By: David Russell
After hearing oral arguments on October 7th, 2019 the Supreme Court released its opinion in Kahler v. Kansas on March 23, 2020. The case asked whether a state legislature may eliminate the insanity defense without violating the Eighth and Fourteenth Amendments. In an opinion written by Justice Kagan and joined by Justices Roberts, Kavanaugh, Gorsuch, Alito, and Thomas, the Supreme Court held that eliminating the insanity defense does not violate the Constitution, even though the opinion may try to argue it did no such thing.
In 2009, James Kahler, the petitioner in this case, was charged of four counts of first degree murder. The charges included the murder of his wife, Karen, who had recently divorced him, Karen’s grandmother, and his two teenage daughters, Emily and Lauren. During the trial, Kahler’s defense included testimony from an expert who testified that Kahler was so severely depressed that he could not help himself. On the other side, the prosecution presented an expert who testified that Kahler had the requisite intent when he pulled the trigger. At the end of the trial, the jury convicted Kahler and sentenced him to death.
The petitioner claims that Kahler was deprived of a fundamental constitutional right and criminal law strategy because he was not able to present all defenses. Under Kansas criminal law, a defendant is not able to present what has historically been called the “insanity defense.” Instead, the Kansas statute only allows evidence disproving mens rea. In their brief, the petitioner emphasizes that the criminal justice system is based on free will and independent action. The insanity defense questions whether a defendant who suffers from a severe mental illness could form the requisite intent while committing the charged crime.
Criminal law is grounded in the concept of blameworthiness, and considerations of mental health mitigating guilt were first incorporated into common law in 1843 with the M’Naghten test. Since then, the key factor for determining criminal insanity is whether, due to their mental disease or defect, defendants are unable either to appreciate the wrongfulness of their acts or to comprehend the consequences of their actions. During the neoconservative era of the 1980s, the federal criminal justice system emphasized community safety at the expense of the mentally ill. Notably, John Hinckley attempted to assassinate then President Ronald Reagan but was acquitted at trial due to the delusional reality he genuinely believed he was living in. Consequently, Congress passed the Insanity Defense Reform Act of 1984, requiring that a defendant suffer from a severe mental illness to qualify for the insanity defense. Subsequently, four states, Idaho, Kansas, Montana, and Utah have eliminated the insanity defense.
In the Kahler opinion, the Supreme Court reaffirmed states’ rights upholding Kansas’ façade of an insanity defense. The Court relied on the high standard necessary for a constitutional right to be violated by due process. In reaching her decision, Justice Kagan highlighted the history of decisions leaving states to decide when a mentally ill defendant can be held liable for alleged crimes.
However, Justice Kagan missed the key issue: Kansas no longer allows an affirmative insanity defense. Instead, Kansas has implemented a defense that can either attempt to disprove intent or present mental illness as a mitigating factor during sentencing. Disproving an element of a crime is nowhere near as powerful as raising an affirmative defense such as self-defense. In reality, disproving an element is the standard way of defending a client. The Kahler decision eliminates the protections that were in place for mentally ill defendants that date back to the mid-nineteenth century. Furthermore, a successful affirmative defense results in acquittal. The mitigating factors presented at sentencing are inconsequential in determining the key issue: guilt.
In his dissent, Justice Breyer, joined by Justices Ginsburg and Sotomayor, agree: “Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to a mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.” Breyer argues that Kahler did meet the high bar necessary for a due process violation. Breyer correctly argues that the seven hundred years of Anglo-American legal history combined with the basic principles inherent in the fundamentals of criminal law itself, were violated by Kansas’ insanity defense law.
As a result of the Kahler decision, the Supreme Court held that states are free to create their own insanity defense. States are now free to create a fake defense that is not an affirmative defense, a defense that eliminates protections that are fundamentally rooted in criminal law.
 Kahler v. Kansas, No. 18-6135, slip op. (Mar. 23, 2020).
 K3A 22-3220 (statute reads “It is a defense to a prosecution under any statute that a 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.”).
 See Michele Meitl, Not Guilty by Reason of Insanity: A Review of the Literature, 51 No. 4 Crim. L. Bull. 1, 2 (2015) (recognizing free will as mens rea and action as actus reus).
 See id. (providing the insanity defense allows admission of a crime but questions blameworthiness and responsibility).
 See M’Naghten’s Case, 8 Eng. Rep. 718, 722 (1843)
 See Insanity Defense Reform Act (IDRA) of 1984, Pub. L. No. 98-473, Title II, Oct. 12, 1984, 98 Stat. 1976, 2057; 18 U.S.C. §17 (2018).
 See Michele Meitl, Not Guilty by Reason of Insanity: A Review of the Literature, 51 No. 4 Crim. L. Bull. 1, 2 (2015).
 Natalie Jacewicz, With No Insanity Defense, Seriously Ill People End Up In Prison, NPR (Aug. 5, 2016), https://www.npr.org/sections/health-shots/2016/08/05/487909967/with-no-insanity-defense-seriously-ill-people-end-up-in-prison.
 Kahler v. Kansas, No. 18-6135, slip op. at 24 (Mar. 23, 2020).
 Leland v. Oregon, 343 U.S. 790, 798 (1952) (stating a state’s rule is unconstitutional if it affronts fundamental principles of justice).
 Kahler v. Kansas, No. 18-6135, slip op. at 9 (Mar. 23, 2020) (quoting Clark v. Arizona, 548 U.S. 735, 743 (2006).
 Kahler v. Kansas, No. 18-6135, slip op. at 1 (Mar. 23, 2020) (Breyer, J., dissenting).