Kansas is an outlier. It’s one of only four states that does not have an insanity defense.
And that matters a great deal to James “Kraig” Kahler, the former director of Columbia Water & Light, who was convicted in Kansas and sentenced to death in 2011 for the murders of his estranged wife, two daughters and his wife’s grandmother in Burlingame, Kansas, on Thanksgiving weekend 2009.
The constitutionality of Kansas’s lack of an insanity defense was taken up Oct. 7 by the U.S. Supreme Court with the Kahler v. Kansas case. The question is whether the lack of an insanity defense violates the 14th Amendment’s due process clause and the Eighth Amendment’s ban on cruel and unusual punishment.
Paul Litton, MU associate dean for faculty research and law professor, speculated that the nation’s highest court decided to hear the case because it’s an important matter of justice — whether a person with a severe mental disorder has a chance to argue that he should not be held responsible for a crime.
The insanity defense came under attack after the 1982 verdict in the John Hinckley Jr. case, Litton said. A jury found Hinckley not guilty by reason of insanity after his attempted assassination of then-President Ronald Reagan.
In 1995, Kansas abolished the insanity defense, replacing it with a mens rea — mental state — approach. It allows a defendant to use evidence of mental illness to show that he did not commit the criminal act intentionally. But the law stops short of allowing a defendant to use mental health evidence to show that he lacked the rational capacity required to fairly hold him responsible for his actions.
Litton pointed to the Andrea Yates case to illustrate the difference.
A Texas jury found Yates not guilty by reason of insanity after she admitted to intentionally killing her five children. She thought it was the only way to “save her children from eternal torture,” Litton said. She might have killed intentionally, but, under an insanity standard, she could still argue that her mental illness rendered her so irrational that punishment was inappropriate, he explained.
“Under Kansas law, she wouldn’t have a leg to stand on,” Litton said. “Because she did intentionally kill, and the Kansas law says you can only use your mental illness to show that you didn’t have intent.”
In Kahler v. Kansas, the state is arguing that it did not abolish the insanity defense but “redefined” it.
“This is not a take on insanity,” Litton said. “It’s an approach to mental illness evidence, but it is not an insanity standard.”
Kansas’ lack of the insanity defense violated Kahler’s 14th Amendment due process rights — which address fundamental fairness — attorney Sarah Schrup argued on behalf of Kahler.
Schrup turned to history in her oral argument in front of the U.S. Supreme Court. She asserted that since the 1500s, a defendant’s guilt has depended on his ability to know right from wrong. The insane lack that moral capacity, she said.
“What we know (from history) is that these people were not even subject to prosecution at all,” Schrup argued before the court.
In rebuttal, Toby Crouse, Kansas solicitor general, contended that the way Kahler’s attorneys characterized the insanity defense does not have historical roots. He estimated the “right versus wrong test” was established in the 1800s. What mattered most was whether a person could form criminal intent.
Justice Sonia Sotomayor argued that the mens rea test in the 1400s would have deemed someone who hears voices telling them what to do as a “lunatic.”
“Many of them know they’re killing somebody, so intent under your mens rea test is met,” Sotomayor said. “They absolutely know they’re killing someone; they just have no ability to say no.”
Justice Samuel Alito questioned Schrup’s definition of a mental disorder and the scope of defendants who could plead insanity because of their mental illness. If every person who committed a crime and had a diagnosis in the Diagnostic and Statistical Manual of Mental Disorders could argue their moral capacity, that range would include one out of every five people in the United States, Alito said.
It’s not about a diagnosis, Schrup said, but if a person “can’t tap into the part of (their) brain that allows (them) to choose right versus wrong.”
The insanity defense is rarely used, and winning with it is even more uncommon, she told the court.
“It’s invoked in less than 1% of the cases and successful in only a quarter of that,” Schrup said. “We’re not talking about a huge number of people.”
In line with Schrup’s history defense, Justice Ruth Bader Ginsburg pointed out that historically, the insane didn’t fare better than convicts. Those found insane were sentenced to bedlam — a label for Bethlem Royal Hospital, a psychiatric institution in London — where the conditions were often far worse than prison, Ginsburg said.
Acquittal by reason of insanity doesn’t allow a person to get away with a crime, Litton said. These defendants are automatically committed to a mental institution.
“The person could wind up being confined, civilly, longer than the person would’ve been in prison,” he said.
Even if Kahler prevails at the U.S. Supreme Court level, that does not mean he would ultimately be found insane by a jury.
Justice Elena Kagan expressed doubt that a jury would find Kahler insane.
“In none of these 46 states, I’m guessing, would your client be found insane,” she said.
Chief Justice John Roberts expressed skepticism based on evidence included in a brief about Kahler’s mental disorder.
“He thrived on self-importance, community prestige and being perceived as having an ideal or perfect marriage,” Roberts summarized. “Now, maybe that’s not the best way to order your life, but if that’s what you mean by insanity, you can understand why that might cause some reservations.”
Schrup argued that Kahler wasn’t given the opportunity to provide additional evidence that would show his moral capacity. She referenced an expert in Kahler’s case who said “short-term dissociation” — a state where people are disconnected from the present — could not be ruled out.
“If you are offline in that way, he couldn’t appreciate right versus wrong,” Schrup said.
The court will rule on Kahler v. Kansas sometime next year. However, Litton said it’s difficult to predict the outcome based on the oral arguments.
“Justices Sotomayor and Stephen Breyer seemed ready to require states to have an insanity defense and Justice Alito seemed inclined to permit Kansas’ approach,” Litton said. “But overall, the outcome seemed unclear.”
Supervising editor is Katherine Reed.