Written by Eunice Bao
Edited by Manasi Chande
I. Introduction
Consider two similar prosecutions for murder. In one, the defendant shot and killed a person because they thought the victim was a dog. In the other, the defendant shot and killed a person because a dog ordered them to. It is clear that in both cases, the defendant suffers from severe mental illness.[1] Should the first, second, or both be punished? Under the traditional insanity defense, as detailed in the widely accepted M’Naghten Test established in the mid-19th century by the British jurisdiction, neither defendant deserves punishment because they are considered legally insane. To compensate, the government can instead replace their sentencing by committing them to a mental institution.[2] Under the rule established in the recent Supreme Court decision Kahler vs. Kansas (2020), however, only the first defendant has the right to an insanity defense. Even if one cannot tell right from wrong (i.e., believes a dog’s order is right), one is treated as a normal individual and can still be sentenced to death.
Across the board, lawmakers and psychiatrists differ on the parameters of insanity. In fact, four states, namely Kansas, Utah, Montana and Idaho, have discarded the traditional insanity defense. Compounded by the public’s fear of freeing dangerous criminals into society, successful insanity pleas are few and far between. Regardless of the disagreements around insanity’s role in criminal justice, America’s judiciary system follows a general baseline of criminal responsibility—to achieve just deserts, i.e., to “not allow punishment where it cannot impose blame.”[3] In Kahler v. Kansas, the Supreme Court fails to uphold this baseline. The Court refuses to consider the defendant’s moral capacity and in effect, affirms the death penalty for the alleged mentally ill defendant.
While the defendant in Kahler may not have been insane to the point of acquittal, the Court should have still addressed the dangerous implications of such a restrictive standard for insanity. In Kansas, one can be acquitted and can get treatment for mistaking a person for a dog. But if one can’t tell right from wrong, they are eligible for a death sentence. This “all-or-nothing” approach fails to uphold the theory that is foundational to the pursuit of justice: that one’s decreased capacity, regardless of form, should mitigate one’s punishment. At large, Kahler vs. Kansas points to a flaw in the judicial system: the potential to narrowly categorize or improperly examine all instances of insanity.
II. Was James Kahler insane?
In 2009, James Kahler shot and killed his wife, his two daughters, and his wife’s
grandmother—leaving only his son unharmed—and was convicted of capital murder.[7] At trial, the defense counsel did not dispute that Kahler shot the victims but argued the insanity defense.They brought forensic psychologist, Dr. Stephen Peterson, who claimed that Kahler was “incapable of forming requisite premeditation or intent at the time of the killings.”[10] Leading up to the shooting, Kahler’s wife had an affair, filed for divorce, and made a battery complaint against Kahler, which resulted in an arrest warrant served on him.[8] The breakdown of his family affected his conduct and led to him getting fired from his job.[9] During the shooting, his words indicated “disbelief and association,” as he was recorded to say “Oh Shit! I am going to kill her ... God damn it!”[11] To prove a lack of mens rea (intent) for a crime, Dr. Peterson also cited that Kahler was suffering from such a “severe major depression” that he couldn’t control his actions.
However, the Kansas jurisdiction did not find his depression extreme enough to the point of cognitive impairment. He was certainly cognitive enough to have the intention to leave his son unharmed, as well as pack his getaway car with long pocket knives and hundreds of dollars in cash, among other things. Lack of cognitive capacity is a higher standard to meet, but relatively less complex to disprove based on facts. Kahler did not mistake his family for animals (he killed only the women off one-by-one) and operated within the realistic realm of depression, to enact revenge after an unfortunate series of events.
Kansas’s narrow approach evaluates insanity only through a demonstrated lack of mens rea for a crime. Under this test, Kahler failed to show that he couldn’t form the intent to murder his family. His actions showed his cognitive understanding, that he was committing murder. However, the M’Naghten rule has an additional way of proving insanity—to show that he could not comprehend morality. If any of Kahler’s actions pointed to lack of conscience, he would have been acquitted under this prong.
On appeal, Kahler argues that Kansas’s departure from M’Naghten violates the due process clause because it negates a “fundamental” principle of justice in society. Kahler’s defense goes as far to say that if the event happened in other states that recognize an insanity defense, Kahler would have been able to present evidence proving that his mental state prevented him from acting according to the law. In a per curiam decision affirming his conviction and sentence, the Kansas Court rejected his argument and referred back to their ruling in State v. Bethel, which did not find such violation.[6] Then, Kahler appealed again and asked the U.S. Supreme Court to grant certiorari.
The Supreme Court purports to defend insanity as “determin[ing] whether the accused should be held responsible for the crime, or whether his mental condition will recuse him from responsibility.”[4]
Most jurisdictions have adopted some variant of the M’Naghten rule (currently, 45 states). Dating back to the mid-19th century, the M’Naghten rule involves a measure of 1) cognitive capacity, that the defendant did not know the nature or quality of the action, or 2) moral capacity, that if he did know it, he did not know the wrongfulness of the action.[5] If you cannot prove a lack of either capacity, you are found to be fully culpable of your crime and deserving of punishment. States have geared towards more conservative adoption of this standard for fear of criminals abusing it in their defense, especially with the public backlash over Reagan’s murderer Hinkley getting acquitted by reason of insanity.
Though the Kansas court did not use the moral incapacity test, Kahler seemed to have known right from wrong, as his case details are far less conclusive compared to the infamous Andrea Yates case, which presented a successful insanity defense on moral incapacity. Yates’ case demonstrated several notable points: 1) she had no alternative motive to take the lives of her children, 2) she made no effort to hide her crime, and 3) she told the police that she drowned her children to save their souls from Satan.[12] In contrast, Kahler fled the scene right after the crime and had a demonstrated motive of revenge given his circumstances and intentional act of not harming his son.
Examining Andrea Yates solely under Kansas’s mens rea test, such as what had been done for Kahler’s case, she likely would not have been acquitted. She understood the nature and quality of her crime, saying to the police: “I killed my kids.” The moral capacity test was necessary to show that she didn’t view drowning them as morally wrong—she believed she was saving them. Kansas’s test excludes this possibility, and at the conclusion of trial, the jury convicted Kahler of capital murder and recommended the death sentence.[13]
Under either test of insanity, Kahler does not seem to be insane to the point of complete acquittal; however, the Kansas court’s restrictive approach does not dedicate enough attention to a proper evaluation of culpability.
III. A Deep Dive into Kahler v. Kansas
In Kahler v. Kansas, the Supreme Court focused on whether due process requires Kansas to adopt an insanity test that includes the moral incapacity prong, but missed the opportunity to consider retributive implications central to our criminal justice system.
Delivering the majority opinion, Justice Kagan first emphasized the “high bar” that Kahler needed to prove — that Kansas’s interpretation of the insanity defense violates a principle of justice that is “fundamental” to the “traditions and conscience of our people.”[14] Kansas’s law did recognize the potential of insanity to relieve criminal responsibility, offering leeway for the defense to present evidence of mental illness both at trial and at sentencing, so Kahler would need to show that case law consistently and specifically affirms the moral capacity test that is absent in Kansas’s statute. Justice Kagan points to Leland v. Oregon, for rejecting the constitutional requirement of the “irresistible impulse” test and Powell v. Texas for giving states the power to determine “doctrine(s) of criminal responsibility.[15] She also considered numerous older common-law cases and concluded that while these aggregate cases did recognize insanity as a defense for criminal liability, they did not use language specific or consistent enough to compose a constitutional baseline for morally wrong acts.[16] Justice Kagan ultimately reaffirmed the historically broad application of the insanity defense, as well as deference to state governance to make “hard choices among values, in a context replete with uncertainty.”[17]
Justice Kagan’s position on the insanity defense is too broad of an application because moral culpability, compared to the rarer cognitive impairment allowed in the Kansas court, is closely tied to retribution and deserves further attention. By definition, a person is morally culpable if one has rational beliefs on what is right and wrong, and one is capable of acting accordingly in society. The classic theory of retribution states that human beings are “responsible moral agents” who can make choices for good or evil, and those who make evil choices deserve to be punished.[18] And among modern retributivists, Albert Alschuler argues that retributivism need not be deontological as the rules of good vs. evil; instead, it could focus on how society perceives desert, thus promoting a sense of reciprocity in a democratic process.[19] The perception of desert, then, is molded by the majority’s view of desert or the elected few’s, rather than a singular moral standard.[20] Either way, both views recognize that retribution takes into account personal circumstances and characteristics—who the human beings are, if society has good reason to punish, etc.—and is not just about physical action or harm (an “eye for an eye”).[21]
The majority concluded that the relevance of diminished rationality was sufficiently addressed by examining cognitive capacity, i.e., if the defendant did not know what one was doing at the time of the crime, then the defendant would not be convicted.[26] However, this baseline, as mentioned by the dissent, was insufficient because 1) Kansas’s statute left the matter of just desert, which has long been deemed the right of the defendant, to state discretion, and 2) the measure of just desert is contingent on an accurate measure of morality, by its very definition.[27] Since the Court has already recognized the potential of diminished rationality to mitigate sentencing, evidenced by historical precedents concerning proportionality as well as several theories of retribution, the Court should require more room, beyond the baseline test of cognitive capacity, for this line of reasoning to truly take root.
An act of murder is undeniably terrible. However, the modern retributive lens calls us to consider not only whether the crime itself is deserving of the death penalty, but also whether the actor of crime is morally responsible to meet their punishment. The Court should have discussed whether Kansas’s law requires sufficient examination of the actor’s moral culpability. Since the statute does not even mention, let alone require, an examination, Kahler v. Kansas does not meet the retributive aim of punishment.
IV. Conclusion
Even if we do not agree on the extent to which Kahler’s conduct was hindered by his mental ability, it is still vital to examine the legal consequences of Kahler’s conviction, and the Court, by deferring to state governance, fails to do so. The death sentence conviction is overly absolute—a punitive response to an illness that calls for medical treatment. To the majority opinion, the inconclusive definition of insanity absolves them of establishing medical stakes. Among other things, Justice Kagan cited the American Psychological Association in their quote: “Insanity is a matter of some uncertainty.”[28] The Court has emphasized the limited nature of science in enforcing the relationship between mental illness and criminal responsibility, as found in Leland. However, just because there’s an uncertain role does not mean there should be attention or significant deliberation dedicated to treatment, and the Court essentially closes off all rehabilitative avenues by affirming Kansas’s decision and solely focusing on the constitutionality of the argument. Gerald Gaes distinguishes between whether treatment works and whether “we ought to treat them,” arguing that treatment, even if proven ineffective, gives inmates hope in society.[29] So, perhaps the more astute question isn’t: are you insane if you don’t know right from wrong? But rather: does not being able to tell right from wrong render you deserving of treatment? Kansas’s “all-or-nothing” approach to insanity leaves little room for hope.
In fact, the Kahler ruling may have generated unintended negative social consequences. In the past, the Court has demonstrated commitment to protect vulnerable minorities in cases concerning the Eighth Amendment and the death penalty, for fear that selective application would “feed prejudice against the accused.”[30] But here, a mentally ill defendant is not only unprotected, but also subject to “harsh criminal sanctions up to and including death” under Kansas’s sentencing provisions, as the dissent pointed out.[31] Furthermore, Kansas lawmakers do little to mitigate the jurors’ unfounded fear of releasing dangerous criminals,[32] as in reality, if a criminal defendant is in fact found that he is not guilty by reason of justice, he will most likely be confined to a mental institution up to life or until 1) his sanity returns, or 2) he is no longer a danger to himself or society.[33] The stigma against insanity seems to be worsened by the Kahler outcome, which inferred the risk of sentencing a mentally ill person to death.
The aim to bridge morality with the law is at the very foundation of our criminal justice system. And considering the recent push towards the treatment, rather than criminalization of, mental illness, the Court should have addressed the dangerous implications of such a death penalty sentence allowed by the Kansas statute.
[1] Kahler v. Kansas, 140 S Ct 1021 (2020)
[2] Jones v. United States, 463 U.S. 354 (1983)
[3] Holloway v. U.S., 148 F.2d 665 (1945)
[4] Graham v. State, 566 SW 2d 941 - 1978
[5] Kahler v. Kansas, 140 S Ct 1021 (2020)
[6] State v. Bethel, 275 Kan. 456, 66 P.3d 840 (2003).
[7] State v. Kahler, 410 P.3d 105, 113 (Kan. 2018) (per curiam).
[8] Ibid. at 3.
[9] Ibid.
[10] Ibid.
[11] Kahler, 410 P.3d, 125 (Kan. 2018)
[12] Phillip J. Resnick, The Andrea Yates Case: Insanity on Trial, 55 Clev. St. L. Rev. 147 (2007), https://engagedscholarship.csuohio.edu/clevstlrev/vol55/iss2/4
[13] State v. Kahler, 410 P.3d 105, 113 (Kan. 2018) (per curiam), 3.
[14] Kahler v. Kansas, 140 S Ct 1021 (2020)
[15] Ibid. at 2.
[16] Ibid at 7.
[17] Ibid. at 17.
[18] Bonnie, Richard J., et al. Criminal Law. Foundation Press, 2015.
[19] Alschuler, Albert W. “The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts about the Next.” The University of Chicago Law Review, vol. 70, no. 1, 2003, p. 1., https://doi.org/10.2307/1600541.
[20] Ibid.
[21] Ibid.
[22] 18 u.s.c. § 17
[23] Atkins v. Virginia, 536 U.S. 304 (2002)
[24] Graham v. Florida, 560 U.S. 48 (2010)
[25] Morse, Stephen. “Mental Disorder and Criminal Law” The Journal of Criminal Law and Criminology (1973-), Summer 2011, Vol. 101, No. 3 (Summer 2011), pp. 885-968
[26] Kahler v. Kansas, 140 S Ct 1021 (2020)
[27] Ibid. at 18.
[28] Kahler v. Kansas, 140 S Ct 1021 (2020)
[29] Bonnie, Richard J., et al. Criminal Law. Foundation Press, 2015.
[30] “Kahler v. Kansas.” Harvard Law Review, 10 Nov. 2020, https://harvardlawreview.org/2020/11/kahler-v-kansas/.
[31] Kahler v. Kansas, 140 S Ct 1021 (2020)
[32] “Juries' Reluctance to Accept Insanity Pleas Linked to Fear, Experts Say.” Los Angeles Times, Los Angeles Times, 18 Apr. 1993, https://www.latimes.com/archives/la-xpm-1993-04-18-mn-24446-story.html.
[33] Jones v. United States, 463 U.S. 354 (1983)