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Liberal Justice Sides with Conservatives and States’ Rights in Criminal Justice Case


Barack Obama‘s handpicked replacement for legendary liberal Supreme Court Justice John Paul Stevens has once again sided with the conservative majority on a hot-button criminal justice issue.

In a 6-3 opinion authored by Justice Elena Kagan, an extremely limited insanity defense in the State of Kansas was deemed to be constitutionally sufficient under the Due Process Clause–which will now result in the petitioner being executed by the state. The ruling is being viewed as a decided setback for criminal justice reform advocates and the rights of criminal defendants.

“Elena Kagan – whose appointment, you may recall, was opposed by many on the left because she was far more conservative than John Paul Stevens [and] had no judicial record – joins (again) with the Court’s right-wing, upholding Kansas’s narrow insanity defense,” commented attorney and The Intercept editor Glenn Greenwald.

Stylized as Kahler v. Kansas, the case concerns a man, James Kahler, who shot and killed four of his family members. Kahler raised the state’s limited insanity defense at trial and during the sentencing phase–while also filing separate pre-trial litigation arguing that Kansas had effectively abolished the insanity defense entirely. His arguments before the Supreme Court were an agglomeration of his various pre-trial, trial and post-trial defenses and theories.

Kagan and the conservatives rejected Kahler’s claim that Kansas had abolished the insanity defense–by eliding it entirely. Instead, the high court ignored that claim and found Kansas’s limited defense was constitutionally firm–essentially because of states’ rights.

The controversial majority opinion notes:

Kahler…asked this Court to decide whether the Due Process Clause requires States to provide an insanity defense that acquits a defendant who could not “distinguish right from wrong” when committing his crime—or, other-wise put, whether that Clause requires States to adopt [a] moral-incapacity test…We granted certiorari and now hold it does not.

“Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing,” Kagan concludes. “It has just not adopted the particular insanity defense Kahler would like. 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.”

“I’m disappointed by Justice Kagan’s opinion in Kahler v. Kansas,” tweeted University of North Carolina Criminal Law Professor and criminal justice reform advocate Carissa Byrne Hessick. “It neglects the important role that courts historically played in pushing back against punitive criminal statutes. Perhaps more disappointing is the analytical sleight of hand about whether [Kansas] abolished insanity.”

“The question presented in this case…was whether states are permitted to abolish the insanity defense,” Hessick continued. “But Kagan doesn’t answer that question. Instead, she answers whether states must retain one of the two M’Naughten tests.”

The M’Naghten tests are the long-established and nearly two-hundred-year-old precedents–arguably the sort of precedent entitled to stare decisis–which form the basis of the insanity defense in Western (Anglo-American) law. The most common version of that test is reproduced in the lengthy and impassioned dissent.

Justice Stephen Breyer notes:

“[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the commit-ting of the act, the party accused was labouring under such a defect of reason, from disease of the mind, [1] as not to know the nature and quality of the act he was doing; or, [2] if he did know it, that he did not know he was doing what was wrong.”

In the mid 1990s, Kansas got rid of the second prong of the M’Naghten test while retaining the first. Kahler, while admitting to the shooting itself, argued–as have many before him–that this equated an abandonment of the time-honored insanity defense as it had always existed in the U.S. court system.

The dissent notes that legal scholars have deemed Kansas’ 1995 legislative rule change as having effectively abolished the defense since at least 1997. The Supreme Court’s Monday opinion largely sidesteps that issue while upholding what was previously widely accepted as Kansas having abolished the defense entirely.

“Under the new provision, a criminal defendant’s mental disease or defect is relevant to his guilt or innocence only insofar as it shows that he lacked the intent defined as an element of the offense, or mens rea” Breyer notes. “If the defendant acted with the required level of intent, then he has no defense based on mental illness.”

The court’s liberals offer a tidy hypothetical explaining Monday’s ruling:

A much-simplified example will help the reader under-stand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. 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’ rule, it can convict the second but not the first.

The conservative majority’s ruling is not simply limited to Kansas’s relatively recent decision to abandon the classic insanity defense.

Kagan herself notes the broad implications of leaving the law in place: “[C]onstitutionalizing the moral-incapacity standard, as Kahler requests, would require striking down not only the five state laws like Kansas’s (as the dissent at times suggests), but 16 others as well (as the dissent eventually concedes is at least possible).”

[image via Fred Schilling/Supreme Court Curator’s Office]

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