Criminal Justice Insider

An in-depth review and analysis and of emerging topics in both federal and New York State criminal law. This blog explores developments in substantive and procedural criminal law, providing practical insights to the latest case law and statutory changes.

Insanity is Relative – The Precarious State of the Insanity Defense


While the trial level criminal courts have limited themselves to essential operations amid the coronavirus outbreak, the Supreme Court of the United States continues to function almost as normal. Oral arguments scheduled for the March session have been postponed, but the Court continues to release opinions. Thankfully, the Court has reported that all of the justices are healthy and well and they all continue to participate in conferences, albeit remotely.

On March 23, 2020, the Court released an important decision in Kahler v. Kansas, No. 18-6135 concerning the insanity defense. The insanity defense can be employed by mentally ill criminal defendants as a means of absolving themselves of criminal culpability. The precise test for insanity, which varies by state, typically fits into two categories. The first is the “moral incapacity test” whereby the trier of fact is to determine whether the defendant’s mental illness left him or her incapable of determining right from wrong with regard to his or her criminal conduct. The other category is the “cognitive incapacity test” wherein the trier of fact is tasked with trying to determine whether the defendant understood what he or she was doing when he or she committed the crime.

In Kahler, the defendant, James Kahler, was charged with capital murder after he shot and killed four family members. The State of Kansas only employs the “cognitive incapacity test,” and does not allow acquittal on “moral incapacity” grounds in insanity defense cases. Prior to trial, Kahler argued that this limitation constituted a violation of his due process rights under the Fifth and Fourteenth Amendments. The trial court rejected this argument, and Kahler was ultimately convicted. Kahler’s trial verdict was affirmed on appeal by the Kansas Supreme Court, and was ultimately appealed by to the United States Supreme Court.

The Supreme Court did not order a new trial for Kahler. The panel on the majority opinion was unusual. Justice Kagan, typically a member of the Court’s liberal arm, authored the opinion and joined with the conservative wing consisting of Justices Roberts, Alito, Thomas, Gorsuch and Kavanaugh.

In reviewing Kahler’s conviction, the Supreme Court ruled that Kansas is not required to adopt a “moral incapacity test,” and, consequently, that its failure to do so did not violate Kahler’s due process rights. The Court found that the states are the primary arbiter of criminal liability for their citizens. Notions of criminal responsibility are complex and ever-changing as society shifts and fluctuates. The states are in the best position to evaluate and revise their laws to reflect these changes.

The Court found that Kansas recognizes a certain, albeit limited, definition of insanity as embodied by the “cognitive incapacity test.” The “moral incapacity test” though widely adopted is not so engrained into principles of justice as to be a fundamental aspect of due process. Rather, states have historically revised the insanity defense to comport with changing medical and legal theories.

In dissent, Justice Breyer, joined by justices Ginsberg and Sotomayor, argued that by adopting only a “cognitive incapacity test,” Kansas had all but eliminated the insanity defense entirely. Justice Breyer illustrated severe limitation Kansas has placed on the insanity defense by a simple example. In his hypothetical, a defendant has shot and killed another person. This defendant is tried twice, employing two different theories of insanity. In the first trial, the defendant proves that as a result of his mental illness, he thought the person was a dog. In the second trial, the defendant proves that his mental illness caused him to believe that the dog ordered him to kill the victim. Before the majority’s ruling, an acquittal would have been issued from both trials. Now, in Kansas, the second trial can result in a conviction because the defendant understood the individual acts which comprise the crime, even if he was incapable of understanding the moral gravity and irrational circumstances. Justice Breyer and his dissenting colleagues argued that this constitutes a grave miscarriage of justice and a substantial abridgment of a defendant’s fundamental due process rights.

The decision is likely to have widespread ramifications for the insanity defense. Any criminal defense attorney will tell you that the defense is difficult to employ under any circumstances, and the bar is exceedingly high. Now, states are further able to raise the bar to make the defense all but impossible to implement. This can have the unjust impact of having mentally ill defendants punished for conduct they cannot control, and face incarceration rather than treatment.

We will continue to monitor the state and federal criminal law to determine the effects that emanate from this important decision on the insanity defense.

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03.26.2020  |  PRACTICE AREAS: Criminal Defense

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