On Monday in a major turn in the law, the US Supreme Court ruled in favor of the state of Kansas and against a man who argued the state law violated his constitutional rights by refusing him the option of an insanity defense.
On Monday, the court ruled: “Due process does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.”
Under the M’Naghten rule adapted from the landmark English ruling, the inability of the defendant due to mental illness to distinguish right from wrong establishes the basis for an insanity plea.
But Kansas has adopted a new “cognitive incapacity test” which “examines whether a defendant was able to understand what he was doing when he committed a crime.”
Under Kansas law a defendant may raise mental illness to show that he “lacked the culpable mental state required as an element of the offense charged,”
Kansas does not recognize any additional way that mental illness can produce an acquittal, although a defendant may use evidence of mental illness to argue for a lessened punishment at sentencing. Moreover, Kansas does not recognize a moral-incapacity defense.
Therefore, under the law in Kansas, a defendant may argue mental illness but only to prove that there was no intent to commit a crime, otherwise it cannot be used as a defense.
Kansas is one of five states to have abolished the insanity defense—and many believe the ruling by a 6-3 opinion, where the court ruled an insanity defense is not constitutionally required, could inspire other states to do so as well.
James Kahler was convicted of capital murder for killing his wife and three other family members in 2009.
Prior to trial, he argued “that Kansas’s insanity defense violates due process because it permits the State to convict a defendant whose mental illness prevented him from distinguishing right from 
wrong. The court disagreed and the jury returned a conviction.”
During the penalty phase, Kahler was “free to raise any argument he wished that mental illness should mitigate his sentence, but the jury still imposed the death penalty.”
The Kansas Supreme Court rejected Kahler’s due process argument on appeal.
In the ruling Justice Elena Kagan broke from her more liberal colleagues to join the majority and write the majority opinion.
“Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like,” she writes.
“That choice is for Kansas to make — and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands centuries later.”
She stressed that Kansas law allows a defendant to “present psychiatric and other evidence of mental illness” through testimony to prove that “he had no intent to kill” to defend himself against a criminal charge.
“The defendant can use that evidence to show that his illness left him without cognitive capacity to form the requisite intent,” she said.
She added, Kansas permits a defendant to offer whatever mental health evidence he “deems relevant at sentencing.
“If a mentally ill defendant had enough cognitive function to form the intent to kill, Kansas law directs a conviction even if he believed the murder morally justified,” she added.
But Stephen Breyer along with Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
He writes that “the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity.”
However, in this case, “Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”
This, he argues, upends about 700 years of Anglo-American legal history.
He is thus convinced that Kansas’ law “‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”
Justice Breyer uses a critical example to illustrate the problem here where two individuals have been prosecuted for murder. In one case, Breyer wrote, the defendant—because of severe mental illness—believed that he was killing a dog, while in the second case the defendant believed, as a result of severe mental illness, that a dog had told him to kill the person.
He writes: “Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.”
He rejects the state’s argument that it had “not abolished the insanity defense or any significant part of it” and instead had “simply moved the stage at which a defendant can present the full range of mental-capacity evidence to sentencing.”
Instead, he argues, “our tradition demands that an insane defendant should not be found guilty in the first place..” On the other hand, in Kansas, “[t]he insane defendant is, under Kansas law, exposed to harsh criminal sanctions up to and including death. And Kansas’ sentencing provisions do nothing to alleviate the stigma and the collateral consequences of a criminal conviction.”
He adds, “Kansas argues that the insane, provided they are capable of intentional action, are culpable and should be held liable for their antisocial conduct.”
He argues, “To say this, however, is simply to restate the conclusion for which Kansas argues in this case. It is a conclusion that in my view runs contrary to a legal tradition that embodies a fundamental precept of our criminal law and that stretches back, at least, to the origins of our Nation.”
—David M. Greenwald reporting
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