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  • Michael Mullan

Recent Supreme Court's Kansas case finds no constitutional right to an insanity defense

On Monday, March 23 2019, the Supreme Court announced its decision and issued its opinion in the Kahler v. Kansas case that determines whether there is a constitutional right to an affirmative stand-alone insanity defense. Mr. Kahler was found guilty of a first-degree murder of his ex-wife, his ex-wife’s mother and his two teenage daughters and was sentenced to death. Kahler attempted to raise an insanity defense at trial, which argued that he did not know what he was doing was wrong and so he should be excused for his otherwise criminal behavior. However, Kahler was precluded from doing so based on a Kansas statute that effectively abolished the insanity defense, and only permitted the introduction of mental illness evidence at a criminal trial where it helped establish that the defendant did not have the requisite intent to murder. The Supreme Court found that there is no Due Process right, under the 14th Amendment, to a particular formulation of an insanity defense.

The Supreme Court found that Kansas’ allowance of admitting mental illness evidence insofar as it negated the mens rea or intent of a crime was a sufficient equivalent to the affirmative insanity defense that is traditionally based on the defendant’s inability, due to his mental illness, to understand what he is doing, or to understand what he is doing is wrong. In doing so, the Supreme Court redefines what an affirmative defense is. There is an inherent difference between the mens rea approach, which is not a defense but rather a failure of the state to prove an essential mens rea element was lacking (such as the mens rea of intent for murder), and the affirmative insanity defense, which requires the defendant to admit the actus reus occurred and in some instances even admit the mens rea was present but nonetheless asserts an excuse to this otherwise criminal behavior. The mens rea alternative to the insanity defense denies the prima facie case of the criminal offense due to the failure to satisfy the mental state required by the definition of the offense. In its’ opinion, the Supreme Court calls the mens rea approach an “intent-based insanity defense,” attempting to redefine it as an affirmative defense.

Furthermore, if a defendant fails to satisfy the mens rea, or state of mind, element of the offense, s/he will be outright acquitted. As such, the mens rea approach can be more dangerous to society, because such a defendant will be released regardless of their illness and regardless of their potential danger to society. Even defendants who do actually make out the mens rea requirement of a crime and is subsequently found guilty, s/he will be released back into society after a definitive amount of time served in prison – again regardless of their perceived dangerousness.

The Supreme Court was satisfied that the mens rea approach, combined with Kansas’ courts being able to consider a defendant’s mental illness and its impact on his/her blameworthiness, was a sufficient substitute to an affirmative insanity defense.

Another criticism of the Supreme Court’s opinion is its’ statement that it is “not for the courts to insist on any single criterion moving forward.” The Supreme Court is effectively taking away the possibility of future Supreme Courts to revisit the issue and declare one particular test as fundamental and so requiring due process protection.

Finally, the Supreme Court fails to address the 8th Amendment cruel and unusual punishment claim, on the basis that this was not raised in or considered by the lower courts.

To conclude, it appears that the Supreme Court has erroneously redefined what constitutes an insanity defense. As a result of this narrowing of when mental illness evidence can be introduced at trial, there is more than likely going to be an increase in the number of convictions, and consequent prison sentences, for those with mental illnesses who are not blameworthy.


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