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  • Michael Mullan

The Supreme Ct. will finally decide whether there is a constitutional right to the insanity defense

Updated: Mar 19, 2019

Today (March 18 2019) , the U.S.

Supreme Court has finally decided to confront the issue of whether the U.S. federal Constitution requires an insanity defense. Kansas defendant Kraig Kahler is challenging his conviction where he was barred from advancing an insanity defense. 

Kahler was found guilty about of murder and sentenced to death following the killing of his two daughters, his wife and her grandmother. Kahler’s lawyers wanted to argue that the defendant’s severe depression resulted in an “extreme emotional disturbance, dissociating him from reality” as per his petition to the Supreme Court. According to defense counsel, Kahler was unable to control his impulses and so could not conform his behavior to the law, which is one legal test for insanity.  Kahler lawyers are arguing that the 14th and 8th Amendments require all U.S. states to have an insanity defense. Kahler is arguing that the insanity defense has become a fundamental part of the U.S. criminal justice system. When deciding the case, the Supreme Court will look at the historical status and current  status of the insanity defense across all of the states. Currently five U.S. do not have an insanity defense. The Court will assess whether this is an indication of a trend going against having the insanity defense, or assess whether the five states are an exception to the rule of allowing an insanity defense in the rest of the States.  In the states that don’t allow the insanity defense, mental illness can still be introduced as evidence in regards to mens rea requirement of the crime. The mens rea is the mental element of the crime, for example the mens rea of murder is intention. However, it has been found by empirical studies that rarely will a mental illness negate the mens rea. As such, this may be one of the reasons why persons with mental illness are disproportionately represented in U.S. prisons. Despite the belief of the public, the insanity defense is rarely used. In fact it is put forward as a defense in less than 1% of felony cases.  The rationale for the insanity defense is that persons with severe mental illness at the time of the crime are not as blameworthy or culpable as offenders who don’t have a mental illness. Furthermore persons with severe mental illness are not as deterred by punishment as their relatively healthy counterparts. They also have been shown to be less likely to be rehabilitated by prison. Instead the insanity defense diverts persons with mental illness away from prisons into psychiatric hospitals where they receive treatment for their mental illness, while also being incapacitated and do not pose a danger to society while institutionalized.  Again contrary to public belief, persons found to be insane do not get a get-out-of-jail-free-card and released quickly after the trial. In fact, insanity acquittees have been found to spend more time incapacitated compared to prison time of ordinary offenders. The states that have abolished the insanity defense have eliminated it on the fear that the insane were getting away with their crimes without due punishment.  Other objections to the insanity defendants come from another angle- critics have objected to the insanity defense as it supposedly discriminates against persons with mental illnesses by singling them out for special treatment and further stigmatizes them by perpetuating the myth that the insane are inherently dangerous. Such critics believe the capacity and dignity of the mentally ill is undermined by the insanity defense, as it does not let them make mistakes and be held accountable to the same extent to everyone else.  However, the insanity defense is a crucial part of the criminal justice system, as it acknowledges the lower levels of culpability that attaches to the acts of the mentally ill. The Supreme Court had the opportunity to address the issue of the constitutional status of the insanity defense in 2007 when it rejected cert to hear the Delling case. The Supreme Court will decide the Kahler case next term and will clarify the uncertainty that surrounds the insanity defense nationwide. 

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