Petition for Writ of Certiorari — James K. Kahler, Petitioner v. Kansas

Supreme Court briefSep 28, 2018

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CAPITAL CASE

No. 18IN THE

Supreme Court of the United States

___________

JAMES K. KAHLER,

KANSAS,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Kansas

___________

PETITION FOR A WRIT OF CERTIORARI

___________

MERYL CARVER-ALLMOND

CLAYTON PERKINS

CAPITAL APPELLATE

DEFENDER

700 SW Jackson Street

Suite 903

(785) 291-3207

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

JEFFREY T. GREEN *

TOBIAS LOSS-EATON

JENNIFER C. RATHMELL

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Petitioner

September 28, 2018

* Counsel of Record

QUESTION PRESENTED

Do the Eighth and Fourteenth Amendments permit

a state to abolish the insanity defense?

(i)

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner is James Kraig Kahler. Respondent is

the State of Kansas. No party is a corporation.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

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

PETITION FOR A WRIT OF CERTIORARI .......

OPINIONS BELOW .............................................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......................................

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

A. Kansas Law ...............................................

B. Factual Background and Trial Court

Proceedings ...............................................

C. Kansas Supreme Court Proceedings ........

REASONS FOR GRANTING THE PETITION ...

I. THE STATES ARE INTRACTABLY SPLIT

OVER WHETHER THE INSANITY DEFENSE IS CONSTITUTIONALLY REQUIRED ........................................................

A. Seven States Recognize A Constitutional

Right To The Insanity Defense. ...............

B. Five States Have Held That Due Process

Does Not Mandate Any Form of Insanity

Defense ......................................................

C. Both Sides’ Positions Are Fully Elucidated And Stable.......................................

II. THE

DECISION

BELOW

INCORRECT .................................................

(iii)

TABLE OF CONTENTScontinued

Page

A. The Centuries-Old Principle That Criminal Punishment Is Reserved For People

Who Can Distinguish Right From Wrong

Is Deeply Ingrained In Our Legal System ............................................................

B. The Dicta And Separate Opinions On

Which Bethel Relied Do Not Resolve The

Question Expressly Reserved in Clark ...

C. The Right To An Insanity Defense Is

Distinct From The Statutory Mens Rea

Element Of The Offense ..........................

III. THIS IS A VITALLY IMPORTANT AND

RECURRING ISSUE ....................................

IV. THIS CASE IS AN IDEAL VEHICLE .........

CONCLUSION .....................................................

APPENDICES

APPENDIX A: Opinion, Kansas v. Kahler, No.

106,981 (Kan. Feb. 9, 2018)...............................

APPENDIX B: Order, Kansas v. Kahler, No.

106,981 (Kan. Apr. 26, 2018) ............................ 69a

APPENDIX C: Corrected Order, Kansas v.

Kahler, No. 106,981 (Kan. May 1, 2018) .......... 70a

APPENDIX D: Death Warrant, Kansas v.

Kahler, No. 09 CR 270 (Dist. Ct. Kan. Oct. 11,

2011) ................................................................... 71a

APPENDIX E: Verdict, Kansas v. Kahler, No.

09 CR 270 (Dist. Ct. Kan. Aug. 29, 2011) ......... 73a

TABLE OF CONTENTScontinued

Page

APPENDIX F: Excerpt of Transcript of Jury

Trial, Kansas v. Kahler, No. 09 CR 270 (Dist.

Ct. Kan. Aug. 23, 2011) ..................................... 79a

APPENDIX G: Diagnostic Interview Report of

Stephen E. Peterson, MD, Kansas v. Kahler,

No. 09 CR 270 (Dist. Ct. Kan. June 3, 2011) .... 110a

APPENDIX H: Report of William S. Logan,

MD, Kansas v. Kahler, No. 09 CR 270 (Dist.

Ct. Kan. May 16, 2011)..................................... 137a

CASES

TABLE OF AUTHORITIES

Page

Ake v. Oklahoma, 470 U.S. 68 (1985) ..........

California v. Ortega, No. C-044635, 2005

WL 1623911 (Cal. Ct. App. July 11,

2005) ..........................................................

California v. Skinner, 704 P.2d 752 (Cal.

1985) ................................................... 10, 11, 14

Clark

Arizona,

548 U.S. 735

(2006) .......................................... 2, 4, 15, 24, 26

Davis v. United States, 160 U.S. 469

(1895) .........................................................

Delling v. Idaho, 133 S. Ct. 504 (2012)..... 2, 3, 25

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

2001) ................................... 9, 10, 14, 17, 18, 19

Ford v. Wainwright, 477 U.S. 399

(1986) ..................................................... 4, 18, 22

Foucha v. Louisiana, 504 U.S. 71 (1992) ....

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

Hardee v. Washington, 256 P.3d 339

(Wash. 2011) ..............................................

Ingles v. Colorado, 22 P.2d 1109 (Colo.

1933) ..........................................................

Jones v. United States, 463 U.S. 354

(1983) ......................................................... 22, 23

Leland v. Oregon, 343 U.S. 790 (1952) ........

Lord v. Alaska, 262 P.3d 855 (Alaska Ct.

App. 2011)..................................................

Louisiana ex rel. Causey, 363 So. 2d 472

(La. 1978)...................................................

Minnesota v. Hoffman, 328 N.W.2d 709

(Minn. 1982) ..............................................

Montana v. Egelhoff, 518 U.S. 37 (1996) .....

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

(1952) ......................................................... 4, 26

vii

TABLE OF AUTHORITIEScontinued

Page

O’Guinn v. Nevada, 59 P.3d 488 (Nev.

2002) ..........................................................

Panetti v. Quarterman, 551 U.S. 930

(2007) .........................................................

Patterson v. New York, 432 U.S. 197

(1977) .........................................................

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

Idaho v. Card, 825 P.2d 1081 (Idaho

1991) ..........................................................

Idaho v. Delling, 267 P.3d 709 (Idaho

2011) ..........................................................

Idaho

Searcy,

798

P.2d

914

(Idaho 1990)........................................ 14, 15, 20

Idaho v. Winn, 828 P.2d 879 (Idaho

1992) ..........................................................

Kansas v. Baker, 819 P.2d 1173 (Kan.

1991) ..........................................................

Kansas v. Bethel, 66 P.3d 840 (Kan.

2003) .............................14, 17, 18, 21, 24, 25, 28

Kansas v. Davis, 85 P.3d 1164 (Kan.

2004) .......................................................... 27, 28

Kansas v. Jorrick, 4 P.3d 610 (Kan.

2000) .......................................................... 3, 25

Kansas v. McLinn, 409 P.3d 1 (Kan.

2018) ..........................................................

Kansas v. White, 109 P.3d 1199

(Kan. 2005) ................................................

Montana v. Cowan, 861 P.2d 884

(Mont. 1993) .............................................. 16, 27

Montana v. Korell, 690 P.2d 992

(Mont. 1984) .............................................. 14, 16

Montana v. Meckler, 190 P.3d 1104 (Mont.

2008) ..........................................................

viii

TABLE OF AUTHORITIEScontinued

Page

Minnesota v. Schroyer, No. A14-0855, 2015

WL 1880204 (Minn. Ct. App. Apr. 27,

2015) ..........................................................

Sinclair v. Mississippi, 132 So. 581 (Miss.

1931) ..........................................................

Stevens v. Mississippi, 806 So. 2d 1031

(Miss. 2001) ...............................................

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

United States v. Baldi, 344 U.S. 561

(1953) .........................................................

United States v. Pohlot, 827 F.2d 889 (3d

Cir. 1987) ................................................... 3, 26

Utah

Herrera,

895

P.2d

359

(Utah 1995)................................................ 14, 15

Utah v. Lafferty, 20 P.3d 342 (Utah

2001) ..........................................................

Utah

Mace,

921

P.2d

1372

(Utah 1996)................................................

Wallace v. Baldwin, 895 F.3d 481 (7th Cir.

2018) ..........................................................

Walters v. Blackledge, 71 So. 2d 433 (Miss.

1954) ..........................................................

Washington v. Ellison, 194 Wash. App.

1033 (2016) ................................................

Washington v. Strasburg, 110 P. 1020

(Wash. 1910) ....................................... 11, 12, 14

CONSTITUTION AND STATUTES

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

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

Alaska Stat. § 12.47 .....................................

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

Kan. Stat. Ann. § 21-5209 (2013) ................

Kan. Stat. Ann. § 22-3220 (2009) ............. 1, 3, 14

TABLE OF AUTHORITIEScontinued

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

Mont. Code Ann. § 46-14-311.......................

Nev. Rev. Stat. § 194.010 .............................

Utah Code Ann. § 76-2-305 ..........................

Page

OTHER AUTHORITIES

Am. Bar. Ass’n, Criminal Justice Mental

Health Standards (1989) ..........................

Andrew P. March, Insanity in Alaska, 98

Geo. L.J. 1481 (2010) ................................

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) ........................................ 20, 21

Francis Bowes Sayre, Mens Rea, 45 Harv.

L. Rev. 974 (1932)...................................... 20, 21

Homer D. Crotty, History of Insanity as a

Defence to Crime in English Criminal

Law, 12 Calif. L. Rev. 105 (1924) .............. 20, 21

Human Rights Watch, Ill-equipped: U.S.

Prisons and Offenders with Mental

Illness (2003), https://goo.gl/wDAsmW.....

Kan. Dep’t of Corr., Purpose of Administrative Segregation & Appropriate Placements, § 20-104(I)(B)(16) ..........................

Marc Rosen, Insanity Denied: Abolition of

the Insanity Defense in Kansas, 8 Kan.

J.L. & Pub. Pol’y 253 (1998) .....................

Lisa A. Callahan et al., The Volume and

Characteristics of Insanity Defense Pleas:

An Eight-State Study, 19 Bull. Am. Acad.

Psychiatry & L. 331 (1991) .......................

TABLE OF AUTHORITIEScontinued

Page

Stephen M. LeBlanc, Cruelty to the

Mentally Ill: An Eighth Amendment

Challenge to the Abolition of the Insanity

Defense, 56 Am. U. L. Rev. 1281

(2007) .................................................... 14, 21, 22

William

Blackstone,

Commentaries ................................................. 4, 20, 21, 27

PETITION FOR A WRIT OF CERTIORARI

Petitioner James Kraig Kahler respectfully petitions for a writ of certiorari to review the judgment of

the Kansas Supreme Court.

OPINIONS BELOW

The opinion of the Kansas Supreme Court is published at 410 P.3d 105. Petition Appendix at 1a–68a

(“Pet. App.”). The relevant order of the trial court is

unpublished.

JURISDICTION

The Kansas Supreme Court issued its opinion on

February 9, 2018. Pet. App. 1a–68a. It denied a motion for rehearing on April 26, 2018 and issued a corrected denial order on May 1, 2018. Id. at 69a–70a.

On July 2, 2018, Justice Sotomayor extended the

time within which to file this petition to and including September 28, 2018. This Court has jurisdiction

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment states in relevant part:

“Excessive bail shall not be required . . . nor cruel and

unusual punishments inflicted.” U.S. Const. amend.

VIII.

The Fourteenth Amendment states in relevant

part: “No state shall . . . deprive any person of life,

liberty, or property, without due process of law.” U.S.

Const. amend, XIV, § 1.

Kan. Stat. Ann. § 22–3220 (2009) states in relevant

part: “It is a defense to a prosecution under any statute that the defendant, as a result of mental disease

or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect

is not otherwise a defense.”

STATEMENT OF THE CASE

In Kansas, along with four other states, it is not a

defense to criminal liability that mental illness prevented the defendant from knowing his actions were

wrong. Even a capital murder defendant need not be

of sound mind. So long as he knowingly killed a human being—even if he did it because he believed the

devil told him to, or because a delusion convinced him

that his victim was trying to kill him, or because he

lacked the ability to control his actions—he is guilty.

This rule defies a fundamental, centuries-old precept of our legal system: People cannot be punished

for crimes for which they are not morally culpable.

Kansas’s rule therefore violates the Eighth Amendment’s prohibition of cruel and unusual punishments

and the Fourteenth Amendment’s due process guarantee. The Court should grant review to answer the

question reserved in Clark v. Arizona: whether “the

Constitution mandates an insanity defense.” 548

U.S. 735, 752 n.20 (2006); see Delling v. Idaho, 133

S. Ct. 504, 506 (2012) (Breyer, J., joined by Ginsburg

& Sotomayor, JJ., dissenting from denial of certiorari) (urging review of this question). The answer to

that question is yes.

A. Kansas Law.

Kansas previously recognized the M’Naghten rule,

under which a defendant is not criminally responsible

“(1) where he does not know the nature and quality of

his act, or, in the alternative, (2) where he does not

know right from wrong with respect to that act.”

Kansas v. Baker, 819 P.2d 1173, 1187 (Kan. 1991). In

1996, however, Kansas adopted a new standard:

“Mental disease or defect” “is a defense to a prosecution under any statute” only insofar as it shows “that

the defendant . . . lacked the mental state required as

an element of the offense charged.” Kan. Stat. Ann.

§ 22–3220 (2009). It is “not otherwise a defense.”

Id. 1

Under this rule, “insanity . . . disappears as a separate defense.” Kansas v. Jorrick, 4 P.3d 610, 618

(Kan. 2000). By “abandon[ing] lack of ability to know

right from wrong as a defense,” Pet. App. 35a, Kansas

has narrowed the mental-capacity inquiry solely to

whether the defendant was capable of forming the

intent required to commit the offense—regardless of

why he thought he was doing it or whether he knew

it was wrong. The difference is significant: “Only in

the rare case . . . will even a legally insane defendant

actually lack the requisite mens rea purely because of

mental defect.” United States v. Pohlot, 827 F.2d 889,

900 (3d Cir. 1987). Even “a man who commits murder because he feels compelled by demons still possesses the mens rea required for murder.” Id.; see

Delling, 133 S. Ct. at 506. Thus, in Kansas—and

Alaska, Idaho, Montana, and Utah, which share the

same rule—“[i]t no longer matters whether the defendant is insane; i.e., whether the defendant is unable to know the nature and quality of his actions or

know the difference between right and wrong with

respect to his actions.” Marc Rosen, Insanity Denied:

Abolition of the Insanity Defense in Kansas, 8 Kan.

J.L. & Pub. Pol’y 253, 261 (1998).

1 The phrasing of this provision was tweaked during a 2011

recodification, but the substance remains identical. Kan. Stat.

Ann. § 21–5209 (2013); see also Kansas v. McLinn, 409 P.3d 1,

11 (Kan. 2018) (discussing the change). The 2009 version applies here.

This is unconstitutional. The Due Process Clause

prohibits criminal liability that “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 (alteration in original). The Eighth

Amendment similarly bars criminal punishment that

either was “condemned by the common law in 1789”

or violates “fundamental human dignity” as reflected

in “objective evidence of contemporary values.” Ford

v. Wainwright, 477 U.S. 399, 405–06 (1986). Kansas’s rule flunks both tests. The insanity defense—

and the requirement that the defendant be able to

“choose between good and evil,” see Morissette v.

United States, 342 U.S. 246, 250 (1952)—is deeply

rooted in the Anglo-American legal tradition. See 4

William Blackstone, Commentaries, *24–25. And the

overwhelming majority of states have always permitted an insanity defense that includes this inquiry.

Clark, 548 U.S. at 750–52.

For these reasons, at least seven states hold that

due process or Eighth Amendment principles (or

both) require a state to provide an insanity defense.

See infra § I.A. Five states, however, hold that the

Constitution imposes no such requirement. See infra

§ I.B. There is thus a clear and acknowledged split

on this question. Clark held that states have substantial leeway to determine the insanity defense’s

precise parameters and procedures, 548 U.S. at 748–

55, but did not decide whether some minimum form

of the defense is constitutionally required, id. at 752

n.20. This case squarely presents that question.

B. Factual Background And Trial Court

Proceedings.

Kraig Kahler was convicted of capital murder and

sentenced to death for killing four members of his

family while suffering from depression so severe that

he experienced extreme emotional disturbance, dissociating him from reality. Although he knew that he

was shooting human beings, his mental state was so

disturbed at the time that he was unable to control

his actions. If these events had taken place in any of

the 46 states (or the District of Columbia) that recognize an insanity defense, Mr. Kahler would have been

able to adduce evidence to show that his mental state

prevented him from conforming his actions to the

law. Instead, he was convicted of capital murder—

and sentenced to death.

Mr. Kahler enjoyed a happy marriage, loving family, and successful career for many years. Pet. App.

8a, 139a–40a. Indeed, his identity depended on these

pillars, id. at 129a, 133a–34a, and he was fixated on

the need to control his family and present a “perfect”

image to the world, id. at 92a–94a. In late 2008, his

marriage started to show signs of trouble, and his

wife Karen began an extramarital affair. Id. at 114a,

140a–41a. By early 2009, the Kahlers were on the

path to divorce. Id. at 117a. Mr. Kahler was bewildered, completely unable to understand how his

seemingly perfect life had fallen apart so quickly. Id.

He was arrested in March 2009 for assaulting Karen

and began to unravel. Id. at 9a, 143a.

In spring and summer 2009, Mr. Kahler became obsessed with his wife and the demise of their marriage. He became estranged from his teenaged daughters, whom he felt took their mother’s side in the divorce. Id. 119a–20a. He slept three or four hours per

night (as opposed to his usual eight or nine), was unable to focus, lost interest in his normal activities,

and became suicidal. Id. at 117a, 123–24a.

Although Mr. Kahler saw several psychologists and

psychiatrists during this time period, and was prescribed antidepressants, anti-anxiety medications,

and sleep aids, he refused to take most of the medications as directed. Pet. App. 117a-18a, 129a. His depression and obsessive-compulsive disorder became

more and more severe, and in fall 2009 he lost his job,

as he was unable to perform his duties. Id. at 9a,

98a–99a. As a consequence of his severe depression,

he “lost a great deal of his judgment,” id. at 100a, and

his IQ tested lower than it should have, id. at 84a.

Around Thanksgiving 2009, Mr. Kahler drove to

Karen’s grandmother’s house, where he knew Karen

and the children were spending time over the holiday

weekend, and killed Karen, his daughters Lauren

and Emily, and Karen’s grandmother. Pet. App. 10a.

A LifeAlert recording of the shootings captured Mr.

Kahler exclaiming, “Oh s**t! I am going to kill

her . . . God damn it!,” id. at 115a, in a tone indicating disbelief and dissociation from what was happening, see id. at 101a–02a.

After he was arrested and charged, two forensic

psychiatrists evaluated Mr. Kahler over several

months, one serving as expert for the prosecution and

one as expert for the defense. Both experts agreed

that he exhibited major depressive disorder, as well

as obsessive-compulsive, borderline, paranoid, and

narcissistic personality tendencies. Id. 128a, 152a–

55a. The doctors disagreed only in their assessment

of the severity of his symptoms and his capacity for

organized thought as a result. Id. at 133a–36a,

154a–55a. Dr. Peterson, the defense expert, found

that Mr. Kahler may have suffered from “stress induced short-term dissociation,” which would explain

his ongoing inability to recall his actions, despite

normally excellent recall. Id. 129a, 133a, 135a. He

further explained that people “with major depression

can become so impaired that they actually are psy-

chotic and impaired to the point they do not have

judgment.” Id. at 100a. 2

In his interviews with Dr. Peterson, Mr. Kahler

seemed not to comprehend what he had done, and

“could not let himself feel any emotions about their

deaths.” Pet. App. 121a. He was unable to empathize

with his daughters, calling them “rotting corpses,”

and continued to obsess over Karen’s behavior and

decision to leave the marriage. Id. at 120a. Nearly

one year after the shootings, Mr. Kahler remained

unable to remember anything that had happened in

the time between him leaving his parents’ house to

drive to Karen’s grandmother’s house and surrendering to law enforcement the morning after the shootings. Id. at 121a, 129a. The severity of his mental

illness, in Dr. Peterson’s opinion, meant that Mr.

Kahler did not make a rational choice to kill his family members, but “felt compelled and . . . basically

for . . . at least that short period of time completely

lost control.” Id. at 102a.

Under Kansas law, however, the jury was not able

to consider any of this evidence to determine whether

Mr. Kahler was criminally insane at the time of the

shootings. Further, although Mr. Kahler sought diminished-capacity and affirmative-defense jury instructions at the guilt phase of the trial, the court rejected his request. Pet. App. 34a–36a. Rather, the

jury was only able to consider Mr. Kahler’s mental

illnesses to determine whether he had the requisite

2 Consistent with the narrow inquiry now permitted by Kansas law, Dr. Logan, the prosecution expert, concluded that “Mr.

Kahler retained the ability to form intent,” but did not address

Mr. Kahler’s ability to discern right from wrong or conform his

actions to that understanding. Pet. App. 155a.

intent to commit murder. Id. at 35a–36a. Mr. Kahler

was convicted in August 2011. Id. at 73a–78a.

The same jury returned a death verdict, and in October 2011, the trial court formally sentenced Mr.

Kahler to death. Pet. App. 71a–72a. Only at this

point, in the sentencing phase, was the jury allowed

to consider Mr. Kahler’s mental state for mitigation

purposes. Id. at 71a–78a.

C. Kansas Supreme Court Proceedings.

The Kansas Supreme Court affirmed Mr. Kahler’s

conviction and sentence. After a brief discussion of

Kansas’s transition from the M’Naghten rule to the

mens rea approach, the court rebuffed Mr. Kahler’s

due process arguments, declaring that “[t]he same

arguments . . . were considered and rejected by this

court in [Kansas v. Bethel, 66 P.3d 840 (Kan. 2003)].”

Pet. App. 36a. The court noted that Bethel “considered and rejected the reasoning of the Nevada Supreme Court in [Finger v. Nevada, 27 P.3d 66 (Nev.

2001) (en banc)],” which struck down a materially indistinguishable statute on due process grounds, “and

we adhere to our Bethel decision.” Id. The court saw

“no new reason to reconsider the arguments previously and thoughtfully rejected by this court.” Id. at 37a.

Nor was the court moved by the views of the three

Justices of this Court who dissented from the denial

of certiorari in Delling. Id. at 36a.

Justice Johnson dissented, distinguishing Bethel on

the grounds that it was not a death penalty case: “At

the very least, this court has the obligation to independently analyze whether the procedure of replacing

the insanity defense with the mens rea approach undermines the reliability of the jury’s determination to

impose the death penalty.” Pet. App. 60a.

REASONS FOR GRANTING THE PETITION

I. THE STATES ARE INTRACTABLY SPLIT

OVER WHETHER THE INSANITY DEFENSE

CONSTITUTIONALLY

REQUIRED.

A. Seven States Recognize A Constitutional

Right To The Insanity Defense.

The Kansas Supreme Court’s decision in this case

conflicts with the decisions of seven state high courts,

which have recognized that the Constitution requires

an insanity defense and invalidated several state attempts to restrict or abolish it.

1. The decision below expressly rejected the Nevada Supreme Court’s reasoning in Finger, 27 P.3d 66.

See Pet. App. 36a. Finger considered the constitutionality of a Nevada statute providing, like the Kansas law here, that the “fact of [a defendant’s] insanity . . . may be taken into consideration in determining” the existence of “any particular purpose, motive

or intent” that is an element of the crime, but not

otherwise. 27 P.3d at 71. Nevada had previously applied the M’Naghten rule, id. at 76, but under the

new regime, as in Kansas, “an accused cannot argue

that he or she should be acquitted on the basis of legal insanity. He or she can only argue that the State

has not proven intent beyond a reasonable doubt.”

Id. at 79.

The Nevada court invalidated the statute. After

tracing in detail the development of the insanity defense, id. at 71–75, and explaining the importance of

mens rea to the historical conception of crime, id. at

80, the court held that “legal insanity is a wellestablished and fundamental principle of the law of

the United States. It is therefore protected by the

Due Process Clauses of both the United States and

Nevada Constitutions. The Legislature may not abolish insanity as a complete defense to a criminal offense.” Id. at 84. The fact that the Nevada law “specifically permit[ted] evidence of insanity to be considered in determining intent,” id. at 81, did not save it;

that scheme failed to account for the “element of

wrongfulness” that is inherent in most crimes, including murder. Id. at 84. Finger also squarely rejected

the reasoning of Utah, Montana, and Idaho cases upholding similar statutes (discussed below). Id. at 81,

84.

As a result, Nevada has reverted to the

M’Naghten rule. Nev. Rev. Stat. § 194.010.

Like Nevada, California had previously applied

the M’Naghten test. California v. Skinner, 704 P.2d

752, 753 (Cal. 1985). After the court replaced that

test with a different standard, the state passed a referendum “designed . . . to reinstate the prongs of

the M’Naghten test.” Id. at 754. The new law, however, “use[d] the conjunctive ‘and’ instead of the disjunctive ‘or’ to connect the two prongs”; thus, “[r]ead

literally,” the statute “would strip the insanity defense from an accused who, by reason of mental disease, is incapable of knowing that the act he was doing was wrong.” Id. That construction, the court

said, “raises serious questions of constitutional dimension under both the due process and cruel and

unusual punishment provisions of the Constitution”

because “the insanity defense reflects a fundamental

legal principle common to the jurisprudence of this

country and to the common law of England.” Id. at

757, 758–59. Thus, as a matter of constitutional

avoidance, Skinner construed the statute to restore

the traditional M’Naghten test, id. at 758, which

treats as insane not only a defendant who does “not

know what he is doing,” id. at 759, but also a defend-

ant who “did not know he was doing what was

wrong,” id. at 753.

The Louisiana Supreme Court has similarly recognized that the “insanity defense, and the underlying

notion that an accused must understand the nature

of his acts in order to be criminally responsible (the

Mens rea concept), are deeply rooted in our legal tradition and philosophy.” Louisiana ex rel. Causey, 363

So. 2d 472, 474–75 (La. 1978). The court thus held

that “the due process-fundamental fairness concepts

of our state and federal constitutions would be violated . . . in adult prosecutions for crimes requiring intent, if an accused were denied the right to plead the

insanity defense,” and that the same principles required the availability of the insanity defense for juveniles “charged with a serious crime.” Id. That was

true even though there was “no statutory right to

plead not guilty by reason of insanity in a Louisiana

juvenile proceeding.” Id. at 473.

These opinions align with (and in the case of Nevada and Louisiana, rely on) a pair of decisions invalidating state attempts to abolish the insanity defense

outright. In Washington v. Strasburg, the Washington high court struck down a statute providing that it

was “no defense” that a defendant was “unable, by

reason of his insanity . . . to comprehend the nature

and quality of the act committed, or to understand

that it was wrong.” 110 P. 1020, 1021 (Wash. 1910).

“From the earliest period of the common law, no criminal responsibility could attach where the accused

was so utterly deprived of reason as to be incapable of

forming a guilty or criminal intent.” Id. at 1022. The

court thus found it “too plain for argument” that “prior to and at the time of the adoption of our Constitution” a defendant was entitled to an insanity defense.

Id. Abolishing that defense therefore violated Wash-

ington’s Due Process Clause, id. at 1025, which is

construed identically to the federal Clause, id. at

1023 (relying on principles found “in all the Constitution[s] of the Union, state and federal”); see also

Hardee v. Washington, 256 P.3d 339, 344 n.7 (Wash.

2011).

The Mississippi Supreme Court similarly struck

down a state statute providing that “the insanity of

the defendant . . . shall not be a defense.” Sinclair v.

Mississippi, 132 So. 581, 581–82 (Miss. 1931) (en

banc) (per curiam). This prohibition violated the

state Due Process Clause, id. at 582, which is “the

same” as the federal guarantee, see Walters v. Blackledge, 71 So. 2d 433, 444 (Miss. 1954). The majority

adopted the reasoning of the concurring opinions,

Sinclair, 132 So. at 582–91, which explained that “it

has been the long-settled conviction of the people

through every age” that it is “shocking and inhuman

to punish a person for an act when he does not have

the capacity to know the act or to judge of its consequences.” Id. at 584 (Ethridge, J., concurring). “So

closely has the idea of insanity as a defense to crime

been woven into the criminal jurisprudence of English speaking countries that it has become a part of

the fundamental laws thereof . . . .” Id. Mississippi

has since used the M’Naghten test. Stevens v. Mississippi, 806 So. 2d 1031, 1050–51 (Miss. 2001) (en

banc).

Finally, the high courts of two other states, while

not confronting direct attempts to abolish the insanity defense, have recognized that it is constitutionally

required. The Colorado Supreme Court held that

“[a] statute providing that insanity shall be no defense to a criminal charge would be unconstitutional”

because “[o]ne accused of crime is entitled to raise

and have a jury pass upon the question of whether he

was sane or insane when he committed the act with

which he is charged.” Ingles v. Colorado, 22 P.2d

1109, 1111 (Colo. 1933), superseded by statute on other grounds, People v. Hill, 934 P.2d 821, 825 (Colo.

1997). The court upheld a statute that “changed the

method of raising the question of insanity” only because the “substance of the defendant’s right to a jury

trial on the question of insanity has been preserved.”

Id. Similarly, the Minnesota high court noted that

“the presentation of evidence of mental illness is a

right of constitutional dimension,” but did not address the precise boundaries of that right because the

court was “satisfied that the M’Naughten rule provides a fair and just means of evaluating the actions

of a defendant who claims the defense of mental illness.” Minnesota v. Hoffman, 328 N.W.2d 709, 716

(Minn. 1982), superseded by statute on other grounds,

State v. Bouwman, 354 N.W.2d 1, 5 n.2 (Minn. 1984).

2. The decision below conflicts with all of these

cases. To be sure, only Nevada attempted precisely

what Kansas has done here. But as the court below

conceded, Kansas’s statute “abandons lack of ability

to know right from wrong as a defense,” Pet. App.

35a, and that is the crux of the insanity defense as it

developed in the common law centuries ago. With

that aspect eliminated, what remains—allowing evidence of mental impairment only to undermine the

state’s showing of intent, id.—adds nothing to the

state’s general burden to prove all of the elements of

the crime beyond a reasonable doubt. A defendant

may always offer relevant evidence in an effort to negate an element of the state’s case in chief. Thus,

Kansas’s law does what the high courts of California,

Louisiana, Washington, Mississippi, Colorado, and

Minnesota have condemned: It permits a criminal

conviction—here, of a death-penalty defendant—so

long as the defendant “know[s] what he is doing,”

even if he “is incapable of knowing that the act he

was doing was wrong” and shaping his conduct accordingly. Skinner, 704 P.2d at 754, 759; see also

Finger, 27 P.3d at 80; Strasburg, 110 P. at 1022. In

at least seven other states, that result would violate

due process, the prohibition against cruel and unusual punishments, or both.

B. Five States Have Held That Due Process

Does Not Mandate Any Form of Insanity

Defense.

Five states have active statutes abolishing the

longstanding M’Naghten rule or one of its variants:

Alaska, Idaho, Kansas, Montana, and Utah. 3 In

Kansas, Utah, Idaho, and Montana, this prohibition

includes death penalty cases. These states’ courts

have upheld these statutes—typically by a narrow

vote over a vigorous dissent—against constitutional

challenges. See Kansas v. Bethel, 66 P.3d 840, 844–

52 (Kan. 2003); Utah v. Herrera, 895 P.2d 359, 364–

66 (Utah 1995); Idaho v. Searcy, 798 P.2d 914, 917–

19 (Idaho 1990); Montana v. Korell, 690 P.2d 992,

998–1002 (Mont. 1984); Lord v. Alaska, 262 P.3d 855,

861–62 (Alaska Ct. App. 2011). 4

Alaska Stat. §§ 12.47.010-020; Idaho Code § 18-207; Kan.

Stat. Ann. § 22-3220 (2009); Mont. Code Ann. §§ 46-14-102, 4614-311; Utah Code Ann. § 76-2-305.

“Alaska[] uses only the M’Naghten rule’s cognitive incapacity

prong,” Stephen M. LeBlanc, Cruelty to the Mentally Ill: An

Eighth Amendment Challenge to the Abolition of the Insanity

Defense, 56 Am. U. L. Rev. 1281, 1312 n.190 (2007), with the

“practical result” that “Alaska is functioning under the same

standard as Montana, Idaho, Utah, and Kansas,” Andrew P.

March, Insanity in Alaska, 98 Geo. L.J. 1481, 1509 (2010).

In Idaho, for example, a three-Justice majority concluded that “due process as expressed in the Constitutions of the United States and of Idaho does not

constitutionally mandate an insanity defense.”

Searcy, 798 P.2d at 919. This is so, the majority said,

because there is “a wide disparity in the positions

taken on this issue both by legislatures and courts in

the various states”; language from this Court’s majority opinions and dissents “suggests” that an insanity

defense is not constitutionally required; and “the only

court which has expressly ruled upon this issue,” the

Montana Supreme Court in Korell, “has upheld the

constitutionality of a state statute abolishing the insanity defense.” 5 Id. at 917–19. Two Justices dissented, explaining that the majority misread this

Court’s precedents and that “the insanity defense has

an independent existence of sufficient duration and

significance to entitle it to a place in our American

concept of ‘ordered liberty.’” Id. at 923–27 (McDevitt,

J., dissenting).

The other states’ decisions are similar—and have

provoked similar dissents. See Herrera, 895 P.2d at

364–66 (“we conclude that the current Utah insanity

defense does not violate federal due process” because

“it allows defendants to present evidence of mental

illness to specifically negate the required state of

mind”); id. at 371 (Stewart, J., dissenting) (insanity

defense is “one of the most fundamental principles of

Anglo–American criminal law”); id. at 390 (Durham,

J., dissenting) (“the constitution does not permit the

imposition of criminal punishment on persons who

5 In truth, the overwhelming majority of states retain the defense, including the right-or-wrong component; this Court has

expressly reserved this question, Clark, 548 U.S. at 752 n.20;

and the Idaho court simply overlooked the contrary state-court

decisions discussed above.

are not morally responsible, and therefore not legitimately blameworthy, for their actions”); Korell, 690

P.2d at 996–1002 (upholding Montana’s statute); id.

at 1006 (Sheehy, J., dissenting) (“Montana’s treatment of the insanity defense . . . deprives the insane

defendant of due process”). And the issues debated in

these cases are only heightened where the defendant

is charged with a crime that carries the death penalty. As the dissent below observed, “[o]ne might question whether a juror would be as likely to vote to kill

a defendant who did not know that his or her murderous act was wrong.” Pet. App. 60a.

C. Both Sides’ Positions Are Fully Elucidated And Stable.

Neither side of this developed split is likely to reconsider. Rather, courts on both sides have reaffirmed their existing positions, even after considering

the reasoning of the other side.

The states rejecting any due-process requirement

have repeatedly reaffirmed their holdings, typically

citing their previous rulings and taking this Court’s

silence on the issue as acceptance (notwithstanding

Clark’s reservation of the question). In so doing, they

have generally rejected the reasoning of the contrary

cases. E.g., Pet. App. 36a (“Bethel . . . considered and

rejected the reasoning of the Nevada Supreme Court

in Finger, and we adhere to our Bethel decision.”);

Idaho v. Delling, 267 P.3d 709, 713 (Idaho 2011) (rejecting Finger because it “differs from this Court’s

previous holdings on the subject”); Montana v. Cowan, 861 P.2d 884, 889 (Mont. 1993) (“We decline to

adopt the reasoning of the California Supreme Court

in Skinner.”).

Similarly, the states on the other side of the split

continue to hold that the Constitution requires an in-

sanity defense. E.g., Washington v. Ellison, 194

Wash. App. 1033 (2016) (following Strasburg); Minnesota v. Schroyer, No. A14-0855, 2015 WL 1880204,

at *2 (Minn. Ct. App. Apr. 27, 2015) (“Criminal defendants have a due process right to present a mental

illness defense”); California v. Ortega, No. C-044635,

2005 WL 1623911, at *3 (Cal. Ct. App. July 11, 2005)

(noting that Skinner’s holding was necessary “to

avoid a fatal constitutional infirmity”); O’Guinn v.

Nevada, 59 P.3d 488, 490 (Nev. 2002) (en banc) (per

curiam) (reaffirming Finger). Again, these courts

have confronted the reasoning of the contrary cases.

E.g., Finger, 27 P.3d at 81–83 (disagreeing with “Herrera, Searcy and Korell”).

II. THE DECISION BELOW IS INCORRECT.

The Kansas Supreme Court rejected Mr. Kahler’s

constitutional challenge because “the same arguments . . . were considered and rejected” in Bethel

and “a review of those arguments or of Bethel is not

warranted.” Pet. App. 36a–37a.

Bethel rejected a due process challenge to the mens

rea approach, reasoning that the “affirmative insanity defense” is “a creature of the 19th century” and not

sufficiently “ingrained in our legal system” to warrant due process protection. 66 P.3d at 851. The

court based its decision on the “historical practice” of

the insanity defense, as well as snippets of dicta or

separate opinions from mid-twentieth century decisions of this Court. Id. at 844–51. Bethel distinguished the Nevada Supreme Court’s contrary ruling

in Finger on the grounds that “malice is not a requisite element of murder” in Kansas. Id. at 849–50. Finally, Bethel also rejected an Eighth Amendment

challenge to the mens rea approach, holding that

Kansas’s statute does not violate the Eight Amendment because it “does not expressly or effectively

make mental disease a criminal offense.” Id. at 852.

None of those rationales withstands scrutiny.

A. The Centuries-Old Principle That Criminal Punishment Is Reserved For People

Who Can Distinguish Right From Wrong

Is Deeply Ingrained In Our Legal System.

The Due Process Clause protects those principles of

justice that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Patterson v. New York, 432 U.S. 197, 201–02

(1977); see also Montana v. Egelhoff, 518 U.S. 37, 43

(1996) (explaining that the “primary guide in determining whether the principle in question is fundamental is . . . historical practice”). Likewise, “the

Eighth Amendment’s ban on cruel and unusual punishment embraces . . . those modes or acts of punishment that had been considered cruel and unusual at

the time that the Bill of Rights was adopted,” as well

as “evolving standards of decency that mark the progress of a maturing society.” Ford, 477 U.S. at 405–

06.

The Kansas Supreme Court was wrong to conclude

that the insanity defense is not among these fundamental tenets of our law. On the contrary, the insanity defense generally, and the specific principle that

an individual who cannot distinguish right from

wrong is protected from criminal liability, have endured in the common law for centuries. This Court

has recognized the “humane” common-law principle

that a person “cannot be said . . . to have deliberately

intended to take life,” and is therefore not liable for

murder, “unless at the time he had sufficient mind to

comprehend the criminality or the right and wrong of

such an act.” Davis v. United States, 160 U.S. 469,

484–85 (1895) (emphasis added); see also Finger, 27

P.3d at 71 (“For hundreds of years, societies recognized that insane individuals are incapable of understanding when their conduct violates a legal or moral

standard, and they were therefore relieved of criminal liability for their actions.”). In Justice Frankfurter’s words, “[e]ver since our ancestral common law

emerged out of the darkness of its early barbaric

days, it has been a postulate of Western civilization

that the taking of life by the hand of an insane person

is not murder.” United States v. Baldi, 344 U.S. 561,

570 (1953) (Frankfurter, J., dissenting).

The practice of distinguishing insane people from

those capable of understanding the moral implications of their actions dates back to ancient times. As

far back as the sixth century B.C., Hebrew scholars

“distinguished between harmful acts traceable to

fault and those that occur without fault,” describing

the latter as acts committed by people—such as the

insane—who are “incapable of weighing the moral

implications of personal behavior, even when willful.”

Am. Bar. Ass’n, Criminal Justice Mental Health

Standards pt. 6, intro. n.8 (1989) (citing Anthony

Platt & Bernard L. Diamond, The Origins and Development of the “Wild Beast” Concept of Mental Illness

and Its Relation to Theories of Criminal Responsibility, 1 J. Hist. Behav. Sci. 355, 366 (1965)). The Greek

philosophers of the fifth century B.C. similarly “considered the distinction between a culpable and nonculpable act to be among the ‘unwritten laws of nature supported by the universal moral sense of mankind.’” Id. (citing B. Jones, The Law and Legal Theory of the Greeks 264 (1956)).

By the twelfth century, a general legal defense

based on criminal insanity had taken root within the

English common-law tradition, and by the sixteenth

century, insanity was a “well recognized defense.”

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

974, 1004–05 (1932); see also Searcy, 798 P.2d at 928

(McDevitt, J., dissenting). Around the sixteenth century, the insanity defense evolved to embrace the

question whether the defendant was capable of distinguishing good from evil and therefore morally culpable. 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, 1228, 1234–35 (1966). Thus, in 1618, the English jurist Michael Dalton wrote: “If one that is ‘non

compos mentis’ [mad], or an ideot, kill a man, this is

no felony; for they have not knowledge of good and

evill, nor can have a felonius intent, nor a will or

minde to doe harm . . . .” Id. at 1235 (citing Michael

Dalton, The Countrey Justice 244 (1630)).

By the eighteenth century, the “knowledge of good

and evil” test was “regularly used” in insanity cases.

Platt & Diamond, The Origins of the “Right and

Wrong” Test, supra, at 1235–36; Sayre, supra, at 1006

(explaining that “[t]he eighteenth century harks back

strongly to the old ethical basis of criminal responsibility,” which asks: “Could the defendant at the time

of the offense ‘distinguish good from evil’”?). Juries in

the eighteenth century were instructed to consider,

for example, whether a defendant pleading insanity

“was able to distinguish whether he was doing good

or evil,” could “discern the difference between good

and evil,” or “had enough intelligence to distinguish

between right and wrong.” Homer D. Crotty, History

of Insanity as a Defence to Crime in English Criminal

Law, 12 Calif. L. Rev. 105, 114–15 (1924). Blackstone

wrote that “lunatics . . . are incapable of committing

any crime, unless in such cases where they show a

consciousness of doing wrong.” 4 William Blackstone,

Commentaries, *25, *195–96.

Likewise, English

scholar Williams Hawkins wrote that “it is to be observed that those who are under a natural disability

of distinguishing between good and evil, as infants

under the age of discretion, ideots and lunaticks, are

not punishable by any criminal prosecution whatsoever.” Crotty, supra, at 113 (citing William Hawkins,

Pleas of the Crown, I, p.1 (1716)).

In the nineteenth century, the “knowledge of good

and evil” test developed into the modern “right and

wrong” approach adopted in M’Naughten’s Case. See

Sayre, supra, at 1006 (“[T]he eighteenth century

good-and-evil test passe[d] into the nineteenth century right-and-wrong test . . . .”). Indeed, “the phrases

‘good and evil’ and ‘right and wrong’ were used interchangeably and synonomously” during the early nineteenth century, both in England and in the United

States. Platt & Diamond, The Origins of the “Right

and Wrong” Test, supra, at 1237 & n.59 (describing a

California jury instruction from 1871: “A person

sometimes insane, who has lucid intervals, or is so far

sane as to distinguish good from evil, right from

wrong, may commit a crime and be legally held responsible.”). Both tests address the essential question

whether the defendant is morally blameworthy and

therefore criminally responsible. Thus, far from being a “creature of the 19th century,” Bethel, 66 P.3d

at 844–51, the “right and wrong” insanity defense

was ingrained centuries before.

These principles remain a bedrock part of our legal

system to this day. Today, “forty-six states, the federal government, and the District of Columbia employ

some form of an affirmative insanity defense for criminal defendants, signifying these jurisdictions’ view

that criminal responsibility should not attach to the

acts of insane persons.” Stephen M. LeBlanc, Cruelty

to the Mentally Ill: An Eighth Amendment Challenge

to the Abolition of the Insanity Defense, supra, at

1312–13. This overwhelming consensus reflects not

only historical practice but also good policy: None of

the four traditional penological justifications for punishing criminal conduct—retribution, deterrence, incapacitation, or rehabilitation, see Graham v. Florida, 560 U.S. 48, 71 (2010)—justify convicting people

who cannot distinguish right from wrong.

First, retribution is not served by punishing a person whose “mental state is so distorted by a mental

illness that his awareness of the crime and punishment has little or no relation to the understanding of

those concepts shared by the community as a whole.”

Panetti v. Quarterman, 551 U.S. 930, 959–60 (2007);

see also Ford, 477 U.S. at 409 (“For today, no less

than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped

of his fundamental right to life.”).

Second, there is no deterrence value in punishing

the insane because such punishment “provides no example to others.” Ford, 477 U.S. at 407; see Jones v.

United States, 463 U.S. 354, 373 n.4 (1983) (Brennan,

J., dissenting) (“The insanity defense has traditionally been viewed as premised on the notion that society

has no interest in punishing insanity acquittees, because they are neither blameworthy nor the appropriate objects of deterrence.”).

Third, although incarceration incapacitates a mentally ill person for the duration of his sentence, it

does not necessarily incapacitate him until he is no

longer a danger to society. He may remain unwell,

and potentially dangerous, after his sentence ends.

In contrast, the Constitution permits states to continue defendants acquitted on the basis of insanity to

mental institutions “until such time as he has regained his sanity or is no longer a danger to himself

or society.” Jones, 463 U.S. at 370.

Fourth, ordinary prison facilities are not equipped

to rehabilitate people suffering from severe mental

disorders. “[A]cross the nation, many prison mental

health services are woefully deficient, crippled by understaffing, insufficient facilities, and limited programs. All too often seriously ill prisoners receive little or no meaningful treatment. They are neglected,

accused of malingering, treated as disciplinary problems.” Human Rights Watch, Ill-equipped: U.S. Prisons and Offenders with Mental Illness 1–5 (2003),

https://goo.gl/wDAsmW. These problems often result

in a cycle of punishment that in turn exacerbates the

inmate’s mental illness, particularly where solitary

confinement is imposed—as it is for all capital defendants in Kansas. Kan. Dep’t of Corr., Purpose of

Administrative Segregation & Appropriate Placements, § 20-104(I)(B)(16); see, e.g., Wallace v. Baldwin, 895 F.3d 481, 484–85 (7th Cir. 2018) (recognizing the significant harm to an inmate who “has spent

eleven years in solitary confinement, suffers from serious mental illness, and has a history of attempting

to harm himself” and noting that this “is unfortunately common in American prisons”).

In short, under both the Eighth and Fourteenth

Amendments, and as a matter of both ancient historical practice and modern consensus, the affirmative

insanity defense—and especially the requirement

that the defendant know right from wrong—is fundamental to our law.

B. The Dicta And Separate Opinions On

Which Bethel Relied Do Not Resolve The

Question Expressly Reserved in Clark.

Bethel, like the Montana, Utah, and Idaho cases

discussed above, also relied heavily on dicta and separate opinions from mid-twentieth century decisions

of this Court discussing the insanity defense. See 66

P.3d at 844–51. The short answer is that Clark made

clear that none of those decisions resolved the question presented here: “We have never held that the

Constitution mandates an insanity defense, nor have

we held that the Constitution does not so require.”

Clark, 548 U.S. at 752 n.20.

The longer answer is that none of the decisions

Bethel cited even purported to resolve the question

presented here. Powell v. Texas held that it is not

cruel and unusual punishment to convict a chronic

alcoholic of public drunkenness even if the alcoholic’s

conduct is “in some sense, involuntary.” 392 U.S.

514, 535–36 (1968). The fact that Powell declined to

“defin[e]” a specific “insanity test in constitutional

terms,” id. at 536, does not mean states are free to do

away with the defense entirely. The fact that states

may constitutionally shift the burden of proving insanity to the defendant, Leland v. Oregon, 343 U.S.

790 (1952), is similarly immaterial. The defense remains fully available in that situation. Nor do the

concurrences or dissents in Foucha v. Louisiana, 504

U.S. 71 (1992), or Ake v. Oklahoma, 470 U.S. 68

(1985), shed any meaningful light on this question.

The Kansas court erred by resolving a fundamental

question of criminal liability based on the tea leaves

of these decisions addressing different issues.

C. The Right To An Insanity Defense Is

Distinct From The Statutory Mens Rea

Element Of The Offense.

Finally, Bethel suggested that “the Kansas Legislature has not abolished the insanity defense but rather redefined it.” 66 P.3d at 851. But an insanity

defense limited to the mens rea approach is no insanity defense at all. As the Kansas high court conceded

in a different case, Kansas’s approach means that

“insanity . . . disappears as a separate defense.” Jorrick, 4 P.3d at 618.

As already explained, the historical defense has always incorporated the requirement that the defendant be able to tell right from wrong in regard to his

conduct. But under Kansas’s approach—as illustrated in Bethel itself—“evidence that a schizophrenic defendant’s ‘mental state precluded him from understanding the difference between right and wrong or

from understanding the consequences of his actions . . . does not constitute a defense to the charged

crimes.’” Delling, 133 S. Ct. at 506 (Breyer, J., joined

by Ginsburg & Sotomayor, JJ., dissenting from denial

of certiorari) (alteration in original) (describing Bethel). Kansas’s mens rea approach thus allows “conviction of an individual who knew what he was doing,

but had no capacity to understand that it was wrong.”

Id. That approach is unconstitutional because it fails

to account for the “fundamental principle” of justice

“rooted in the traditions and conscience of our people”

that people who cannot tell good from evil, or right

from wrong, are not morally blameworthy and thus

not criminally responsible. Supra § II.A.

The fact that “in Kansas, malice is not a requisite

element of murder,” so “the only intent required is

the intent to kill a human being,” Bethel, 66 P.3d at

850, is irrelevant. As Justice Kennedy explained in

Clark, “[c]riminal responsibility involves an inquiry

into whether the defendant knew right from wrong,

not whether he had the mens rea elements of the offense.” 548 U.S. at 796 (Kennedy, J., dissenting).

“While there may be overlap between the two issues,

the existence or nonexistence of legal insanity bears

no necessary relationship to the existence or nonexistence of the required mental elements of the crime.”

Id. (citation omitted). And, as already explained,

even a great many insane defendants can form the

mens rea required to commit an intentional crime.

See Pohlot, 827 F.2d at 900. Kansas’s approach

therefore fails to preserve the core of the historic defense.

III. THIS IS A VITALLY IMPORTANT AND RECURRING ISSUE.

Whether the Constitution permits states to criminally punish (and potentially execute) individuals

who could not control their actions or understand

they were wrong has profound legal, moral, and practical implications for our criminal justice system.

The legitimacy of the criminal law rests in large

part on the sense that it reflects the moral judgment

of the community. In particular, the “heart of the

retribution rationale is that a criminal sentence must

be directly related to the personal culpability of the

criminal offender.” Tison v. Arizona, 481 U.S. 137,

149 (1987). In the case of severely mentally ill defendants, however, that crucial link is broken. These

defendants do not control or comprehend the nature

of their actions and therefore lack the “ability . . . of

the normal individual to choose between good and

evil” that is a “universal and persistent” predicate for

criminal punishment “in mature systems of law.”

Morissette, 342 U.S. at 250. To punish them nevertheless, in the same manner as any other defendant,

is “savage and inhuman.” 4 Blackstone, supra, at

*25. It also risks undermining the legitimacy of the

criminal justice system by entirely unmooring punishment from culpability.

What is more, a guilty verdict instead of an insanity verdict prevents the defendant from receiving necessary medical treatment: Whereas an insanity verdict results in confinement in a medical facility, prisons are notoriously ill-suited to provide adequate

mental-health treatment. Imprisonment of a severely mentally ill defendant thus fails to serve a rehabilitative purpose. Conversely, because a prison sentence is keyed to the offense rather than the offender’s mental condition, a guilty verdict might fail to

incapacitate someone even while he remains a danger

to others because of his untreated illness. See supra

§ II.A.

One study has found that the insanity defense is

raised in roughly one percent of all felony cases, and

that juries find about one quarter of those defendants

not responsible. Lisa A. Callahan et al., The Volume

and Characteristics of Insanity Defense Pleas: An

Eight-State Study, 19 Bull. Am. Acad. Psychiatry &

L. 331, 334 (1991). The abolition of the insanity defense in five states that are collectively home to

roughly 10 million people therefore impacts a large

number of defendants. Indeed, defendants in those

states have continued to challenge the constitutionality of their convictions on this basis. E.g., Idaho v.

Winn, 828 P.2d 879 (Idaho 1992); Idaho v. Card, 825

P.2d 1081 (Idaho 1991); Montana v. Meckler, 190 P.3d

1104 (Mont. 2008); Cowan, 861 P.2d 884; Kansas v.

White, 109 P.3d 1199 (Kan. 2005), superseded by

statute on other grounds, Kansas v. McLinn, 409 P.3d

1 (Kan. 2018); Kansas v. Davis, 85 P.3d 1164 (Kan.

2004); Utah v. Lafferty, 20 P.3d 342 (Utah 2001);

Utah v. Mace, 921 P.2d 1372 (Utah 1996).

IV. THIS CASE IS AN IDEAL VEHICLE.

This case is an ideal vehicle to decide the issue reserved in Clark. Mr. Kahler preserved his due process and Eighth Amendment arguments throughout

the case, and the Kansas Supreme Court squarely

addressed the question, Pet. App. 35a–36a, in addition to having already considered it thoroughly in

Bethel, 66 P.3d at 844–52. Further, the issue has

been fully ventilated in over a dozen state high court

opinions. Waiting will neither resolve the split nor

clarify the issues for this Court’s review. See supra

§ I.

Moreover, the facts of this case cleanly present the

issue for resolution. But for Kansas’s rule, the jury,

at the guilt phase, would have been able to act on the

facts—on which both experts largely agreed—that

Mr. Kahler suffered from a “[m]ajor [d]epressive

[d]isorder,” complicated by obsessive-compulsive and

narcissistic tendencies, that have impaired his ability

to reason or think. See Pet. App. 122a, 128a, 133a,

154a.

In particular, Dr. Peterson found a “personality

fragmentation called mixed personality disorder,” Id.

at 85a, and concluded that Mr. Kahler may have suffered from “stress induced short-term dissociation,”

which would explain his uncharacteristic inability to

recall his actions. Id. at 129a, 133a, 135a. “Persons

with major depression can become so impaired that

they actually are psychotic and impaired to the point

they do not have judgment,” like Mr. Kahler. Id. at

100a, 102a. And there was no evidence that Mr.

Kahler was faking these symptoms to avoid liability.

Id. at 81a–82a. Indeed, Dr. Peterson concluded from

his examination and the recorded LifeAlert call that

Mr. Kahler, “for at least that short period of time[,]

completely lost control.” Id. at 102a. That is, “his capacity to manage his own behavior had been severely

degraded so that he couldn’t refrain from doing what

he did.” Id. at 103a.

Neither doctor indicated that Mr. Kahler did not

realize that he was killing human beings, i.e., that he

could not form the mens rea required to commit homicide. See Pet. App. 155a. That would not be dispositive under the traditional insanity defense, however:

The largely undisputed expert testimony still would

have supported a strong argument that Mr. Kahler

lacked the ability, in that moment, to conform his

conduct to the law. Thus, in forty-six other states,

Mr. Kahler could have been found not responsible as

a result of his mental state. Not in Kansas.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

MERYL CARVER-ALLMOND

CLAYTON PERKINS

CAPITAL APPELLATE

DEFENDER

700 SW Jackson Street

Suite 903

(785) 291-3207

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

JEFFREY T. GREEN *

TOBIAS LOSS-EATON

JENNIFER C. RATHMELL

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jgreen@sidley.com

Counsel for Petitioner

September 28, 2018

* Counsel of Record

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.