Yesterday, the Supreme Court of the United States heard the first case of Court’s new term, Kahler v. Kansas. At issue is whether a state can abolish the traditional insanity defense in favor of a less inclusive mens rea test. As numerous experts have explained, and as I will explain below, the Court should reject Kansas’ law and reinstate the insanity defense.
The insanity defense goes back to our system of common law, inherited from the British after we won our independence. It is essentially a system that says that prior court decisions have the force of law. In the case of the Supreme Court, their decisions become the law of the land. And the insanity defense, which is included in this body of law, says that if a person doesn’t know the nature of their actions, or doesn’t know right from wrong, they shouldn’t be held liable. And as many mental health advocacy organizations have pointed out, the idea of not holding people who are severely mentally ill criminally liable goes back even further, with cases appearing even in ancient times.
The Kansas law, by contrast, allows evidence of mental illness or injury only for the purposes of establishing reasonable doubt in an element of the crime. For example, if a person, because of their mental illness, did not intend a criminal act, they would be found not guilty. However, that ignores the reality, reinforced by modern research, that some individuals with severe mental illness might intend a specific result, such as murder, but may not be able to understand that it is wrong, or worse may not be able to stop themselves. For example, if they are having a dissociative episode they may be trapped in a mental state where all they can do is watch themselves commit a criminal act.
The Kansas law was passed, in part, due to public concern that criminals may abuse the traditional insanity defense to escape punishment. However, as the American Psychological Association’s (APA) brief points out, forensic psychologists and psychiatrists are capable of properly identifying valid claims as opposed to non-valid claims. Indeed, the insanity defense is a difficult road to take for a defense attorney and is rarely successful.
Nor is someone who escapes criminal liability due to such a defense necessarily going to be a danger to the public, since they are often institutionalized as a result of the severity of their condition, sometimes for even longer than their prison sentence would have been. Nevertheless, Kansas felt the need to change the law, and now mental illness finds itself before the supremes.
It is not enough that we end the stigma surrounding mental illness. We must also insure that our laws and our policies address mental health issues with compassion. There is considerable evidence that the defendant in the Kansas case suffers from severe mental illnesses, and it goes against our inherent ideas of justice, as well as the 8th and 14th amendments to the U.S. Constitution, to hold someone criminally liable when they are in the grips of a mental illness that prevents them from understanding or preventing their actions. In this case, since it is a capital offense, there is the further question of whether we as a society are to execute those suffering from severe mental illnesses.
Regardless of how the Court decides, there is still a lot of work to be done. For starters, getting rid of the word ‘insanity’ and replacing it with something better. Beyond that, we must insure that those that are found not guilty by reason of mental illness, and are instead sent to mental health institutions, are treated humanely, and that they are not forgotten by society.
But for now, the nine men and women of the Court must decide that the traditional insanity defense is the law of the land. Otherwise, justice will have failed, in the most supreme of ways.