589 U.S. ___ (2020).

One-Sentence Takeaway: The Eighth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, does not require the states to adopt an insanity defense in criminal cases which is based on the defendant’s ability to recognize that his or her crime was morally wrong.

REFERENCE DESK

Lord v. State of Alaska, No. A-12213 (Alaska App. Apr. 23, 2021):

In the 2019-2020 term, the United States Supreme Court granted certiorari to a Kansas Supreme Court case, Kahler v. Kansas, to decide whether Kansas’s abolition of the insanity defense violated the Eighth Amendment and the Fourteenth Amendment. The case resulted in extensive briefing on the history of the insanity defense and the approaches followed by the different jurisdictions. Amicus briefs were filed by multiple organizations on both sides of the issue.

Ultimately, the decision rested only on the question of whether Kansas’s abolition of the insanity defense violated the due process clause of the Fourteenth Amendment. The Supreme Court did not reach the Eighth Amendment question because that issue was not properly before it.

In a majority opinion authored by Justice Kagan, six members of the Supreme Court upheld the Kansas law as constitutional. But three justices dissented, essentially agreeing with the position advocated by Lord in her direct appeal — that is, the position that due process requires an insanity defense that acknowledges a defendant’s mental capacity to understand the wrongfulness of their actions. Justice Breyer authored the dissent, which was joined by Justices Ginsburg and Sotomayor. In the dissent, Justice Breyer noted that “45 States, the Federal Government, and the District of Columbia continue to recognize an insanity defense that retains some inquiry into the blameworthiness of the accused.” And he further concluded that “[s]even hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself convince me that Kansas’ law `offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'”

The majority opinion held otherwise, as we did in Lord. However, the majority opinion rested on different grounds than our opinion in Lord. Central to the majority’s holding was the fact that Kansas law allowed evidence of mental illness at sentencing “to mitigate culpability and lessen punishment” and the fact that Kansas law specifically gave the authority to the sentencing judge to “replace any prison term with commitment to a mental health facility.” As the majority opinion states:

[S]ignificantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. . . . In other words, any manifestation of mental illness that Kansas’s guilt-phase insanity defense disregards — including the moral incapacity Kahler highlights — can come in later to mitigate culpability and lessen punishment. And that same kind of evidence can persuade a judge to replace any prison term with commitment to a mental health facility. So as noted above, a defendant arguing moral incapacity may well receive the same treatment in Kansas as in States that would acquit — and, almost certainly, commit — him for that reason.

In other words, the United States Supreme Court upheld Kansas’s abolition of the insanity defense, at least in part, because Kansas law still treated severely mentally ill defendants in a manner similar to how they would be treated if they had been found not guilty by reason of insanity.

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