.2d 889
(3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988) ............ 21
Watson v. State, 180 S.W. 168 (Tenn. 1915) ........................ 20
Constitution and statutes:
U.S. Const.:
Amend. V (Due Process Clause) ........................... passim
Amend. VIII............................................6, 8, 30, 31, 32, 33
18 U.S.C. 17 ............................................................................ 21
18 U.S.C. 17(a) ................................................................... 1, 23
Alaska Stat. (2018):
§ 12.47.010(a) .................................................................... 22
§ 12.47.020 ........................................................................ 22
Ariz. Rev. Stat. Ann. § 13-502 (2010) ................................... 24
Idaho Code Ann.:
§ 18-207 (2016) ................................................................. 10
§ 19-2523 (2017) ............................................................... 10
Ind. Code Ann. § 35-41-3-6(b) (LexisNexis 2009) .............. 24
Kan. Stat. Ann. (Supp. 2017):
§ 21-5209 ....................................................................... 3, 10
§ 21-6625(a)(6) .............................................................. 5, 10
§ 21-6815(c)(1)(C) ............................................................ 10
§ 22-3220 (2007) ................................................................. 3
§ 22-3430 ........................................................................... 34
VI
Statutes—Continued:
Page
Mont. Code Ann. (2017):
§ 46-14-102........................................................................ 10
§ 46-14-311........................................................................ 10
N.D. Cent. Code § 12.1-04.1-01(1)(a) (2012) ........................ 23
Or. Rev. Stat. § 161.295(2) (2017) ......................................... 24
Utah Code Ann. § 76-2-305 (LexisNexis 2017) ................... 10
Miscellaneous:
John Biggs, The Guilty Mind (1955)................................... 15
John Brydall, Non Compos Mentis: Or, the Law
Relating to Natural Fools, Mad-Folks, and
Lunatick Persons, Inquisited, and Explained,
for Common Benefit (1700) ............................................... 17
I Edw. Coke, The First Part of the Institutes of the
Lawes of England (1628) ................................................... 16
I George Dale Collinson, A Treatise on The Law
concerning Idiots, Lunatics, and Other Persons
Non Compotes Mentis (1812) ............................................ 16
Homer D. Crotty, The History of Insanity as a
Defence to Crime in English Criminal Law,
12 Calif. L. Rev. 105 (1924) .......................................... 15, 19
Michael Dalton, The Countrey Justice (1666) .................... 17
S. Sheldon Glueck, Mental Disorder and the
Criminal Law—A Study in Medico-Sociological
Jurisprudence (1927) ............................................. 15, 16, 17
Abraham S. Goldstein, The Insanity Defense (1967) ........ 20
H.R. Rep. No. 577, 98th Cong., 1st Sess. (1983) ................. 21
I Matthew Hale, The History of the Pleas of the
Crown (1736) ....................................................................... 16
Donald H. J. Hermann, The Insanity Defense:
Philosophical, Historical and Legal Perspectives
(1983) .................................................................................... 20
VII
Miscellaneous—Continued:
Page
III W. S. Holdsworth, A History of English Law
(3d ed., rewritten, 1923) ..................................................... 19
Idaho State Senate, Statement of Purpose,
S.B. 1396, 46th Leg., 2d Reg. Sess. (1982) ....................... 13
Edwin R. Keedy, Insanity and Criminal
Responsibility, 30 Harv. L. Rev. 535 (1917) .................... 21
1 Wayne R. LaFave, Substantive Criminal Law
(2d ed. 2003)............................................................. 19, 22, 23
Limiting the Insanity Defense: Hearings Before the
Subcomm. on Criminal Law of the Senate Comm.
on the Judiciary, 97th Cong., 2d Sess. (1982) ................. 12
I Model Penal Code and Commentaires (1985):
§ 4.01(1) ............................................................................ 23
§ 4.01(2) ............................................................................ 24
Norval Morris, The Criminal Responsibility of the
Mentally Ill, 33 Syracuse L. Rev. 477 (1982) .................. 21
Anthony M. Platt, The Origins and Development of
the “Wild Beast” Concept of Mental Illness and Its
Relation to Theories of Criminal Responsibility,
1 Issues in Criminology 1 (1965) ....................................... 15
Anthony Platt & Bernard L. Diamond, The Origins
of the “Right and Wrong” Test of Criminal
Responsibility and Its Subsequent Development in
the United States: An Historical Survey, 54 Calif.
L. Rev. 1227 (1966) ............................................................. 17
Reform of the Federal Criminal Laws: Hearings
Before the Subcomm. on Criminal Laws and Procedure of the Senate Comm. on the Judiciary,
93d Cong., 2d Sess. (1974) .................................................. 21
S. Rep. No. 307, 97th Cong., 1st Sess. (1981)................ 12, 13
William French Smith, Limiting the Insanity
Defense: A Rational Approach to Irrational
Crimes, 47 Mo. L. Rev. 605 (1982) ........................ 11, 12, 13
VIII
Miscellaneous—Continued:
Page
II James Fitzjames Stephen, A History of The
Criminal Law of England (1883) ..................................... 19
The Insanity Defense: Hearings Before the Senate
Comm. on the Judiciary, 97th Cong.,
2d Sess. (1982) ......................................................... 11, 13, 21
In the Supreme Court of the United States
No. 18-6135
JAMES K. KAHLER, PETITIONER
v.
KANSAS
(CAPITAL CASE)
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF KANSAS
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case concerns whether the Constitution prohibits States from excusing criminal conduct based on a
claim of insanity only when mental illness creates reasonable doubt as to the defendant’s mens rea for the
crime. Although federal law currently treats insanity
as an affirmative defense under which a defendant may
show that “as a result of a severe mental disease or defect, [he] was unable to appreciate the nature and quality or the wrongfulness of his acts,” 18 U.S.C. 17(a), the
federal insanity standard has varied over time, and the
United States has an interest in Congress’s authority to
prescribe the contours of criminal liability. The United
States therefore has a substantial interest in this case.
(1)
2
STATEMENT
1. On November 28, 2009, petitioner murdered his
two daughters, his ex-wife, and her grandmother. J.A.
214-215.
Petitioner’s marriage had recently disintegrated after his wife, Karen, had become romantically involved
with a female coworker. J.A. 213. Petitioner initially
assented to Karen’s extramarital relationship, but he
eventually objected to her conduct and confronted her
at a New Year’s Eve party, “result[ing] in a shoving
match.” J.A. 214; see J.A. 213-214. Karen filed for divorce shortly thereafter. J.A. 214.
Karen later made a battery complaint against petitioner, and then moved out of the home with the couple’s
two teenage daughters, Emily and Lauren, and their
nine-year-old son, Sean. J.A. 213-214. Within a few
months, petitioner was fired from his job due to his “increasing preoccupation with his personal problems and
decreasing attention to his job.” J.A. 214. Petitioner
moved to his parents’ ranch in Kansas. Ibid.
During the Thanksgiving holiday in 2009, Sean
joined petitioner at the ranch, while petitioner’s daughters stayed with Karen. J.A. 214. On November 28, Karen declined to allow Sean to stay with petitioner rather
than visit Karen’s grandmother, Dorothy. Ibid. Karen
picked Sean up and went to Dorothy’s house with him,
Emily, and Lauren. Ibid.
That evening, petitioner drove an hour to Dorothy’s
home and entered through the back door, where Karen
and Sean were standing. J.A. 105, 215. Petitioner shot
Karen twice, but did not attempt to harm Sean, who ran
to a neighbor’s house. J.A. 215. Petitioner then “methodically” moved through the home, pursuing his victims and shooting Dorothy, Emily, and Lauren in turn.
3
J.A. 215, 261. During the attack, Dorothy’s Life Alert
system activated and recorded petitioner telling a sobbing voice to “stop crying.” J.A. 62, 215, 232. It also
recorded petitioner stating, “I am going to kill her.”
J.A. 62, 232.
When police officers arrived, Karen was unconscious
in the kitchen, Emily was dead in the living room, Dorothy was conscious but shot in the abdomen, and Lauren
was upstairs, conscious but shot twice and having trouble breathing. J.A. 215. Both Dorothy and Lauren told
first responders that petitioner had shot them. Ibid.
Karen, Lauren, and Dorothy were transported to a hospital but subsequently died from their gunshot wounds.
Ibid. Although petitioner eluded law enforcement on
the evening of the murders, he surrendered without incident the next morning by approaching officers and
stating that he was the man the police were looking for.
J.A. 52, 108, 215.
2. Petitioner was charged with capital murder. J.A.
215-216.
a. Before trial, petitioner filed a motion challenging
the constitutionality of Kansas’s death penalty, in which
he argued that Kansas’s treatment of insanity claims violates due process. J.A. 10-14. Kansas law provides
that 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,” but that “[m]ental disease
or defect is not otherwise a defense.” Kan. Stat. Ann.
§ 21-5209 (Supp. 2017) (replacing without material
change Kan. Stat. Ann. § 22-3220 (2007), which was in
effect when petitioner’s crimes occurred).
Petitioner asserted that he was less morally culpable
than others who commit crimes because he “simply
4
cracked under extreme pressure of a contested and contentious divorce and acted impulsively and violently.”
J.A. 14. And he argued that the Kansas statute violated
due process by permitting a defendant 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.
The trial court denied petitioner’s motion, stating
that it was “not willing to strike down the death penalty.” J.A. 16.
b. The case proceeded to trial, during which “the defense attempted to establish that severe depression had
rendered [petitioner] incapable of forming the intent
and premeditation required to establish the crime of
capital murder.” J.A. 216. Petitioner’s expert psychiatrist recognized that petitioner “wasn’t psychotic” and
“wasn’t hearing voices,” but asserted that “his capacity
to manage his own behavior had been severely degraded so that he couldn’t refrain from doing what he
did.” J.A. 49.
Kansas presented expert testimony of a different
psychiatrist, who determined that petitioner “was depressed” but “still retained the ability to premeditate”
and “did not lack the capacity to form intent.” J.A. 118;
see J.A. 146 (expert report). The State’s psychiatrist
identified several facts indicating that petitioner’s conduct was purposeful and premeditated, including his
long drive to the murder scene, his decision not to park
in front or knock on the door, his prolonged lurking outside before entering, and his pursuit of his victims
through different rooms. J.A. 105-107, 109. In addition,
petitioner intentionally spared his son Sean, “the one
with whom he had the closest relationship” and whom
5
he viewed as less blameworthy than his daughters,
whom he faulted for “siding with” Karen after the divorce. J.A. 109, 145. The State’s psychiatrist further
testified that the circumstances of petitioner’s selfsurrender to the police indicated “an awareness that the
police were looking for him and some indication of his
knowing the reason why.” J.A. 108.
The jury was instructed that petitioner was “not
criminally responsible for his acts if, because of mental
disease or defect, [he] lacked premeditation and/or the
intent to kill.” J.A. 177. The jury found petitioner guilty
of capital murder. J.A. 181.
c. At the penalty phase, petitioner was permitted to
argue for any circumstance in mitigation of the death
penalty, including those based on mental illness. The
jury was informed that “[m]itigating circumstances are
those that in fairness may be considered as extenuating
or reducing the degree of moral culpability or blame or
that justify a sentence of less than death.” J.A. 194.
And Kansas law expressly provides that it is a mitigating circumstance if “[t]he capacity of the defendant to
appreciate the criminality of [his] conduct or to conform
[his] conduct to the requirements of law was substantially impaired.” Kan. Stat. Ann. § 21-6625(a)(6) (Supp.
2017). The jury was instructed that petitioner sought
leniency on that basis and on the ground that he “suffered from serious mental illness impairing his ability
to think and control his actions.” J.A. 195.
After hearing petitioner’s evidence, the jury determined that petitioner should be sentenced to death because the aggravating circumstances outweighed any
mitigating circumstances. J.A. 203.
3. Petitioner appealed to the Supreme Court of Kansas, which affirmed his convictions and sentence. J.A.
6
205-263. As relevant here, the court rejected petitioner’s
argument that Kansas’s approach to insanity violates
due process. J.A. 242-245. The court adhered to prior
precedent that had found no “fundamental principle of
law” that would invalidate Kansas’s approach, State v.
Bethel, 66 P.3d 840, 851 (Kan.), cert. denied, 540 U.S.
1006 (2003); see J.A. 243-245.
SUMMARY OF ARGUMENT
Kansas has made the reasonable and constitutionally
permissible determination to treat mental illness as an
excuse for criminal conduct only when it creates reasonable doubt as to the defendant’s mens rea for the crime.
Neither the Due Process Clause nor the Eighth Amendment demands that a State excuse criminal conduct under an insanity test focused on whether the defendant
could tell right from wrong.
This Court has long recognized that States have
broad discretion to make the moral, legal, and medical
judgments necessary to determine when mental illness
should excuse criminal conduct. Sound policy considerations support Kansas’s mens rea standard of insanity.
That approach reflects a moral judgment that individuals who commit criminal acts with the requisite intent
should not escape all responsibility for their crimes. It
accords with the ordinary criminal-law principle that a
defendant’s motivation for his act is irrelevant to his
guilt or innocence. It avoids juror confusion about issues extraneous to the elements of the crime. It addresses concerns that psychiatric evidence may not reliably help jurors answer difficult questions that arise
from broader definitions of insanity. And instead of creating an on-off switch for liability, it permits individualized consideration at sentencing of how mental illness
affects culpability.
7
Under this Court’s jurisprudence, Kansas’s approach to insanity would violate due process only if it
“offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked
as fundamental.” Clark v. Arizona, 548 U.S. 735, 748
(2006) (brackets in original; citation omitted). That
stringent standard is not satisfied. Kansas’s mens rea
approach has roots in early English common-law definitions of insanity, which excused criminal conduct when
complete cognitive incapacity precluded a defendant
from forming criminal intent. The right-and-wrong test
of insanity articulated in M’Naghten’s Case, 8 Eng.
Rep. 718 (H.L. 1843), although influential, has never
risen “to the level of fundamental principle” that might
have substantive due process implications, Clark, 548
U.S. at 749. Instead, Anglo-American jurisdictions
have applied diverse insanity tests, and legislatures and
commentators have long considered the mens rea approach to be valid.
This Court has repeatedly rejected arguments that
the Constitution mandates a particular test of insanity,
and it should do so again here. Petitioner’s proposal to
constitutionalize an insanity test focused on moral
blameworthiness is not only doctrinally unsound, but
also practically unworkable. He provides no standard
rooted in text, history, or precedent that would guide
courts in their attempts to identify criminal acts that
should be considered constitutionally blameless in light
of a defendant’s mental illness. And any attempt to constitutionalize a standard based on petitioner’s particular view of moral culpability would override numerous
reasonable legislative judgments about the proper contours of an insanity excuse from criminal liability.
8
The Eighth Amendment provides no sounder basis
than the Due Process Clause for disturbing Kansas’s
judgment that mental illness should excuse criminal
conduct only if it creates reasonable doubt as to the defendant’s mens rea. As a threshold matter, petitioner
did not preserve, and the state courts did not address,
an argument that the Eighth Amendment prohibits convicting, as opposed to punishing, certain mentally ill offenders. In any event, the Eighth Amendment focuses
on “cruel and unusual punishments,” not on substantive
liability. U.S. Const. Amend. VIII (emphasis added).
The Court’s one-time application of the Eighth Amendment to invalidate a statute that criminalized the passive “status” of simply being a narcotics addict, Robinson v. California, 370 U.S. 660, 665 (1962), does not call
into question petitioner’s convictions for premeditated
quadruple murder. And even if the Eighth Amendment
were applicable here, individualized consideration of
mental illness at sentencing guards against disproportionate sentences, and Kansas has permissibly determined that the mens rea test furthers penological goals.
ARGUMENT
This Court has long recognized that the States have
principal responsibility for “[p]reventing and dealing
with crime” and that courts “should not lightly construe
the Constitution so as to intrude upon the administration of justice by the individual States.” Montana v.
Egelhoff, 518 U.S. 37, 43 (1996) (plurality opinion) (quoting Patterson v. New York, 432 U.S. 197, 201 (1977)).
States thus enjoy wide latitude in defining the elements
of crimes, defenses to criminal conduct, and the procedures by which crimes and defenses are proved. Id. at
58 (Ginsburg, J., concurring in the judgment). Nothing
9
in the Constitution precludes Kansas’s decision to excuse criminal conduct based on a claim of insanity only
when mental illness creates reasonable doubt as to the
defendant’s mens rea for the crime.
I. NO SUBSTANTIVE DUE PROCESS RIGHT FORECLOSES KANSAS’S MENS REA APPROACH TO INSANITY CLAIMS
A. Kansas’s Approach Reflects Its Broad Discretion To
Delineate The Circumstances In Which Mental Illness
Excuses Criminal Conduct
1. A State’s “insanity rule, like the conceptualization
of criminal offenses, is substantially open to state
choice.” Clark v. Arizona, 548 U.S. 735, 752 (2006). It
has always been “the province of the States” to set the
standards for “assess[ing] the moral accountability of
an individual for his antisocial deeds.” Powell v. Texas,
392 U.S. 514, 535-536 (1968) (plurality opinion); id. at
545 (Black, J., concurring) (observing that it would be
“indefensib[le]” to “impos[e] on the States any particular test of criminal responsibility”).
As a plurality of this Court explained in Powell,
“[t]he doctrines of actus reus, mens rea, [and] insanity,”
along with “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.” 392
U.S. at 536. The selection of an insanity test involves
complex, competing, and evolving policy considerations
about moral culpability, societal protection, and medical
science. Legislatures are best positioned to balance
those interests in “determining the extent to which
moral culpability should be a prerequisite to conviction
10
of a crime.” Egelhoff, 518 U.S. at 58 (Ginsburg, J., concurring in the judgment) (citation and internal quotation marks omitted).
2. Kansas and other States have made the reasonable determination that an insanity claim should excuse
criminal conduct only when mental illness creates reasonable doubt about the defendant’s mens rea for the
crime. Kan. Stat. Ann. § 21-5209 (Supp. 2017); see
Idaho Code Ann. § 18-207 (2016); Mont. Code Ann. § 4614-102 (2017); Utah Code Ann. § 76-2-305 (LexisNexis
2017). Although those States do not channel insanity
claims into an affirmative defense, by “allow[ing] a defendant to introduce (and a factfinder to consider) evidence of mental disease or incapacity for the bearing it
can have on the government’s burden to show mens
rea,” those States in fact provide defendants with “the
opportunity to displace the presumption of sanity more
easily” than if the defendant himself bore the burden of
persuasion on that issue. Clark, 548 U.S. at 767, 771;
see id. at 765-779 (recognizing that either procedure for
considering cognitive incapacity evidence is constitutional). States adopting the mens rea approach do not
measure insanity based on whether the defendant could
tell right from wrong—and so they would permit conviction of a defendant who, for example, killed an individual, intended to do so, understood it was unlawful,
but believed due to mental illness that the killing was
morally justified. Kansas and other jurisdictions, however, do take account of mental illness that reduces culpability but is unrelated to mens rea in determining an
appropriate sentence. See Kan. Stat. Ann. §§ 216625(a)(6), 21-6815(c)(1)(C) (Supp. 2017); Idaho Code
Ann. § 19-2523 (2017); Mont. Code Ann. § 46-14-311
(2017).
11
Advocates of the approach that Kansas follows have
identified sound policy reasons to consider mental illness in assessing mens rea without recognizing a separate insanity defense based on other measures of diminished capacity, like the ability to distinguish right from
wrong. First, in evaluating degrees of moral culpability, States can reasonably conclude that “[p]eople even
with mental problems” should “be responsible for what
they intentionally do.” The Insanity Defense: Hearings Before the Senate Comm. on the Judiciary, 97th
Cong., 2d Sess. 26 (1982) (Insanity Defense Hearings)
(statement of Senator Symms); see J.A. 328 (Kansas
legislative record); William French Smith, Limiting the
Insanity Defense: A Rational Approach to Irrational
Crimes, 47 Mo. L. Rev. 605, 616 (1982) (Smith) (explaining view that “the adoption of a consistent philosophy of
criminal responsibility—according to which all individuals found to have committed forbidden acts with the
requisite criminal intent would be held liable—would
enhance the credibility and acceptance of the criminal
justice system”).
Second, a jurisdiction may decide that a defendant’s
belief based on mental illness that his action was morally justified should, “like any other motivation,” be
treated as irrelevant to criminal liability and instead “be
taken into account only at the time of sentencing.” Insanity Defense Hearings 28 (testimony of U.S. Attorney General William French Smith). Under ordinary
criminal-law principles, for example, it “is clearly, and
properly, viewed as irrelevant to his guilt or innocence”
that a defendant, “genuinely believed that his act was
morally justified because the victim was a bad man
whose death would end injustice, be just recompense for
past wrongs, or lead to a better social order.” Ibid. A
12
jurisdiction could decide as a policy matter to treat all
such beliefs in the same way, whether or not they stem
from mental illness.
Third, a State could conclude that expanding considerations of mental illness beyond mens rea may confuse
jurors and “distort[] * * * the trial process” by focusing
on issues unrelated to whether the defendant committed the crime as defined by its elements. Smith 611; see,
e.g., J.A. 290 (Kansas legislative record); Limiting the
Insanity Defense: Hearings Before the Subcomm. on
Criminal Law of the Senate Comm. on the Judiciary,
97th Cong., 2d Sess. 311-313 (1982) (testimony by the
Idaho Attorney General that mens rea approach lessens
juror confusion and “reduce[s] the complexity of the
jury question to one of intent”). “[J]uries have traditionally dealt with the existence or non-existence of
mens rea,” and the mens rea approach therefore “poses
no additional burdens on them.” S. Rep. No. 307, 97th
Cong., 1st Sess. 105 (1981) (Senate Report). A State accordingly may view the mens rea approach as a way to
“remove[] nebulous and extraneous issues from the determination of guilt.” Id. at 104.
Fourth, a State could adopt the mens rea approach
to address concerns that psychiatric evidence cannot reliably guide jurors in resolving the difficult issues inherent in a broader approach to insanity, such as making a
yes-or-no factual finding about whether the defendant
could distinguish right from wrong or control his behavior. See Clark, 548 U.S. at 755 n.24 (assessment of cognitive incapacity is an “easier enquiry” for “the factfinder to conduct” than the “harder and broader enquiry whether the defendant knew his actions were
wrong”). As this Court has observed, “psychiatrists disagree widely and frequently on what constitutes mental
13
illness” and “on the appropriate diagnosis to be attached to given behavior and symptoms.” Ake v. Oklahoma, 470 U.S. 68, 81 (1985); see Jones v. United States,
463 U.S. 354, 365 n.13 (1983) (observing that the Court
has “recognized repeatedly the uncertainty of diagnosis
in this field and the tentativeness of professional judgment”) (citation and internal quotation marks omitted).
Because even “experts disagree about both the meaning
of the terms used to discuss the defendant’s mental
state and the effect of particular mental states on actions,” a jury might have difficulty applying such concepts. Insanity Defense Hearings 29 (testimony of Attorney General Smith).
Finally, States may reasonably conclude that channeling claims of mental illness unrelated to mens rea to
sentencing, instead of allowing them to categorically excuse a defendant’s criminal conduct, facilitates a fairer
and more nuanced consideration of such claims. See
Smith 609. In the sentencing context, a judge can make
an individualized determination of the precise mitigating effect of mental illness and can tailor a sentence to
reflect “society’s recognition of the defendant’s lack of
moral culpability for his offense.” Senate Report 102.
Accounting for mental illness that does not create reasonable doubt as to mens rea at the sentencing stage
can “eliminate some of the confusion and inconsistency
which results from considering mental illness” as an allor-nothing limitation on criminal liability and can ensure that “treatment [is provided] for offenders in appropriate circumstances.” Idaho State Senate, Statement of Purpose, S.B. 1396, 46th Leg., 2d Reg. Sess.
(1982) (enacting Idaho’s mens-rea-based statute).
14
B. The Due Process Clause Neither Forecloses Kansas’s
Mens Rea Approach Nor Requires A Right-And-Wrong
Test Of Insanity
Petitioner contends (Br. 15, 41) that the Due Process
Clause requires Kansas to excuse criminal liability for
a “larger category of morally incapacitated defendants”
by expanding the legal excuse of insanity to encompass
consideration of “the defendant’s ability to rationally
appreciate right and wrong with respect to his offense.”
Under this Court’s jurisprudence, however, a State’s
treatment of insanity violates due process only if it “offends [a] principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.” Clark, 548 U.S. at 748 (citation omitted; brackets in original). Satisfying that standard “entails no
light burden,” id. at 749, and petitioner cannot carry it.
When a “rule has considerable justification,” as Kansas’s does, that “alone casts doubt upon the proposition
that the opposite rule is a ‘fundamental principle.’ ”
Egelhoff, 518 U.S. at 49 (plurality opinion). And as a
historical matter and still today, approaches to mental
illness as an excuse for criminal liability have widely
varied, with “no particular formulation * * * evolv[ing]
into a baseline for due process.” Clark, 548 U.S. at 752.
This Court has thus repeatedly refused to constitutionalize any specific approach to insanity claims, and it
should refuse again here.
1. The mens rea approach has historical roots in the
English common law
At the time of the Framing, English jurists varied
widely on the circumstances in which mental illness
should excuse criminal conduct, with no clear consensus
on the proper legal test of insanity. Kansas’s mens rea
15
approach is consistent with early articulations of the insanity standard, which required total cognitive impairment that prevented a defendant from forming criminal
intent.
a. Historically, recognition of insanity as an excuse
for criminal liability was often justified on the ground
that, “as a murder or other felony requires a mens rea,
an insane person could not commit such felony, since he
did not have capacity to have a mens rea.” Homer D.
Crotty, The History of Insanity as a Defence to Crime
in English Criminal Law, 12 Calif. L. Rev. 105, 110
(1924) (Crotty). Some early approaches to insanity accordingly required complete cognitive incapacity that
prevented the defendant from knowing the nature and
quality of his act. See, e.g., S. Sheldon Glueck, Mental
Disorder and the Criminal Law—A Study in MedicoSociological Jurisprudence 126-127 (1927) (Glueck).
In what became known as the “wild beast” test, for
example, Henry de Bracton defined insane individuals
in the thirteenth century as those whose mental capacity was akin to that of a “brute animal.” Anthony M.
Platt, The Origins and Development of the “Wild
Beast” Concept of Mental Illness and Its Relation to
Theories of Criminal Responsibility, 1 Issues in Criminology 1, 5-6 (1965) (citing translation from Latin) (citations and internal quotation marks omitted); see John
Biggs, The Guilty Mind 82 (1955) (translating Bracton’s reference in his 1256 treatise on English law to
men who “are not greatly removed from beasts for they
lack reasoning”). The wild beast test was employed
through at least the nineteenth century, with one canonical case explaining that “it is not every kind of frantic
humour or something unaccountable in a man’s actions,
16
that points him out to be 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.” Rex v. Arnold, 10 George
I 695, 764-765 (Ct. Common Pleas 1724). Similarly, in
1812, Lord Chief Justice Mansfield defined insanity in
Bellingham’s Case (I George Dale Collinson, A Treatise
on The Law concerning Idiots, Lunatics, and Other
Persons Non Compotes Mentis 636 (1812)) to require
that “all power of entertaining any intention whatsoever
* * * be lost before one can be excused from criminal
responsibility on the basis of mental unsoundness.”
Glueck 149-150.
Early English treatises likewise linked the legal definition of insanity to the defendant’s lack of mens rea.
In 1628, Sir Edward Coke wrote that in criminal cases,
“Actus non facit reum, nisi mens sit rea [the act does
not make a person guilty, unless the mind be guilty],”
and described a legally insane person as “without his
mind or discretion.” I Edw. Coke, The First Part of the
Institutes of the Lawes of England § 405, at 248 (1628);
see Glueck 131 (describing how Coke “recognized the
necessity of a guilty mind as the basis of every crime,
and agreed with Bracton that an insane person can have
no criminal intent”). Lord Matthew Hale wrote that a
defendant’s insanity should excuse criminal behavior
because he cannot act “animo felonico [with felonious
intent].” I Matthew Hale, The History of the Pleas of
the Crown 37 (1736) (written before Hale’s death in
1676). And John Brydall’s treatise on insanity published in 1700 stated that “No Felony, or Murder, can
be committed without a Felonious Intent, or Purpose.”
17
John Brydall, Non Compos Mentis: Or, the Law Relating to Natural Fools, Mad-Folks, and Lunatick Persons, Inquisited, and Explained, for Common Benefit
75 (1700).
Even early formulations that used the language of
moral culpability were sometimes closely intertwined
with the absence of mens rea. Initially, some jurists observed that if a defendant had complete cognitive incapacity that prevented distinguishing right and wrong,
he could not form criminal intent. As Lord Mansfield
stated in Bellingham’s Case, “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.” Glueck 149
(quoting Lord Mansfield). Similarly, Michael Dalton
wrote that “[i]f one that is Non compos mentis, or an
ideot, kill a man, this is no Felony; for they have not
knowledge of good and evil, nor can have a Felonious
intent, nor a will or mind to do harm.” Michael Dalton,
The Countrey Justice 283 (1666); see Anthony Platt &
Bernard L. Diamond, The Origins of the “Right and
Wrong” Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical
Survey, 54 Calif. L. Rev. 1227, 1235 (1966).
b. In 1843, M’Naghten’s Case set forth an insanity
test that treated a defendant’s ability to distinguish
right and wrong as conceptually distinct from the absence of criminal intent. 8 Eng. Rep. 718 (H.L. 1843).
That test recognized a claim of insanity if the defendant
was “labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality
of the act he was doing; or, if he did know it, that he did
18
not know he was doing what was wrong.” 8 Eng. Rep.
at 722. While the first component of the M’Naghten
standard “asks about cognitive capacity,” and is thus
congruent to Kansas’s approach, the “second part presents an ostensibly alternative basis for recognizing a
defense of insanity understood as a lack of moral capacity.” Clark, 548 U.S. at 747.
Although M’Naghten proved influential, “[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.” Clark, 548 U.S. at 749.
The development and evolution of other insanity standards continued, such as tests that turned on a defendant’s volitional incapacity. See, e.g., Regina v. Oxford,
173 Eng. Rep. 941, 950 (Cent. Crim. Ct. 1840) (using
what became known as the “irresistible impulse” test,
which asks “[i]f some controlling disease was, in truth,
the acting power within [the defendant] which he could
not resist”); but see Regina v. Burton, 176 Eng. Rep.
354, 357 (Civ. Ct. 1863) (rejecting the irresistible
impulse test and characterizing it as “a most dangerous
doctrine”).
Even courts purporting to follow M’Naghten were
themselves long in disagreement about whether a rightand-wrong test of insanity should focus on the defendant’s capacity to understand that his conduct is legally
wrong or morally wrong. As one English jurist summarized the issue:
A kills B knowing that he is killing B, and knowing
that it is illegal to kill B, but under an insane delusion
that the salvation of the human race will be obtained
by his execution for the murder of B, and that God
has commanded him (A) to produce that result by
19
those means. A’s act is a crime if the word “wrong”
means illegal. It is not a crime if the word wrong
means morally wrong.
II James Fitzjames Stephen, A History of The Criminal Law of England 149 (1883). English courts eventually settled on reading M’Naghten to “requir[e] that the
defendant know that the act was legally wrong.”
1 Wayne R. LaFave, Substantive Criminal Law
§ 7.2(b), at 538 (2d ed. 2003) (LaFave) (citing Regina v.
Windle, 2 Q.B. 826 (Eng. 1952)).
c. English courts have also varied over time on
whether insanity should foreclose criminal liability altogether or be taken into account following conviction.
“Though the early law excused the insane offender from
the punishment of the felon, it did not in all cases let him
go free.” Crotty 111. Under the “usual practice,” the defendant “was imprisoned and stayed in prison until the
king gave him a charter of pardon.” Ibid. By the fourteenth century, English courts began recognizing insanity as justification for acquittal of a crime. See, e.g.,
III W. S. Holdsworth, A History of English Law § 8, at
372-373 & n.9 (3d ed., rewritten, 1923). But the insanity
defense’s historical roots demonstrate that insanity initially was understood only “to be good grounds for mitigation of punishment.” Id. §8, at 372.
2. American practices likewise permit a mens rea approach to insanity claims
In the United States, legislatures have similarly formulated different insanity standards based on evolving
medical knowledge and policy judgments, and the mens
rea standard has long been viewed as a reasonable option. The right-and-wrong standard of insanity—which
is itself subject to considerable variation in whether it
20
focuses on legal or moral wrongs—has never been universally applied at any time throughout history. And
the wide variation in insanity approaches over time and
in current use illustrate that no single approach to insanity can be viewed as “fundamental.” See Egelhoff,
518 U.S. at 48 (plurality opinion).
a. Since the Founding, U.S. jurisdictions have
adopted a variety of insanity standards. The first case
in the United States that cited the M’Naghten test also
referenced the inability to form criminal intent and the
irresistible impulse test. Commonwealth v. Rogers,
48 Mass. (1 Met.) 500, 501-502 (1844). The irresistible
impulse test gained popularity during the nineteenth
century, see Donald H. J. Hermann, The Insanity Defense: Philosophical, Historical and Legal Perspectives 38 (1983), with some jurisdictions at times defining
insanity based only on volitional capacity, without reference to the right-and-wrong standard, see Abraham
S. Goldstein, The Insanity Defense 67 (1967). In 1870,
New Hampshire rejected M’Naghten and adopted the
“product” test, under which a defendant is excused if his
crime “was the offspring or product of mental disease.”
State v. Pike, 49 N.H. 399, 441-442 (1870). And States
that used a right-and-wrong test of insanity divided on
whether the defendant must lack capacity to know his
conduct was legally wrong or morally wrong. Compare,
e.g., Harrison v. State, 69 S.W. 500 (Tex. Crim. App.
1902) (employing legal wrongfulness standard), and
Watson v. State, 180 S.W. 168 (Tenn. 1915) (same), with
State v. Spencer, 21 N.J.L. 196 (1846) (employing moral
wrongfulness standard), and People v. Schmidt,
110 N.E. 945 (N.Y. 1915) (same).
At the same time, for at least a century, legislatures
and commenters have considered arguments that the
21
insanity test should focus on mens rea rather than other
measures of diminished capacity. See Edwin R. Keedy,
Insanity and Criminal Responsibility, 30 Harv. L.
Rev. 535, 535-536 (1917) (describing criminal responsibility bill advanced by the American Institute of Criminal Law and Criminology in 1915, which advocated the
mens rea approach); Norval Morris, The Criminal Responsibility of the Mentally Ill, 33 Syracuse L. Rev.
477, 499, 510 (1982). Notably, Members of Congress
and the Department of Justice advocated for a mens rea
approach during efforts to reform the insanity defense
in the 1970s and 1980s. E.g., Insanity Defense Hearings 26-56 (testimony by Justice Department officials);
Reform of the Federal Criminal Laws: Hearings Before the Subcomm. on Criminal Laws and Procedure of
the Senate Comm. on the Judiciary, 93d Cong., 2d Sess.
6808-6822 (1974) (Justice Department testimony and
memorandum advocating a mens rea standard); United
States v. Pohlot, 827 F.2d 889, 899 & n.9 (3d Cir. 1987)
(summarizing history of support for the mens rea approach, including bills presented by Senators Hatch,
Pressler, Zorinsky, and Biden), cert. denied, 484 U.S.
1011 (1988). Although Congress ultimately enacted a
different standard of insanity in 18 U.S.C. 17, Congress
recognized that the mens rea approach did not “suffer[]
from constitutional defects” because it permitted consideration of mental illness in determining whether
“mental state requirements” were satisfied. H.R. Rep.
No. 577, 98th Cong., 1st Sess. 7 (1983).
b. The result of this longstanding policy debate is
wide contemporary variation in when and how a claim
of insanity should excuse a defendant from criminal liability. “Even a cursory examination of the traditional
22
Anglo-American approaches to insanity reveals significant differences among them,” with “a diversity of
American standards.” Clark, 548 U.S. at 749.
Four States, including Kansas, do not have an affirmative insanity defense, but instead “allow mentaldisease and capacity evidence to be considered * * *
when deciding whether the prosecution has proven
mens rea beyond a reasonable doubt.” Clark, 548 U.S.
at 768; see p. 10, supra (citing statutes); see also Alaska
Stat. §§ 12.47.010(a), 12.47.020 (2018) (codification of
mens rea standard, along with an apparently overlapping affirmative defense if the defendant is unable “to
appreciate the nature and quality of [his] conduct”). In
those jurisdictions, “the evidence of mental disease or
incapacity need only support what the factfinder regards as a reasonable doubt about the capacity to form
(or the actual formation of) the mens rea, in order to
require acquittal of the charge.” Clark, 548 U.S. at 768.
Many States and the federal government follow
some form of M’Naghten. See LaFave § 7.2(a), at 527528. Several of those jurisdictions omit the first component of the test—whether the defendant knew the “nature and quality of the act”—and instead define insanity
based solely on the defendant’s inability to differentiate
right from wrong. Id. § 7.2(a), at 527-528 n.7 (2003 &
Supp. 2016-2017). The jurisdictions also divide on
whether the defendant may invoke the insanity defense
if he understood his conduct violated the law but believed that his actions were morally justified. Compare,
e.g., People v. Skinner, 704 P.2d 752, 764 (Cal. 1985)
(allowing such a defense); State v. Worlock, 569 A.2d
1314, 1322 (N.J. 1990) (same); State v. Ulm, 326 N.W.2d
159, 161 (Minn. 1982) (same); People v. Wood, 187
N.E.2d 116, 121 (N.Y. 1962) (same), with Finger v.
23
State, 27 P.3d 66, 84-85 (Nev. 2001) (disallowing such a
defense), cert. denied, 534 U.S. 1127 (2002); State v.
Crenshaw, 659 P.2d 488, 493 (Wash. 1983) (same); State
v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979) (same).
Other jurisdictions use some form of the American
Law Institute test, which recognizes an insanity defense if the defendant “lack[ed] substantial capacity either to appreciate the criminality [wrongfulness] of his
conduct or to conform his conduct to the requirements
of law,” I Model Penal Code and Commentaries
§ 4.01(1), at 163 (1985) (Model Penal Code) (brackets in
original). See LaFave § 7.5(b), at 560. Those jurisdictions, like the M’Naghten jurisdictions, divide on
whether the defendant must appreciate that his conduct
was legally or instead morally wrong, as the “drafters
* * * left to each jurisdiction a choice between the
terms ‘wrongfulness’ and ‘criminality.’ ” State v. Johnson, 399 A.2d 469, 477 (R.I. 1979). Still other States
have adopted unique insanity standards. See State v.
Cegelis, 638 A.2d 783 (N.H. 1994) (using the “product”
approach); N.D. Cent. Code § 12.1-04.1-01(1)(a) (2012)
(considering, inter alia, whether the defendant’s conduct resulted from “a serious distortion of the [defendant’s] capacity to recognize reality”).
States also take different approaches to insanity by
“limit[ing], in varying degrees, which sorts of mental illness or defect can give rise to a successful insanity defense.” Clark, 548 U.S. at 750 n.11; see LaFave
§ 7.2(a), at 528-534; Resp. Br. 31. Under the federal
standard, for example, the defendant must have a “severe” mental disease or defect. 18 U.S.C. 17(a). Other
jurisdictions exclude specific types of disorders from
excusing criminal conduct, such as psychosexual disor-
24
ders, e.g. Ariz. Rev. Stat. Ann. § 13-502 (2010), personality disorders, Or. Rev. Stat. § 161.295(2) (2017), or
mental illnesses caused by long-term substance abuse,
even if the defendant is not under the temporary influence of an intoxicating substance at the time of the offense, Bieber v. People, 856 P.2d 811, 818 (Colo. 1993),
cert. denied, 510 U.S. 1054 (1994). And a number of jurisdictions follow the Model Penal Code, which provides
that the insanity defense cannot be based on “abnormality manifested only by repeated criminal or otherwise
antisocial conduct.” Model Penal Code § 4.01(2), at 163;
e.g., Ind. Code Ann. § 35-41-3-6(b) (LexisNexis 2009).
Those varying approaches, like the others across jurisdictions and over time, refute petitioner’s claim that a
right-and-wrong test of insanity is a fundamental principle of law.
3. This Court’s precedents confirm that Kansas’s approach to insanity is constitutional
Recognizing the wide variety of historical and contemporary approaches to insanity, this Court has repeatedly rejected claims that the Constitution requires
the States to adopt a particular insanity test. Clark,
548 U.S. at 752-753; Leland v. Oregon, 343 U.S. 790,
800-801 (1952); see Powell, 392 U.S. at 536 (plurality
opinion). The analysis in those cases confirms that petitioner cannot carry his burden of demonstrating that
the Due Process Clause forbids the approach that Kansas and like-minded States have chosen.
In Clark, this Court rejected the defendant’s argument that the “M’Naghten test represents the minimum that a government must provide in recognizing an
alternative to criminal responsibility on grounds of
mental illness or defect.” 548 U.S. at 748. Clark in-
25
volved a state statute that recognized insanity as a defense if the defendant “did not know the criminal act
was wrong,” but did not separately excuse his conduct
if he did not know the nature or quality of his action. Id.
at 744 n.2 (citation omitted). The Court acknowledged
that a substantial number of jurisdictions had “adopted
a recognizable version of the M’Naghten test with both
its cognitive incapacity and moral incapacity components.” Id. at 750. But the Court found that the diverse
legal landscape foreclosed any constitutional requirement to define insanity based on the M’Naghten standard. Id. at 753.
Similarly, in Leland, this Court held that due process
did not require Oregon to adopt the irresistible-impulse
approach in lieu of M’Naghten. 343 U.S. at 800-801.
The Court explained that “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.” Id. at 801.
Because “[t]his whole problem has evoked wide disagreement among those who have studied it,” with no
consensus on an insanity standard, the Court found it
“clear that adoption of the irresistible impulse test is
not ‘implicit in the concept of ordered liberty.’ ” Id. at
801 (citation omitted); see id. at 803 (Frankfurter, J.,
dissenting on other grounds) (observing that “it would
be indefensible to impose upon the States, through the
due process of law * * * , one test rather than another
for determining criminal culpability, and thereby to displace a State’s own choice of such a test”).
Likewise, in Powell, a plurality of the Court reiterated that “[n]othing could be less fruitful than for this
Court to be impelled into defining some sort of insanity
26
test in constitutional terms.” 392 U.S. at 536. The plurality cited “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.” Id. at
535-536. Selection of an appropriate insanity standard,
the plurality explained, had always been “the province
of the States.” Id. at 536; id. at 545 (Black, J., concurring) (noting “the indefensibility of imposing on the
States any particular test of criminal responsibility”).
Petitioner has not identified any heretofore unrecognized fundamental principle that would support constitutionalizing his preferred approach to insanity claims.
“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. Instead, the legal approaches for which forms of mental illness should “excuse from conventional criminal responsibility” are
“subject to flux and disagreement.” Id. at 752. No
sound reason exists for this Court to sharply depart
from its prior analysis by “formulating a constitutional
rule” that “would reduce, if not eliminate, th[e] fruitful
experimentation [among the States], and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold,” Powell, 392 U.S. at
536-537 (plurality opinion).
C. Legislatures Are Better Situated Than Courts To Make
The Moral Judgments Necessary To Decide When
Mental Illness Should Excuse Criminal Liability
Judicial override of legislative policymaking in the
sensitive and evolving area of insanity claims would be
not only doctrinally and historically insupportable, but
also practically unworkable. The Due Process Clause
27
provides no guidance on which manifestations of mental
illness should wholly excuse criminal liability, and petitioner’s amorphous proposal for a constitutional rule focused on blameworthiness would involve difficult line
drawing that courts are ill-equipped to perform.
The constitutional rule that petitioner proposes—
that States must adopt “some mechanism, using some
standard,” under which “a person whose mental state
renders them blameless cannot be held criminally accountable,” Pet. Br. 37—raises more questions than it
answers. If “blamelessness” is intended to encompass
all defendants who assert moral incapacity, the rule
would cast doubt on the numerous state laws that restrict insanity claims based on type of mental illness or
on whether the defendant knew his acts were legally
wrong rather than morally wrong. If petitioner’s test
instead encompasses only some assertions of moral incapacity, courts would have to determine degrees of
blameworthiness as a constitutional matter, with no
clear guidance from text, history, or precedent on how
to do so.
Courts have no discernable standards by which to assess, for example, whether someone whose mental illness makes him unable to control his conduct should be
deemed more culpable than someone whose mental illness makes him unable to “tell right from wrong,” Pet.
Br. 42 (citation omitted). Nor, for that matter, is it even
clear what it means to be able to “tell right from wrong.”
Although petitioner would apparently excuse a “defendant who believes that a wolf has ordered him to kill the
victim,” id. at 41 (citation, ellipses, and internal quotation marks omitted), he fails to explain why such a defendant should necessarily be deemed less culpable
than a non-delusional but easily manipulated defendant
28
who commits a murder on the orders of a family member. Other slippery-slope problems abound. For example, the Constitution does not clearly distinguish between moral incapacitation that results from a defendant’s own long-term substance abuse, that manifests itself only as criminal psychosis, or that is caused by
other particular types of mental illness. It is one thing
for legislatures to draw such distinctions, see pp. 23-24,
supra (citing statutes); it is quite another for judges to
divine them from the Due Process Clause.
Petitioner cannot avoid such difficult questions by
characterizing his rule (Br. 36) as a modest constitutional floor that would leave States with “ample leeway
to experiment with the formulation of the insanity defense.” Not only is petitioner’s test amorphous, but a
court would have to draw broad constitutional lines on
highly debatable issues simply to cover the circumstances of petitioner’s own case. Petitioner has never
contended that he could not tell right from wrong in either a legal or moral sense, and the evidence would not
support such a claim. See J.A. 48 (petitioner’s expert’s
testimony that petitioner “was in great conflict about
what he was doing”); J.A. 72 (petitioner’s expert’s report stating that petitioner “was sorry for what happened”); J.A. 52 (petitioner’s acknowledgment when he
surrendered that he knew why officers were looking for
him). Instead, petitioner contends (Br. 11) that he is
blameless because he “did not make a genuine choice to
kill his family members,” in light of an asserted mental
illness. Very few jurisdictions recognize an insanity defense based on that form of volitional incapacity, however, and this Court has previously recognized that due
process does not require the irresistible impulse test.
29
See Leland, 343 U.S. at 801. Constitutionalizing an insanity rule that would sweep so broadly as to encompass
petitioner would vastly expand the defense in many jurisdictions and override numerous legislative judgments.
Such a dramatic expansion of the Due Process
Clause is legally untenable and practically unsound.
Legislatures, rather than courts, are best positioned to
choose among competing theories of moral blameworthiness and to make fine-tuned judgments about when
mental illness or other conditions should excuse criminal responsibility. See Fisher v. United States, 328 U.S.
463, 475-476 (1946) (recognition of a doctrine excusing
criminal acts based on “partial responsibility” would be
“more properly a subject for the exercise of legislative
power”); Patterson, 432 U.S. at 210 (recognizing that
“more subtle balancing of society’s interests against
those of the accused ha[s] been left to the legislative
branch”). While other legislatures can and have made
different judgments, Kansas’s legislature was entitled
to conclude that a mental impairment that does not create reasonable doubt as to mens rea does not fully eliminate the moral blameworthiness of the criminal act or
bear on the justness of a criminal conviction—particularly when mental illness can be considered in assessing
culpability at sentencing. The Due Process Clause provides no basis to reject that legislative judgment and
ossify petitioner’s particular underspecified theory of
moral culpability.
II. THE EIGHTH AMENDMENT DOES NOT PROHIBIT
KANSAS FROM ADOPTING A MENS REA APPROACH
TO INSANITY CLAIMS
For the first time in this Court, petitioner raises (Br.
29) an argument that the Eighth Amendment prohibits
30
criminalizing the conduct of an individual who cannot
“rationally appreciate that his actions are wrong.” That
argument is not properly before the Court because petitioner did not preserve it and the Kansas courts did
not address it. In any event, the argument lacks merit.
A. Petitioner Did Not Preserve The Eighth Amendment Argument He Advances In This Court
In the state-court proceedings, the only Eighth
Amendment claim petitioner raised challenged the constitutionality of Kansas’s death penalty. See D. Ct. Doc.
100, at 1-8 (June 2, 2011); Pet. C.A. Br. 1, 61-71 (arguing
that a death sentence is categorically disproportionate
for mentally ill offenders). Petitioner never contended
that the Eighth Amendment, separate and apart from
the Due Process Clause, prohibits convicting mentally
ill offenders. The Supreme Court of Kansas accordingly
understood petitioner to challenge his conviction only
under due process, not the Eighth Amendment. See
J.A. 242-245. And in rejecting the claim, the court discussed only due process, not the Eighth Amendment.
Ibid. Because the Eighth Amendment argument petitioner now pursues was not pressed or passed on below,
it is not properly before this Court.
B. Kansas’s Approach To Insanity Claims Does Not Violate The Eighth Amendment
In any event, petitioner is wrong to contend (Br. 29)
that the Eighth Amendment—which addresses punishment, not guilt—precludes criminalizing the conduct of
mentally ill offenders.
1. By its terms, the Eighth Amendment is concerned
with “cruel and unusual punishments”—not with substantive liability. U.S. Const. Amend. VIII (emphasis
added). Thus, “[t]he primary purpose” of the Eighth
31
Amendment “has always been considered, and properly
so, to be directed at the method or kind of punishment
imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant
only to the fitness of the punishment imposed.” Powell,
392 U.S. at 531-532 (plurality opinion).
In arguing that the Eighth Amendment nevertheless
forecloses conviction of offenders like him, petitioner
relies (Br. 29) on Robinson v. California, 370 U.S. 660
(1962), in which this Court held that a state statute that
made it a crime to be addicted to narcotics violated the
Eighth Amendment. Id. at 660, 665-666. Robinson has
no application here. The Court in Robinson emphasized
that the statute at issue there did not require the State
to show that the defendant ever used narcotics, but instead made “the ‘status’ of narcotic addiction a criminal
offense.” Id. at 665-666. Petitioner here, in contrast,
was not convicted of a “status” crime of being mentally
ill; he was convicted of committing a quadruple murder.
Indeed, the plurality opinion in Powell squarely rejected the Robinson-based argument petitioner presses.
The defendant in Powell argued that the Eighth
Amendment prohibited his conviction for public intoxication because he was a chronic alcoholic. 392 U.S. at
532. But the plurality opinion rejected that argument
because “[t]he 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, which society has an interest in preventing,” and
the defendant in Powell “was convicted, not for being a
chronic alcoholic, but for being in public while drunk on
a particular occasion.” Id. at 532-533. Likewise here,
32
petitioner was convicted, not for being mentally ill, but
for committing multiple murders.
As the plurality in Powell recognized, extending the
Eighth Amendment’s scope beyond the circumstances
of Robinson would inappropriately cast the Court as
“the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law,
throughout the country.” 392 U.S. at 533. The same
logic applies with even greater force here, where petitioner seeks a constitutional excuse for his brutal murders. Because Robinson “does not deal with the question of whether certain conduct cannot constitutionally
be punished because it is, in some sense, ‘involuntary’
or ‘occasioned by compulsion,’ ” ibid., petitioner’s
Eighth Amendment argument fails from the outset.
2. Even if the Eighth Amendment were extended to
restrict substantive criminal law beyond Robinson’s
scope, petitioner cannot establish that Kansas’s mens
rea definition of legal insanity constitutes cruel and unusual punishment.
To the extent that petitioner suggests (Br. 29) that
history requires a right-or-wrong test of insanity, that
historical argument is inaccurate, as previously described. See pp. 14-21, supra. And to the extent that
he asserts that it would be cruel and unusual to convict
and criminally punish an individual who is “wholly unable to comprehend the nature and quality of [his] act,”
Pet. Br. 29-30 (citation omitted), that issue is not presented here because Kansas’s mens rea approach would
not require such a conviction. If a defendant suffers
from such cognitive incapacity that he does not understand his actions—for example, if he thinks he is shooting a robot rather than a human—he will not have the
mens rea for the crime. See Clark, 548 U.S. at 767-768.
33
In this case, however, petitioner was well aware that he
was killing his family members. See J.A. 62, 232 (recording of petitioner during murders saying, “I am going to kill her”).
Nor can petitioner establish that a criminal conviction is categorically disproportionate when an offender
does not understand the wrongfulness of his conduct.
Kansas permits an individualized determination of how
mental illness affects culpability at the sentencing
stage, refuting petitioner’s claim (Br. 32) that a criminal
conviction will necessarily result in punishment that
might be viewed as disproportionately severe under
Eighth Amendment standards. And contrary to petitioner’s suggestion (Br. 33-35), Kansas could reasonably conclude that convicting and imposing at least some
punishment on an offender who committed a crime with
the prohibited mens rea, but without appreciating the
wrongfulness of his conduct, furthers traditional penalogical goals.
A State could readily determine that the need to protect the community justifies applying the criminal process to incapacitate individuals whose conduct meets all
of the elements of a crime. A State could further determine that such individuals may be deterred since their
convictions turn on proof that they were capable of
forming the prohibited mental state. See Powell, 392
U.S. at 531 (plurality opinion) (declining to find that
“the deterrence justification for penal sanctions” is “ineffective in any particular context or for any particular
group of people who are able to appreciate the consequences of their acts”). Nor is retribution necessarily
inappropriate when a defendant acts with criminal intent. And rehabilitative goals can be served by providing
34
mental health treatment during the period of incarceration. See, e.g., Kan. Stat. Ann. § 22-3430 (Supp. 2017)
(authorizing sentencing court to commit a mentally ill offender to a mental institution when appropriate).
Other States may reach, and have reached, different
conclusions about how best to balance penological goals
when dealing with mentally ill defendants. But the
Eighth Amendment, like the Due Process Clause, does
not displace those legislative judgments and erect categorical substantive criminal law rules in this complex
area.
CONCLUSION
The judgment of the Supreme Court of Kansas should
be affirmed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
ELIZABETH B. PRELOGAR
Assistants to the Solicitor
General
CHRISTOPHER J. SMITH
Attorney
AUGUST 2019
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.