On March 23, 2020, while the average American pointed fingers over the spread of COVID-19 and reassessed his or her own mortality, a sequestered U.S. Supreme Court quietly released four opinions. In keeping with the times and deviating from tradition, the opinions appeared only online rather than being first announced ceremoniously in a robed ritual.
One opinion, Kahler v. Kansas – a tale of murder, conviction and death sentence – offers us a deep, philosophical read while we shelter at home.
The quadruple familia homicides involved no whodunit mystery. Over a Thanksgiving weekend, Kraig Kahler, 45, shot and killed his estranged wife, 44, two of their three children, ages 16 and 18, and his wife’s 89-year-old grandmother. Newspaper reports of the trial paint a woebegone tale involving the wife’s same-sex partner, a depressed husband, physical abuse, a marriage separation, side-taking, and the husband’s loss of a job, all culminating in a botched Shakespearian tragedy devoid of humor or hero.
In the sentencing phase of the trial, the defense attorney told the jury: “In this state, we don’t kill the mentally ill.” The jury deliberated 55 minutes before recommending the death penalty.
The Legal Question
The Court’s opinion naturally gives short shrift to such detail and depravity. Instead, as is its proper role, the High Court examined questions of law.
The Court took up a single question: “whether the Constitution’s Due Process Clause … compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime.” Sound easy?
The Law in Most States (but not Alaska, Idaho, Kansas, Montana, and Utah)
For most of our country’s history, all states followed the two-prong M’Naghten’s Rule from Great Britain, which exonerates a criminal defendant if his illness either prevented him from (1) recognizing his criminal acts were morally wrong – the “moral incapacity test” or (2) having the requisite mens rea (intent) for a crime – the “cognitive incapacity test.”
In 1995, Kansas eliminated the moral incapacity prong, thus restricting the insanity defense to cognitive incapacity. If convicted, the defendant could argue moral incapacity as a mitigating factor in the sentencing phase.
Before and after trial, Kahler’s lawyers unsuccessfully argued the U.S. Constitution’s 14th Amendment mandated the moral incapacity test be allowed as part of an insanity defense. After again losing at the Kansas Supreme Court, the convicted murderer filed a petition for writ of certiorari with the U.S. Supreme Court.
The Diaphanous Difference
Distinguishing moral and cognitive incapacities, Justice Kagan presents an example of the murderer who acts on “an insane delusion that God had ordained the sacrifice.” Under the M’Naghten Rule, the defendant has absolute immunity because though knew what he was doing, he could not tell right from wrong. Not so in Kansas since the delusional defendant had the intent to commit a crime.
Justice Breyer proffers a head-scratching elucidation: “In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’s rule, it can convict the second but not the first.”
The U.S. Supreme Court’s Ruling
In the 6-3 ruling, perceived-liberal Justice Kagan again joins the five conservatives and authors the opinion, holding for the State of Kansas that the Due Process Clause does not require a State recognize the moral incapacity test. Kagan observed that a violation of due process would occur only if a state rule “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Kagan eloquently and succinctly describes the limitations of Constitutional law: “Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law.”
In an easy-to-skim-past footnote, the Court left open the unargued question whether the Eighth Amendment (prohibition of cruel and unusual punishments) might compel a state to offer the moral incapacity defense.
Breyer’s dissent, joined by Justices Sotomayor and Ginsburg, points to “[s]even hundred years of Anglo-Saxon legal history” and “basic principles long inherent in the nature of criminal law” to conclude Kansas “eliminated the core of a defense” that is a fundamental right protected by the Due Process Clause.
Many Mississippians learned of the M’Naghten Rule from John Grisham’s first work of fiction – a self-published novel entitled A Time to Kill. Young, solo-practitioner Jake Brigance (played by Matthew McConaughey in the movie) leaned heavily on a M’Naghten defense and the legal research of Ole Miss law student Ellen Roark (played by Sandra Bullock). Grisham allegedly named the book after the tedious days he spent as a state legislator at the Mississippi Capitol.
The opinion doesn’t cite A Time to Kill, but Breyer points to a Mississippi Supreme Court decision from 1931 finding unconstitutional a state legislative intent (pre-Grisham) to completely abolish the defense of insanity. That case does not purport to address a legislative attempt to merely eliminate one of the two components of the traditional insanity defense.
Readers longing for a Supreme Court that rights all perceived wrongs suffer another setback. This Court recognizes its limited role in democracy and gives deference to co-equal branches and the sovereign States.
While courts and legislatures may change the law, one aphorism I learned in law school has stood the test of time: Honesty may be the best policy, but insanity is a better defense.
BEN WILLIAMS, the author, is a Mississippi attorney. Email Ben at Ben2020MS@gmail.com. FORD WILLIAMS, the artist, is a senior at Savannah College of Art & Design (SCAD) in Georgia.
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