Kahler v. Kansas Preview
by Jason Frey
Only eight months after the Eighth Amendment was fully incorporated in the United States, the Supreme Court is once again hearing a “cruel and unusual” question, this time concerning legal insanity. On October 7th, the justices will consider in Kahler v. Kansas whether the insanity defense can be effectively abolished by the states. There are two types of insanity defenses: 1) where the defendant is blameless if they didn’t satisfy the mens rea element of a crime, meaning they acted unintentionally or didn’t know they were violating the law, and 2) where the defendant is blameless if they didn’t understand the difference between right and wrong during their crime. The second type traces back to the 18th century M’Naghten Rule from British common law. Only four states—Kansas, Montana, Idaho, and Utah—have eradicated this type.
“Insanity” is a legal term that means the defendant, at the time of the crime, was incapacitated by “mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot manage his/her own affairs, or is subject to uncontrollable impulsive behavior” (USLegal). Take care to remember that insanity is not a medical term here, but one that informs legal proceedings. And note that to be considered “insane” in criminal proceedings, the defendant must have been incapacitated at the time of the crime—not before or after.
Kansas used to recognize the M’Naghten Rule, which held that insanity can be determined either by lack of mens rea or by lack of understanding right vs. wrong. However, in 1996 Kansas substituted the insanity defense with a new law, one that only allowed mental illness to be considered when the jury determines the defendant’s intent (Kan. Stat. Ann. §22-3220 , recodified as §21-5209). The insanity defense was no longer its own entity. This transition poses a significant issue because it means that Kansas, along with three other states, is denying a fundamental right of defense to already stigmatized defendants.
James Kahler, the petitioner in this case, had a troubled history with his family and surrounding community. Diagnosed with mixed obsessive-compulsive, narcissistic, and histrionic personality disorders, Kahler was obsessed with attention from others and being viewed as having an outwardly perfect life. In 2008, after the Kahler family moved from Texas to Missouri, Karen Kahler began having an affair with a woman. James was unable to handle being on the fringes of his wife’s romantic universe, and his behavior became more extreme until he lost his job and monitored his wife obsessively. On Thanksgiving, Kahler drove his son to stay with his wife and “snapped,” killing Karen, his daughters, and his grandmother-in-law. A recording of the incident captured Kahler saying “I am going to kill her” in a disbelieving tone, which the defense claimed was a dissociative break from reality. During trial, psychiatrists concluded with varying degrees of confidence that the defendant was unable to “refrain from doing what he did” due to his severe depression.
After being convicted of the capital murder of his family members, Kahler petitioned the Supreme Court to hear his case. He claims that Kansas violated his 14th and Eighth Amendment rights. First, Kahler argues that the insanity defense is deeply ingrained in our culture and common law. He must show “clear and convincing evidence” of this history to successfully argue that the insanity defense is a Due Process Clause right (Cruzan v. Missouri, 1990). Next, he disagrees with Kansas that abolishing the insanity defense “does not expressly or effectively make mental disease a criminal offense” because he believes the right to an insanity defense is different from the mens rea element of a crime. Finally, he claims that denying a defendant’s right to plead insanity may lead to his incarceration, which, for a mentally ill convict, does not serve the primary purposes of incarceration: “retribution, deterrence, incapacitation, or rehabilitation” (Kahler 22). Obliterating the insanity defense is thus cruel and unusual punishment under the Eighth Amendment.
Kansas’s main response is that it didn’t abolish the insanity defense, but merely channeled it into a different category. Its relies on Clark v. Arizona, where the Supreme Court said that Arizona could decline to hear evidence about insanity when determining a defendant’s intent, but could allow evidence for a separate insanity defense. Kansas is extending this ruling to say that it should be allowed to remove an “understanding good vs. evil” defense. Its secondary claim is that there isn’t enough historical evidence for Kahler to make a clear and convincing claim that the insanity defense is crucial to the due process of law.
The Court decided to hear the case, and as is custom, Kahler submitted a brief explaining his position. He makes it clear that “the Constitution requires states to provide some mechanism to excuse criminal defendants whose mental states render them blameless.” His point is reinforced by the common law, deeply held societal values, and historical practices that underpin the Constitution and have long included the insanity defense. As for the purposes of incarceration—i.e. retribution, deterrence, incapacitation, and rehabilitation—convicting the insane doesn’t serve any of them; retribution fails if the defendant doesn’t understand the wrong, deterrence isn’t effective for the mentally ill if they have no control of their actions, incapacitation may only work for the duration of their sentence, and rehabilitation is futile thanks to the meager mental health resources in modern prisons.
To understand the full scope of Kahler’s brief, it’s necessary to examine the historical context. Kahler references both the Old Testament and texts on the history of the insanity defense to show that ancient Jewish traditions and Greek philosophy distinguished between those who possessed “knowledge of good and evil” and those who didn’t. Ancient Christian and Islam teachings also held that “lunatics” would not be considered responsible for not understanding the consequences of their actions. The paper “Insanity Under Various Criminal Law Jurisdictions of the Globe: A Comprehensive Critical Study of the Relevancy of the Law,” written by Vaibhav Choudry and A. Velan, provides an exhaustive list of historical insanity practices that support Kahler’s conclusion. Between the 13th and 18th centuries in England, the Wild Beast Test acquitted anyone by reason of insanity who “is totally deprived of his understanding … and doth not know what he is doing.” This practice was extended to the Good and Evil Test in the 19th century, followed by the Insane Delusion Test, both of which acquitted an insane defendant for not knowing the difference between “good and evil” or for acting under a delusion. Next, the Test of Capacity to Distinguish Between Right and Wrong was included under the M’Naghten Test, which is still used today. The paper gives an example that “black rage will satisfy the right-wrong prong of M’Naghten if the actor acts in an altered state of consciousness”; it essentially means that under M’Naghten Test, Kahler would have been blameless. Clearly, all recognized legal insanity tests include understanding the morality of one’s actions.
Kansas’s brief takes this argument in the opposite direction. The state claims that the insanity defense has historically had a mens rea approach, although my previous paragraph contradicts that argument. In referencing a 1603 British common law case, Kansas inaccurately conclude that it refers to mens rea, when there is no explicit mention of knowledge of the act, only of the “mind [being] guilty.” Kansas even claims that the M’Naghten Test, which is a form of the “right and wrong” rule, is not deeply entrenched in history and stems from a scienter approach. They also try to undermine Kahler’s Eighth Amendment argument, reasoning that he has no right to introduce it in the Supreme Court if he didn’t use it in the Kansas Supreme Court. Additionally, one of Kansas’ fundamental arguments is that since Kahler would not have been able to prove his insanity in trial, it is harmless to remove the insanity defense as a separate channel. I most strongly disagree with this part of the brief because it repudiates the Supreme Court’s doctrine of fungibility—the idea that the actual facts of the case don’t matter, only the legal principle involved. As such, it shouldn’t matter that Kahler may not have been legally insane, only that the law would have prevented him from making that claim.
Kansas makes two more assertions. First, that the Supreme Court does not have the power to micromanage what defenses a state accepts, and second, that Kahler’s Eighth Amendment argument is invalid. The state cites Powell v. Texas, which held that since alcoholism does not cause uncontrollable impulses, incarceration for public intoxication is not cruel and unusual. This 1968 opinion also states that “the doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment … This process of adjustment has always been thought to be the province of the States.” Here Kansas’ claim is supported that the federal government gives states leeway on choosing their defense schemes, as well as that the Eighth Amendment doesn’t prohibit incarceration if the defendant had knowledge of his crime. Clark reinforces this concept because the opinion allows states to “determine whether, and to what extent, mental illness should excuse criminal behavior.” And it’s true that states have the reserved power of conducting their internal legal affairs; but at what point must the Supreme Court step in? Should the court of last resort have no say over such a fundamental defense? Would this argument be the same if self-defense had been effectively abolished? As for Kansas’s attempt to invalidate the Eighth Amendment claim, Robinson v. California actually prohibited incarceration due to narcotic addiction because it was likened to “making it a criminal offense ‘to be mentally ill, or a leper, or to be afflicted with a venereal disease,’” which is an extraordinarily similar case to Kahler.
Finally, a not insignificant part of Kansas’ brief addresses the fact that incarceration of mentally ill defendants may deter others from committing crimes. The brief contends that if the insanity defense were to be ruled a fundamental right, it could provoke others to commit crimes and abuse the defense, believing that they would be acquitted. This claim belies the public misconception around the use and frequency of the insanity defense. The majority of Americans mistakenly believe that this defense is often misused and susceptible to exploitation. However, it is strictly controlled. “The Volume and Characteristics of Insanity Defense Pleas: An Eight-State Study” examines the frequency and success of the insanity defense. Based on 49 representative counties over eight states, the study concluded that out of 967,209 felony indictments, 0.93% of them involved an insanity plea. Of that 0.93%, only 26.27% of the pleas were successful. That means that out of all felony cases, approx. 0.25% of them end in an NGRI Acquittal. It is thus completely unreasonable to assume that the insanity defense is subject to exploitation, and much less reasonable to consider that it would be a deterrent for potentially mentally ill defendants.
Without even hearing the oral arguments yet, I believe that the court should rule for Kahler. Why should someone be held criminally responsible for actions they weren’t morally guilty of committing? If one cannot control their actions, what is the point of punishment? In addition, why should the defendant be sentenced to incarceration in a system that is notorious for aggravating serious mental illness and has a history of solitary confinement? I have to agree with the petitioner that none of the goals of incarceration in America are served by such a conviction. There is a reason that Kahler was brought to the Supreme Court, and it wasn’t so that the justices would squander the opportunity to legally support the M’Naghten Rule in the name of forever ambiguous “states’ rights.” The amicus brief from the American Psychiatric Association et al. says it best that “from the founding of the United States until today, virtually all American jurisdictions have recognized that, when serious mental illness prevents a defendant from grasping that his conduct was wrong, the defendant should not be held criminally responsible.”