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By Holly Black

Since its first use in 1843, the insanity defense has been an inherent part of Anglo-Saxon, and later American, courts. Sensationalized in various movies and television shows, from Law & Order[1] to How to Get Away With Murder[2], the insanity defense has almost become a part of American culture. If the insanity defense is such a large enough part of American culture, should it be considered a fundamental right under the Fourteenth Amendment? And if so, does denying someone’s right to an insanity defense and then convicting them anyway lead to cruel and unusual punishment, in violation of the Eighth Amendment? The Supreme Court is poised to answer each of these questions in Kahler v. Kansas.

In November of 2008, James Kahler was living the perfect life with a loving wife, three children, and a great job as director of the Public Utilities Department in Weatherford, Texas.[3] However, after some major life changes and a divorce, his mental illness became worse, and he shot and killed four members of his family.[4] At trial, Kahler argued that he was clinically depressed and that “his capacity to manage his own behavior had been severely degraded so that he couldn’t refrain from doing what he did.”[5] Kahler even presented a forensic psychiatrist to support the argument.[6] However, under Kansas state law, “mental disease or defect is not otherwise a defense,” and Kahler could not argue an insanity defense.[7] He was later convicted of four counts of first degree murder.[8]

After several years of appeals, Kahler’s case finally made it to the United States Supreme Court. On October 7, 2019 the Court’s October term began with Kahler v. Kansas.[9] While the Court has heard oral arguments on the case[10], a decision has not been made.

The original insanity defense, known as the M’Naghten rule, was adopted in England in 1843.[11] The rule holds that a defendant is not criminally responsible if he “was laboring 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 not know he was doing what was wrong.”[12] Today, twenty seven states still use the M’Naghten rule.[13] Six states have even adopted a broader version of therule, known as the “Substantial Impairment” standard.[14] Ten other states have adopted a modified version of it[15], and New Hampshire, with the most lenient standard, only requires the defendant’s offense to be “the product of” his mental disease.[16] While a majority of states continue to use some form of an insanity defense, six states have completely abolished it.[17]

Since 1995, Kansas has been among the six states that have abolished the insanity defense. Kansas, however, argues that it has not abolished the insanity defense, but rather has modified it, and under the mens rea approach, the jury can still weight mental illness as a factor in the defendant’s mens rea.[18] This, however, is the only way Kansas allows mental illness to factor into a defense. This means that if a defendant’s mental illness caused him to commit a crime, but he was still able to premeditate and deliberate while committing the crime, then the jury could still find him guilty of first-degree murder, despite his uncontrollable mental illness.

Kahler’s argument rests on the idea that the U.S. Constitution requires an insanity defense under the Fourteenth and Eighth Amendments. Kahler argues that the insanity defense is recognized as a fundamental right of due process by a majority of the states, so the Court must intervene to protect the right for defendants in Kansas and other similarly situated states.[19]  Kansas, however, argues that despite years of the insanity defense in popular culture, it has yet to be declared a fundamental due process right.[20]

Kahler also argues that Kansas’ existing mens rea approach violates the Eighth Amendment because it only accounts for intent and disregards the defendant’s moral capability (or lack thereof).[21] Additionally, Kahler notes that the four accepted penological justifications are not served by convicting and punishing the insane.[22] Therefore, convicting mentally ill defendants does not rehabilitate them, but rather, exacerbates their mental illness.[23] As a result, Kahler argues, the mens rea approach leads to cruel and unusual punishment in violation of the Eighth Amendment.[24]

The Constitutional questions raised by Kahler can only be answered by the Supreme Court. Despite earlier attempts for certiorari, the issue has never been before the court. In 2012, the issue was presented in Delling v. Idaho, however the Court refused to grant certiorari.[25] In response, Justices Breyer, Ginsburg, and Sotomayor dissented, noting that the mens rea approach can lead to unfair differences in punishment for mentally ill defendants.[26] The three Justices agreed the issue should be presented for certiorari, and recognized the need to change the mens rea approach.[27]

In its pending decision, the Court will need to answer longstanding constitutional questions about the insanity defense. Ultimately, it will decide if states like Kansas are allowed to effectively abolish the insanity defense. Justices Breyer, Ginsburg, and Sotomayor will likely concur and find Kansas’ statute is in violation of the Constitution. However, it remains to be seen if two more Justices will side with them on this important constitutional issue.

[1] Law & Order Special Victims Unit: Coerced (NCB television broadcast Oct. 28, 2003).

[2] How to Get Away With Murder: It was the Worst Day of My Life (ABC television broadcast Oct. 25, 2018).

[3] State v. Kahler, 410 P.3d 105, 113.

[4] Id. at 114.

[5] Id.

[6] Id.

[7] Id.; Kan. Stat. Ann. § 21-6619 (2020).

[8] Kahler, 410 P.3d at 114.

[9] Amy Howe, Argument Preview: Justices to Hear Challenge to Lack of Insanity Defense, SCOTUS Blog (Sept. 30, 2019, 4:18 PM),

[10] Kahler v. Kansas, SCOTUS Blog, (last visited Mar. 09, 2020).

[11] The M’Naghten Rule, Cornell L. Sch. Legal Info. Inst., (last visited Mar. 6, 2020).

[12] Daniel M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843).

[13] Paul H. Robinson & Tyler Scot Williams, Chapter 14: Insanity Defense 2­–3 (2017).

[14] These states are Oregon, Arkansas, Illinois, Kentucky, Maryland, and Vermont. The standard provides that “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. . . .” See id. at 3.

[15] These states are: Connecticut, Delaware, Hawaii, Maine, Massachusetts, Michigan, New York, Rhode Island, West Virginia, and Wyoming. The modified rule requires the defendant to lack the substantial capacity to appreciate the “wrongfulness” of his conduct rather than the “criminality” of his conduct. See id. at 4.

[16] Id. at 5.

[17]Id. at 2.

[18] Howe, supra note 9; see also Brief for Respondent at 18–19, Kahler v. Kansas (No. 18-6135), 2019 Lexis 2974, at *27–29 (argued May 31, 2019).

[19] Brief for Petitioner at 17, Kahler v. Kansas (No. 18-6135), 2019 Lexis 2056, at *33 (argued May 31, 2019).

[20] Brief for Respondent supra note 18, at 19–37.

[21] Id. at 15 (arguing “even severely mentally ill people can form the intent required to commit a crime . . . so long as a defendant kills another human being – even if he delusionally believes the devil told him to do it . . . he is guilty of murder.”).

[22] Id. at 14.

[23] See id. at 35.

[24] Id.

[25] See 568 U.S. 1038 (2012).

[26] Justice Breyer offers the example that “Idaho law would distinguish the following two cases. Case One: The defendant, due to insanity, believes that the victim is a wolf. He shoots and kills the victim. Case Two: The defendant, due to insanity, believes that a wolf, a supernatural figure, has ordered him to kill the victim. In Case One, the defendant does not know he has killed a human being, and his insanity negates a mental element necessary to commit the crime (offering a similar example of how mental illness may rebut mens rea). In Case Two, the defendant has intentionally killed a victim whom he knows is a human being; he possesses the necessary mens rea. In both cases the defendant is unable, due to insanity, to appreciate the true quality of his act, and therefore unable to perceive that it is wrong. But in Idaho, the defendant in Case One could defend the charge by arguing that he lacked the mens rea, whereas the defendant in Case Two would not be able to raise a defense based on his mental illness. Much the same outcome seems likely to occur in other States that have modified the insanity defense in similar ways. For example, in State v. Bethel, the prosecution and defense agreed that under a similar Kansas statute, 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.” See Delling, 568 U.S. at 1040 (Breyer, J., dissenting).

[27] See id.