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The Rational Approach To The Insanity Defense

The U.S. Supreme Court recently announced it would take up a case that hinges on a perhaps deceptively simple question: Does the Constitution require states to allow an insanity defense?

The case in question, Kahler v. Kansas, illuminates what can happen when a state does not make such a defense available. James Kraig Kahler was convicted of killing his wife, their two daughters and his wife’s grandmother and received the death penalty in consequence. Kahler’s attorneys argued, based on examinations by forensic psychiatrists, that he committed the murders under depression so severe that he dissociated from reality and thus could not control his actions.

Kansas, along with four other states, does not offer a separate insanity defense. Instead, in Kansas a defendant’s mental health only matters inasmuch as he or she had the ability to commit the crime intentionally. Under Kansas law, it did not matter whether Kahler could control his actions or not, as long as he knowingly killed a human being.

Kahler’s attorneys have argued that the absence of an insanity defense violates the Eighth Amendment’s ban on cruel and unusual punishment, as well as the 14th Amendment’s guarantee of due process. Under Kansas’ law, they point out, Kahler is legally responsible for acts for which he cannot be morally responsible, given his mental state at the time he committed them.

Kahler’s case forms a recent part of a much longer national conversation on mental illness and violence. To contrast Kansas’ law with the more traditional approach in the United States, consider the case of John Hinckley Jr., who attempted to assassinate then-President Ronald Reagan in 1981. Hinckley shot Reagan and three others in what he stated was an attempt to impress actress Jodie Foster. A jury found Hinckley not guilty by reason of insanity; he was subsequently confined to St. Elizabeths Hospital in Washington, D.C.

The Hinckley verdict led several states and Congress to revise laws surrounding the insanity defense. In some cases, the burden of proof shifted to the defendant; some states created a separate verdict of “guilty but mentally ill,” which combined mandatory psychiatric treatment with a criminal sentence. Some states limited the use of expert witnesses, and a few abolished the insanity defense entirely.

These changes, like the legislation in Kansas, were essentially a response to a widespread sense, mostly but not exclusively among laypeople, that a defendant acquitted by reason of insanity is somehow getting away with something. That is not true. Generally, as with Hinckley, defendants who are acquitted this way are remanded to a psychiatric facility. The facility holds and treats these individuals until medical professionals determine that they no longer pose a threat to anyone. Hinckley spent virtually his entire adult life confined, although he eventually earned some short-term release privileges and finally was allowed to live with his mother.

Did he get away with something? Only if you believe he merely pretended to be unable to control his delusional thinking and his behavior on the day he ambushed the presidential party in Washington, D.C.

Otherwise, what is the point – apart from mere vengeance – of punishing someone once a jury has found, after hearing expert testimony, that the person was not responsible for his decisions or actions? What is the point of sending someone like that to a prison, where treatment facilities are extremely limited and the physical risks to the inmate are high, rather than to an institution specifically designed to deal with someone in that condition? What does such an outcome accomplish?

The insanity defense traces its roots back to ancient times. It has been a feature of English jurisprudence since at least the early part of the Age of Enlightenment. In 1724, Edward Arnold pleaded insanity after shooting Lord Thomas Onslow, one of the earliest recorded trials in which insanity played a central role. (Arnold was found guilty, though his capital sentence was commuted to life imprisonment when Onslow, who survived the shooting, interceded.) Juries in the 18th century were routinely instructed to consider whether a defendant had the capacity to distinguish right from wrong. The United States’ founders thus were certainly aware of the principles behind the insanity defense. They doubtless also would have been aware of the implications of a constitutional ban on cruel and unusual punishment for individuals who could not have prevented themselves from doing wrong.

So it will be extremely interesting to see how a Supreme Court with a solid conservative majority rules in this case. I have to say that the prospects for Kansas’ law do not look good. The court’s minority liberal block is likely to take a dim view, but I suspect so will some – though not necessarily all – of the conservative justices.

In particular, this case may provide a window into how the two newest justices, Neil Gorsuch and Brett Kavanaugh, apply their conservative principles to a question that does not neatly break down into conservative and liberal interpretations. Assuming Chief Justice John Roberts sides with the liberals, as I suspect he will – unless the court avoids a definitive ruling on the core issue altogether – the Kansas law will likely fail regardless of Gorsuch and Kavanaugh’s approach. But I would rather see it fail with a convincing majority, in which most or all of the conservatives also recognize the law’s unconstitutional cruelty.

We know a lot more about the human mind today than the Constitution’s drafters did in the 18th century. This knowledge may help us to better identify when an insanity defense is applicable and when it is not. But that is not the core question presented in this case. Kansas denies that an insanity defense exists at all as an absolute bar to criminal punishment for someone who could not choose whether to commit or refrain from committing a crime. The founders, even with their imperfect knowledge, definitively answered that question. I hope that both sides of the Supreme Court divide will respect the way they answered it.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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