This article explores the history of the Eighth Amendment as it relates to the insanity defense in criminal prosecutions and its intersection with the prohibition against cruel and unusual punishment. The purpose is to decipher how the US Supreme Court may ultimately rule on a pending case from Kansas asking whether it is constitutionally permissible to exclude the insanity defense in criminal trials. In the end, the ideologies of the Supreme Court justices, past rulings, and discussions in oral argument point to deference for the right of individual states to define their systems of criminal justice.
Kahler v. Kansas: The Procedural Posture
Each year, the US Supreme Court receives greater than seven thousand cases for review through the process of petitioning for a writ of certiorari. Cases that come before the Court are thoroughly briefed and contain questions that are complex, and many times have differing approaches in the lower courts. The sheer magnitude of cases requested are not often heard due to the limiting body of the Supreme Court, and after careful review of the briefings, the Court accepts no more than roughly two percent of all cases.
During the opening session of the October 2019 term, the US Supreme Court heard oral arguments in one of the unicorn cases that comes before the Court. In Kahler v. Kansas, argued October 7, 2019, the issue was whether excluding mental insanity as a defense to criminal conduct in a state violates the Eighth Amendment prohibition against cruel and unusual punishment as applied through the 14th Amendment. Kahler v. Kansas, No. 18-6135 (U.S. argued Oct. 7, 2019). Whether a person’s unnatural psychological state protects him or her from guilt and consequentially punishment for his or her actions is a question the Court has considered time and time again. Regardless of the Court’s decision in Kahler, it will undoubtedly bear on society as a whole because the result involves an interpretation to one of the fundamental individual rights as set forth in our Constitution. And while each student who traverses through the educational system in the United States learns the basics to the start of our country, it seems that after secondary school very few individuals concern themselves with their rights. Once we pass through the necessities of our educational boundaries, we realize that for the general population, unless a right is directly impacting the daily flow of information or affecting their liberties, the Constitution is simply not a point of focus. But even if the violation of a protected right occurs only to our neighbor, the violation in and of itself weakens its power for everyone.
Since pre-formation of the United States of America, it has remained a constant theme that mentally insane persons are not to be punished to the same degree as those individuals able to distinguish right from wrong during the commission of their offenses. Notably, however, during the forming of the articles of confederation that would ultimately frame our laws, the signers to the US Constitution did not expressly provide for the prohibition of punishment for criminal conduct arising from an unstable mind—incapable of understanding right from wrong—whether the individual was mentally insane, addicted to narcotics, or some other disorder that affected his or her mental capacity. Just four years later, in 1791, alongside nine other amendments, drafters created the Eighth Amendment of the US Constitution to form the Bill of Rights.
The Eighth Amendment effectively prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments and thus seemingly adopts this notion that it would be unwise to punish those less capable. The US Supreme Court has regularly surmised that the third clause in the Eighth Amendment to the US Constitution prohibits punishment of those who are mentally incapable of discerning and choosing between right and wrong as doing so inherently inflicts cruel and unusual punishment, stating very broadly that punishment requires a graduated and proportionality test using current prevailing standards of decency. It appears that courts of review that are called to consider whether it is appropriate to punish those who are incapable of understanding their behaviors or even the immorality of their behaviors have drawn similar opinions. Utilizing objective measures to determine whether a specific punishment passes the barrier of appropriateness to exclude excessiveness, courts simply state that it is not okay to punish the mentally insane to the same degree.
Like it does the youth and elderly, society handles the mentally insane more delicately than the general population. Even though the individuals in these populations commit offenses warranting the most severe of punishment, they are typically considered less culpable or alternatively excused for their actions because they may be unable to formulate an appreciation for their behaviors. The questions presented for conviction have centered on whether one lacks moral capacity required by law to face judgment, whereas the questions presented for punishment target the issue concerning the severity of punishment once it has been determined that an individual meets the legal requirement to be tried and punished for his or her crimes.
Robinson v. California: The Beginning of Incremental Shifts
Prior to 1962, the Eighth Amendment always focused on the method of punishment and to what degree it would be considered appropriate. A slight shift in the Eighth Amendment perspective occurred in Robinson v. California, when petitioner Robinson sought review before the highest court to opine whether lower courts are constitutionally permitted to have criminal laws that could potentially punish persons who suffer from an illness. 370 U.S. 660 (1962). In Robinson, the trial court found the defendant guilty of merely being addicted to a narcotic substance. The conviction was drawn from the testimony of an officer who observed signs associated with drug use on the defendant. Yet, there was no evidence that the defendant used or possessed the substance in California, but simply signs supporting the premise that at some point in the past the defendant had occasionally used narcotics. Additionally, there was no harm to the community associated with the defendant’s status of being an addict. The issue then hinged on whether it is constitutionally permissible to criminally punish an individual for a pure illness rather than a committed act that may have been caused by the illness. The Court held that it was unconstitutional to punish individuals who suffered from a narcotics addiction, finding that by doing so would constitute cruel and unusual punishment. The law therefore, without proscribing a criminal act, was unconstitutional.
Four years later, the Court denied certiorari for a case that would potentially extend the “narcotics” rule to include prohibition against punishment of those inflicted with alcoholism. (Budd v. California, 385 U.S. 909 (1966).) In Budd, Justice Fortas, dissenting from the majority for denying certiorari, wrote:
Our morality does not permit us to punish for illness. We do not impose punishment for involuntary conduct, whether the lack of volition results from “insanity,” addiction to narcotics, or from other illness. The use of the crude and formidable weapon of criminal punishment of the alcoholic is neither seemly nor sensible, neither purposeful nor civilized.
Id. at 912–13 (Fortas, J., dissenting). Justice Douglas joined in the dissent, believing that like the narcotics addict, the alcoholic is beyond the reach of the criminal courts.
Powell v. Texas: Are Some People Incapable of Controlling Their Actions?
It took only two additional years before the US Supreme Court granted certiorari on a case squarely addressing the issue of whether alcoholism was an illness that excuses or prohibits criminal punishment. (Powell v. Texas, 392 U.S. 514 (1968).) In Powell, the defendant was convicted of “being found in a state of intoxication in a public place,” which at the time, in Texas, was a criminal charge punishable by a fine. The majority of the Court took the position that unlike the defendant in Robinson, here the defendant’s conviction was based on a criminal act rather than a status. Thus, the Court held that the conviction did not violate the cruel and unusual punishment clause of the Eighth Amendment.
Although outnumbered, Justices Fortas and Douglas, now joined by two others, again contended that the courts should have no authority to punish for an illness that one cannot control nor behaviors that result from such illness, though the most prolific view in Powell derived from the concurring opinion in which Justice Black, along with Justice Harlan, cautioned that it would be dangerous to place lower courts under a constitutional mandate to forgo criminal punishment of individuals in local communities for the commission of acts purely based on an illness. Justice Black found it problematic that a court so far removed from the social ills of a specific community could issue requirements on how to deal with those who are charged with such conduct. Although the facts in Powell were not sufficient to mandate a constitutional rule, Justice Black opined that he could not “consider any findings that could be made with respect to ‘voluntariness’ or ‘compulsion’ controlling on the question whether a specific instance of human behavior should be immune from punishment as a constitutional matter.” Id. at 540 (Black, J., concurring).
For more than five decades after Powell, the US Supreme Court has echoed a deafening silence on extending constitutional protections to individuals in states to include a mandate that a court include a defense to excuse behaviors for mental illness or addiction during the guilt phase of a trial. How then is it that now, in 2019, the highest court in the land is called to determine whether it is permissible for an individual state to remove the insanity defense from the guilt phase of proceedings, and by doing so could essentially deny due process? Recently, discussion surrounding the Eighth Amendment has resurged in the public eye as a number of cases have sought to present insanity defenses in state courts that either abolished or never contained an insanity defense. The US Supreme Court has thus been called to resurge opining on varying issues concerning the Eighth Amendment and how it is applied to the states through the 14th Amendment. One reoccurring topic has centered around the conviction and punishment of the mentally insane population.
It is important to note that the constitutional mandate issue would transform beyond the mere assertion as to whether an individual is guilty by reason of insanity, which is presently allowed in most states with the M’Naghten test or some modified version.
M’Naghten allows for a jury instruction to find one guilty by reason of insanity if the accused, by mental defect, is unable to appreciate their actions or was unable to know right from wrong. Once an individual is found guilty by reason of insanity varying options arise for the convicted including civil commitment. The individual is not wholly excused from their behaviors and in some instances face(s) a greater stigma or lengthier term of removal from society.
In Kahler, the petitioner is requesting a mandated constitutional protection that one be excused from criminal liability if it is shown that a mental disorder prohibited the individual from being able to distinguish between right and wrong.
Atkins v. Virginia: The Death Penalty Goes Too Far
The last landmark case overturning a constitutional provision with respect to the third clause of the Eighth Amendment in relation to mentally retarded criminal defendants occurred in 2002. The Court held that executions of the mentally retarded is cruel and unusual punishment and thereby prohibited under the US Constitution. Atkins v. Virginia, 536 U.S. 304 (2002). This decision overturned the holding in a 1989 case that upheld the execution of the mentally insane. Penry v. Lynaugh, 492 U.S. 302 (1989) (finding that (1) the Eighth Amendment did not categorically prohibit the death sentence for mentally retarded defendants and (2) there was not a national consensus against such executions).
In Atkins, petitioner Daryl Atkins challenged his sentence of death after his conviction for the abduction, armed robbery, and capital murder of Eric Nesbitt. In the summer of 1996, Atkins, together with William Jones, abducted Mr. Nesbitt, robbed him at gun point with a semiautomatic handgun, drove him to retrieve additional funds from an automated teller machine, and then drove him to an isolated location where he was shot and killed. Both accused individuals testified during the guilt phase of Atkins’s trial; however, it was determined that Jones’s testimony was “both more coherent and credible” over Atkins’s testimony. Counsel for Atkins conceded that petitioner was capable of discerning right from wrong and did not introduce testimony regarding his mental stability from a forensic psychologist who examined the petitioner pretrial until the time of sentencing. The forensic psychologist testified that the petitioner was mildly mentally retarded.
In Atkins, the Court discussed the reasoning behind an ill-advised systematic decision in executing individuals who had documented “disabilities in areas of reasoning, judgment, and control of their impulses.” Atkins, 536 U.S. at 306. The Court advised that those individuals are incapable of acting with the same level of moral culpability typically associated with the most heinous adult criminal conduct. The Court, however, did not wholly excuse the behavior of the accused but found instead that there is no legitimate purpose behind executing someone who can neither understand nor appreciate the act or consequence for his actions. It was therefore the decision of the Court that these types of individuals are not suitable for the most severe punishment that our laws permit. The Court determined that prior to ascertaining the appropriate punishment, it is first necessary to determine whether the individual meets the “law’s requirements for criminal responsibility” in order to stand and answer for the alleged conduct. Id.
Kahler v. Kansas: The Next Round
The Court recently upheld the constitutionality of the insanity defense used by Arizona. Clark v. Arizona, 548 U.S. 735 (2006). In Clark, the Court held that neither Arizona’s insanity test nor its restriction on the presentation of evidence bearing on an individual’s mental illness and incapacity violated the constitutionally protected due process. In Kahler v. Kansas, the US Supreme Court now toils over a very similar argument and whether it is advisable to create a black letter law. The attorney for the petitioner argued that “[f]or centuries, criminal culpability has hinged on the capacity for moral judgment, to discern and to choose between right and wrong. The insane lack that capacity.” Transcript of Oral Argument at 3:11-14, Kahler v. Kansas, No. 18-6135 (U.S. argued Oct. 7, 2019). The argument focused on requesting the Court to mandate Kansas to conform to providing a method by which defendants can argue insanity at all stages of a criminal trial to evade liability.
The petitioner in Kahler was charged and convicted of a quadruple homicide resulting in the death of his estranged wife, two teenage daughters, and the grandmother of his estranged wife. After a tumultuous process for divorce that stemmed from an extramarital affair, petitioner formulated a plan to kill his wife. At the time, his wife, along with their two daughters and son, had relocated to reside with her grandmother outside of Topeka, Kansas. The petitioner drove to the grandmother’s home, broke in, and proceeded to kill everyone in the home with the exception of their son. He murdered the daughters because he believed they had sided with their mother in the divorce. He killed the grandmother because he believed she had a duty to encourage the wife to remain in the marriage. The petitioner spared the son’s life because he did not believe the son had chosen sides in the divorce. He then fled the scene and turned himself in for the crimes the next day. At the trial, the petitioner’s attorney argued that he was incapable of forming the requisite intent, mens rea, to commit the offense due to severe depression at the time of the offense. However, the trial court precluded the attorney from arguing that because of the depression, petitioner could have been not guilty by reason of insanity, determining that under present Kansas law, the insanity defense was not available during the guilt/innocence phase. In 1995, the Kansas legislature removed the insanity defense and replaced it with a mens rea intent approach.
In answering the question of whether Kansas’s omission of the insanity defense from its penal code is constitutional, the Court is called upon to answer whether the Constitution mandates the states to include the insanity defense in their penal code. Justice Alito, in the Kahler oral argument, commented on the widespread prevalence of mental illness, calling a mandate for the insanity defense “revolutionary.” Justice Alito recognized that if mental illness is a defense to crime, the vast majority of criminal defendants’ guilt would be in question and unreliable. The observation is correct. How a person turns on this question is political. Justice Kavanaugh also questioned whether, even if constitutionally mandated, the jury is properly authorized to make determinations about whether a person is mentally competent to commit crime. In all other respects, mental health, including its diagnosis, treatment, and effect on behavior, is the province of specialized experts in psychology and medicine. Whether the jury can make sound and reliable determinations about a person’s mental illness and its impact on the person’s criminal culpability is difficult to answer. Whether the Court fully reckons with the white elephant of the overlapping demographics of incarcerated individuals and mental illness in Kahler remains to be seen, but undoubtedly this will not be the last time that the specter is raised.
These issues tie back to the original conservative position that this is an area of criminal justice properly reserved to the states. Even a ruling in favor of the petitioner in Kahler begs the question as to what legal framework Kansas would have to implement to effectuate a constitutional insanity defense. Does mental illness absolve the accused or merely substitute a psychiatric hospital for the prison? What types of illness constitute a defense and with what severity? A decision in favor of the petitioner in Kahler could mean extensive legislative work from the Supreme Court and lower courts from the bench.
Conclusion: To Each His or Her Own
Defining crime and punishment is a historic and traditional domain of the individual states. But the federal Constitution mandates certain domestic norms state laws must abide by, i.e., the Eighth Amendment’s right to be free from cruel and unusual punishment. The tilt of this balance is at issue in Kahler v. Kansas, and it is not clear what the objective moral truth is.
There are bigger implications connected with the decision in this case. If the Kansas state’s exclusion of the insanity defense is unconstitutional, then it is unconstitutional for all states; and all states must then provide for an insanity defense. Given the current conservative nature of the Court, it is unlikely that Kansas’s exclusion of the insanity defense will be disturbed, even as they may disapprove. The Court is likely to reinforce the premise that our nation will continue to “be more tranquil and orderly” when local communities “control their own peculiarly local affairs under their own local rules.” Powell v. Texas, 392 U.S. 514, 547 (1968). Although the country’s “standards of decency” have evolved to a point where it is no longer constitutional to execute the mentally insane, among other recent legally recognized rights, the Court appears unlikely to go as far as mandating what individual states do with the clinically insane when they commit crimes. From a pragmatic view, the majority of states do provide for the insanity defense on their own initiative; generally, the matter is not controversial and handled appropriately within state courtrooms.