Insanity and the Supreme Court

James Kraig Kahler intentionally shot and killed his wife, their two teenage daughters and Mrs. Kahler’s grandmother in 2009. Now he’s going to the Supreme Court. At his Kansas trial, the defense psychiatrist testified that Mr. Kahler had lost touch with reality due to a serious mental disorder. But the defendant couldn’t offer an insanity defense, because Kansas passed a law abolishing it in 1995.

Some form of an insanity defense has been part of English law since the late Middle Ages. It was recognized in every jurisdiction in the U.S. until the last decades of the 20th century, when Kansas and three other states (Idaho, Montana and Utah) abolished it. In Kahler v. Kansas, the justices should hold that defendants have a constitutional right to claim insanity.

The court is rightly wary of imposing constitutional requirements on how states define crimes and defenses. But it has often recognized that fundamental principles of Anglo-American law are necessary for due process. The Constitution, for instance, doesn’t explicitly mention the criminal standard of guilt “beyond a reasonable doubt.”

Defendant James Kraig Kahler. Photo: Thad Allton/Associated Press

Most insanity defenses fail, but it’s unfair to convict someone who can establish that he was insane when he committed a crime. Kansas does allow evidence of mental disorder to cast doubt on whether the defendant formed a “guilty” mental state. But mental disorders seldom prevent people from being aware of what they are doing, forming an intent to do it and carrying out their intentions. Rather, a psychotic mental disorder typically gives them deeply irrational reasons for forming those intentions.

The test of insanity in such cases typically asks whether the defendant was able to know or appreciate why the conduct was wrong. Because Kansas doesn’t give a defendant a chance to show that mental illness gave him “insane” reasons for his conduct, Kahler’s trial was fundamentally unfair.

Some critics of the insanity defense argue that the defendant’s mental illness should be taken into account in determining the sentence rather than guilt. But a lenient sentence doesn’t justify a wrongful conviction. What’s more, judges may not mitigate sentences—or may even increase them—because they consider the defendant to be dangerous.

Yet there’s no reason to fear that if defendants are acquitted by reason of insanity, they will go necessarily go free and be a danger to the community. In every jurisdiction, legally insane defendants are placed in secure nonpenal facilities for treatment and may be kept in custody or under community supervision until they persuade a court that they no longer pose a danger to society.

There is no acceptable alternative to the insanity defense. It alone provides justice to defendants who were severely disordered at the time of the crime, weren’t responsible for it, and therefore don’t deserve blame and punishment.

Mr. Kahler may ultimately be convicted even if the justices order a new trial and he offers an insanity defense. But all defendants should have a fair chance to establish that they were not responsible by reason of insanity.

Messrs. Morse and Bonnie are law professors at the Universities of Pennsylvania and Virginia, respectively. They filed a friend-of-the-court brief on behalf of 290 law professors in Kahler v. Kansas.

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