Bloomberg Law
March 23, 2020, 2:23 PMUpdated: March 23, 2020, 9:09 PM

Insanity Defense Claims Curbed by High Court in Murder Case (2)

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson
Jordan S. Rubin
Jordan S. Rubin

The U.S. Supreme Court on Monday brushed back a Kansas inmate’s attempt to mount an insanity defense as he saw fit, and in the process potentially limited criminal defendants’ claims in other states, too.

The U.S. Constitution doesn’t require a state to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong, Justice Elena Kagan wrote for a 6-3 majority.

Justice Stephen Breyer dissented from the rejection of James Kahler’s due process argument, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Kahler faces the death penalty for the 2009 slaying of his estranged wife, her grandmother, and his two teenage daughters. He claims he “snapped” after his divorce, the loss of his job, and his wife’s ongoing relationship with a female trainer.

Before trial, Kahler argued that he should’ve been able to mount a “moral incapacity” defense. The trial court rejected his argument and he was convicted and sentenced to death. The Kansas Supreme Court ruled against him too.

In affirming that state court decision, the justices may have also dashed the hopes of other defendants trying to raise similar defenses in Kansas and in other states with comparable laws or rules. Alaska, Idaho, Montana, and Utah “similarly exonerate a mentally ill defendant only when he cannot understand the nature of his actions and so cannot form the requisite mens rea,” Kagan wrote, using the Latin term for a guilty mind.

Kahler’s lawyer, Sarah Schrup, the founder and director of Northwestern Law School’s Appellate Advocacy Center, said they’re “disappointed by the decision, particularly because this is a capital case.” But, she said, it’s “difficult to predict the broader implications of the decision” because the court was only construing Kansas law.

On the other hand, upending the status quo would have had far-reaching consequences, according to Kagan’s opinion.

Accepting Kahler’s argument—that is, requiring a moral incapacity standard—would have required striking down laws in more than 20 states including Kansas, the justice wrote.

Joining in Kagan’s opinion were all five Republican-appointees: Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

Kansas formerly had a broader insanity defense. But under current state law, defendants can only use their mental disease or defect at trial to show that they lacked the culpable mental state required as an element of the crime charged.

The state doesn’t allow a moral incapacity defense, which would ask whether a defendant’s mental illness left him unable to distinguish right from wrong with respect to his criminal conduct.

By siding with Kansas, the majority condoned a state scheme that the National Association of Criminal Defense Lawyers said in a friend-of-the-court brief runs afoul “of the deep-rooted principle in the American criminal justice system that criminal punishment should be visited only on the morally culpable.”

It’s the latest high court win for the state that has three cases before the justices this term. Kansas won an immigration-related case earlier this month. A ruling in the third case, involving the Fourth Amendment, is still pending.

The state didn’t immediately respond to a request for comment on the ruling. The Justice Department, which sided with Kansas, declined comment.

Defendants Can Still Argue Insanity—Sort of

When the justices initially agreed to hear Kahler’s case, they said they would decide whether states generally can abolish the insanity defense.

However, at least in theory, they decided the case more narrowly, concluding only that Kansas’ scheme doesn’t abolish the defense.

The state has an insanity defense, just not the kind Kahler wants, the majority ruled.

Kansas defendants can use mental illness to show that it prevented them from forming the requisite criminal intent, and defendants can offer mental health evidence at sentencing in the hopes of mitigation, Kagan wrote.

Also, judges can send convicted defendants to mental health facilities instead of prison. “In that way,” Kagan wrote, “a defendant in Kansas lacking, say, moral capacity may wind up in the same kind of institution as a like defendant in a State that would bar his conviction.”

But at least one criminal law expert doesn’t think it’s accurate to say that Kansas didn’t abolish the insanity defense.

“All they have are mitigating sentencing factors and a statute that adds nothing to what the defendant already would be able to do about proving intent,” said the University of North Carolina School of Law’s Carissa Byrne Hessick. Prosecutors already need to prove that defendants acted with criminal intent, she pointed out.

“Whatever Kansas has,” Hessick said, “it’s not an insanity defense.”

The majority ruled that Kahler’s due process claim couldn’t clear the “high bar” required to show a constitutional violation. “Under well-settled precedent,” Kagan wrote, “a state rule about criminal liability—laying out either the elements of or the defenses to a crime—violates due process only if it ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”

In dissent, Breyer retorted that Kansas “has not simply redefined the insanity defense.”

Rather, the justice wrote for himself, Ginsburg, and Sotomayor, “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.”

The state’s argument that “the insane, provided they are capable of intentional action, are culpable and should be held liable for their antisocial conduct,” Breyer wrote, “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.

The case is Kahler v. Kansas, U.S., No. 18-6135, affirmed 3/23/20.

(Adds comment from Schrup, Hessick, no immediate comment from Kansas, denial of comment from DOJ. Previous update added detail from opinion, background. )

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at; Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at; John Crawley at; Andrew Harris at