You Plead Insanity, I Plead Insanity, We All Plead Insanity: United States Supreme Court Reviews Whether Lack of an Insanity Defense is Unconstitutional

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Mary Colleen Fowler

Mary Colleen is a 3L at the University of Kansas School of Law. She attended the University of San Diego for her Bachelor’s degree, where she studied Psychology and Marketing. After graduating from law school, Mary Colleen will return to Snell & Wilmer in Phoenix, Arizona, as an Associate. Mary Colleen loves coffee, classic literature, and cacti.

On October 7, 2019, the Supreme Court heard oral arguments about Kansas’s lack of insanity defense, specifically whether it violates the Eighth or Fourteenth Amendment.

In 2009, James Kahler was convicted of capital murder and sentenced to death for fatally shooting four family members.1 At trial, Kahler’s attorneys argued Kahler’s severe depression prevented his ability to form the required intent for capital murder.2 The court rejected the argument based on K.S.A. § 22-3220 and, on appeal, Kahler’s defense challenged the statute’s constitutionality.3

The statute became effective in 1996, whereby Kansas abolished its insanity defense in favor of a mens rea approach.4 Prior to 1996, Kansas followed the M’Naghten rule, which stated:

[T]he defendant is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act. Under the ‘right and wrong’ test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law.5

Under a mens rea approach, courts “allow[] evidence of a mental disease or defect as it bears on the mental element of a crime.”6 In Kansas v. Kahler,7 the Kansas Supreme Court affirmed that the adopted mens rea approach “does not violate the defendant’s right to due process under the United States or Kansas Constitutions.”8 The Supreme Court granted certiorari on March 18, 2019.9

Before the Supreme Court, Sarah Schrup, representing Kahler, rooted her arguments in tradition, arguing “someone who is insane historically would not have been subject to prosecution at all.”10 Justice Alito expressed concern that a general rule which would absolve a criminal defendant with a mental disorder from guilt, “ would result in a ‘revolutionary change’ to criminal law,” creating a defense for an overwhelming number of defendants.11 Kansas argued individuals who intentionally commit a crime are blameworthy even if they do not believe they are wrong and that the insanity defense is not deeply rooted in American tradition.12

The Supreme Court’s ruling will have a significant impact on states’ authority regarding enforcement of state criminal codes and administration of justice. It may also have an effect on what defenses will be available to defendants in the future.

  1. State v. Kahler, 410 P.3d 105, 113–14 (Kan. 2018)
  2. Id. at 114.
  3. Id. at 124.
  4. § 22-3220 (2018).
  5. Kahler, 410 P.3d at 125 (quoting State v. Baker, 819 P.2d 1173 (Kan. 1991)).
  6. Id. at 125.
  7. Id. at 105.
  8. Id. at 125 (quoting Kansas v. Bethel, 66 P.3d 840, 851 (Kan. 2003)).
  9. Kahler v. Kansas, 2019 U.S. LEXIS 1741 (Mar. 18, 2019).
  10. Amy Howe, Argument Analysis: Justices Open New Term with Questions and Concerns about Insanity Defense, SCOTUSblog (Oct. 7, 2019, 3:58 PM),
  11. Id.
  12. Kimberly Strawbridge Robinson, Insanity Defense Baffles Justices in First High Court Argument, Bloomberg Law (Oct. 7, 2019, 2:52 PM),

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