Can States Eliminate the Insanity Defense?

A fascinating and important criminal law case to be argued next week on the first day of the new Supreme Court Term.

|The Volokh Conspiracy |

The Supreme Court's new Term will begin next week with a fascinating criminal law case, Kahler v. Kansas, that asks a simple question: Can a state eliminate the insanity defense?  I think Kahler may prove quite important for the field of criminal law, and I wanted to explain why.

Let me start at the beginning.  Specifically, let's start in the first week of 1L year, when most law students are introduced to criminal law.  Crimes, they learn, must include an actus reus—a guilty act.  Crimes must also include mens rea—a guilty mind.  For a crime to occur, the actus reus and mens rea must happen concurrently.  That's been the traditional law of crimes going back to the common law hundreds of years ago.

Around the same time that 1Ls are learning this, they are also learning the modern arrangement that crimes are enacted by legislatures rather than courts.  What is a crime is now up to legislatures, not judges.  And this creates a problem.  The traditional requirements of actus reus and mens rea are common law rules.  Courts announced them hundreds of years ago in a time when courts largely defined what was a crime.  When courts define what is a crime, the courts were saying, they will define them in ways that include a guilty act and guilty mind requirement.

But in the modern world, in which legislatures define what is a crime, the common law rules for what is a crime are no longer obviously binding.  What matters today is the constitutional limits of crime definitions.  In a modern system, legislatures can legislate in the zone of whatever the constitution allows.  So that naturally raises a question: What are the constitutional limits of crime definition?

There is surprisingly little law answering that question.  There is some, but not that much.  That's surprising, I think, because the constitutional limits on crime definition are fundamentally important.  But there's also a reason for the relative absence of caselaw.  Legislatures enact lots of new crimes, but they usually use preexisting tools to get there. And when legislatures enact criminal laws that may on their face seem like significant departures from traditional approaches, courts construe the new laws to reflect traditional common law principles.

That brings us to the new case, Kahler v. Kansas.  The state of Kansas has effectively eliminated the insanity defense.  "Mental disease or defect is a defense to a prosecution under any statute," Kansas law says, only if it negates "the mental state require[ment] as an element of the offense charged." Kan. Stat. Ann. § 22-3220 (2009).  In other words, a defendant is always free to show that his insanity explains his innocence of the crime charged.  But that's the only way insanity can be used. It's not an independent defense.

Here's a hypothetical to see the difference.  Imagine a person suffering from mental illness pushes a victim off a bridge.  The victim falls to his death.  The pusher is then charged with intentionally killing another human being.  At trial, the defendant cannot argue to the jury that he is not guilty by reason of insanity because his mental illness impaired his ability to identify right from wrong or to conform his conduct to the law.  For example, he can't argue that he heard voices telling him to kill the victim that he couldn't ignore.

Instead, the defendant can only argue to the jury that his mental illness is the explanation for why he lacked the intent to kill and is therefore not guilty of an intentional killing.   For example, he could argue that his mental disease meant that he wrongly believed his victim could fly: Because he didn't realize that pushing the victim off the bridge could harm him, he didn't cause the victim's death intentionally.

The facts of Kahler are stark, even though they don't technically matter much to the legal question.  The defendant murdered his estranged wife, his two daughters, and his wife's grandmother.  At trial, he was not permitted to put on evidence that, as a result of mental disease or defect, he was unable to recognize the wrongfulness of his acts or conform his conduct to the law.  He argues that Kansas's repeal of the traditional insanity defense violates both the Due Process clause and the Eighth Amendment's ban on cruel and unusual punishment.

What's interesting to me about the briefing in the case is how much is up for grabs.  You can think of different ways the Court might approach the question.  Consider these four:

(a) Deviation from the Common Law. You might ask if Kansas's effective elimination of the insanity defense is a sharp deviation from common law approaches.

(b) Deviation from Framing Era Understandings.  You might ask if Kansas's approach would have been considered out of bounds under the original public meaning of the Constitution, either at the time of the ratification of the Eighth Amendment (in 1791) or of the Fourteenth Amendment (in 1868).

(c) Deviation from Current Practices.  You might ask if Kansas's approach is a sharp outlier from prevailing trends in state law approaches to the insanity defense.

(d) Deviation from Criminal Law Theory.  You might ask if Kansas's approach is inconsistent with the retributive and deterrent theories of punishment that today are understood to justify punishment and impose limits on the scope of punishment.

Under any of these approaches, or combination of approaches, you then need a theory of how far a deviation from those standards is permitted.  The Court could be pretty deferential, allowing deviations as long as they are not particularly large (which might avoid the need for lots of judicial line-drawing but also limit the Court's role).  Or the Court could be more strict, allowing only small deviations (which would ensure a significant role for the Court but could also require difficult judicial line-drawing).

And whatever approach the Court applies here, its approach presumably will shed light on what other crime and defense definitions are constitutionally required.  Kahler might be a case 1Ls learn not just when they cover the insanity defense but also when they learn about the constitutional limits of crime definition more generally.

The case will be argued next Monday, October 7th, on the first day of the new Supreme Court term.  As always, stay tuned.

 

 

NEXT: Brickbat: Gunning for Them

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  1. I’m fascinated by this from a policy POV. Is the goal to put more insane people in regular prison? Or is the rule (still) that if you’re criminally insane and are found guilty of a crime, you get sent somewhere that’s more or less set up to deal with the criminally insane? Because if a criminally insane person who is found guilty of a crime still ends up in the same place, it might be a distinction without a difference.

    1. I’m guessing it’s to put more mentally impaired people into for-profit prisons.

    2. People who are not guilty by reason of insanity are NOT GUILTY. There was a bit of a movement a while back to switch from “not guilty because insane” to “guilty but insane” because the latter would still place the offender under the state’s custody… just diverting them to medical care rather than criminal incarceration. That meant they could do things like say “yes, you ARE going to take your medication”.

      1. Most notorious guilty but insane case: Ed Gein
        Per Wikipedia:
        On November 21, 1957, Gein was arraigned on one count of first degree murder in Waushara County Court, where he pleaded not guilty by reason of insanity. Gein was diagnosed with schizophrenia and found mentally incompetent, thus unfit for trial. He was sent to the Central State Hospital for the Criminally Insane (now the Dodge Correctional Institution), a maximum-security facility in Waupun, Wisconsin, and later transferred to the Mendota State Hospital in Madison, Wisconsin.
        In 1968, doctors determined Gein was “mentally able to confer with counsel and participate in his defense”. The trial began on November 7, 1968, and lasted one week. …
        At the request of the defense, Gein’s trial was held without a jury, with Judge Robert H. Gollmar presiding. Gein was found guilty by Gollmar on November 14. A second trial dealt with Gein’s sanity; after testimony by doctors for the prosecution and defense, Gollmar ruled Gein “not guilty by reason of insanity” and ordered him committed to Central State Hospital for the Criminally Insane. Gein spent the rest of his life in a mental hospital. …

        In an additional note, Gein was found guilty of one murder (of Bernice Worden), confessed to a second murder (of Mary Hogan), but was not tried for the second murder because multiple prosecutions after a life sentence were seen as a waste of tax payer money in the 1950s and 1960s Wisconsin.

    3. I think it’s a response to common misconceptions that people fake insanity to get out of a conviction.

    4. The goal is: we’re outraged at what the person did and we don’t want some silly, fancy ideas about autonomy stopping us from expressing our outrage and exacting sweet, sweet, punishment.

  2. Catch 22?

    Isn’t asking to be found not guilty because you’re insane, and thereby avoid lengthy incarceration or the death penalty, a sane act? And therefore you can’t employ the insanity defense.

    Catch 22.

    1. Sigh… The question isn’t whether you are sane at the time of the trial (or whether you have effective assistance of counsel), but whether you were criminally insane at the time of the alleged crime.

      1. I wasn’t being completely serious. I just re-watched the movie and it came to mind.

        1. @PeterRR

          I think you have fallen victim to a corollary of Poe’s law

    2. Not necessarily. The question is whether the defendant was insane at the time of the act, not whether he is insane at the time of trial. (The latter might matter for competency, mitigation, and the State’s ability to execute him). For instance a defendant with an undiagnosed mental illness that would prevent him from knowing the wrongfulness of an act could commit a crime and then be diagnosed and medicated while awaiting trial. His decision to use an insanity defense at trial would be sane, but it wouldn’t mean he was sane at the time of the crime: which is what the jury is trying to figure out.

      1. L&O used a variation on this for an episode back in season 6.

        The guy was definitely insane at the time of the crime(s)… but the clever prosecutors move the needle by pointing out that he was diagnosed and on medication, which he decided to stop taking. He was sane when he decided to stop taking the medication, despite a history of attempted homicidal violence prior to his diagnosis. Therefore, depraved indifference murder when he decided to stop medication.

  3. Are there are several places in the post where you wrote “death penalty” in place of “insanity defense” or am I misunderstanding the connection between the two?

    1. Yes. Why would someone object to the repeal of the death penalty, except as evidence of their insanity?

      1. I can think of several reason why (a random) someone might object to the repeal of the death penalty.

        What makes no sense is a defendant, through his attorneys, objecting to the repeal of the death penalty.

    2. I noticed that, too, but I just assumed I was missing something. (My “read” of the post was more like a “skim.” Apologies to Mr. Kerr!)

    3. According to the linked docket, the only question presented is about the insanity defense, and from a quick skim of the internet Kansas still allows the death penalty, so I’m guessing they’re typos.

    4. So sorry — just fixed both typos. (In a capital case, with so many debates about repealing the death penalty in criminal law, I gather my crimlaw brain naturally switched them when writing the post. My apologies for the confusion.)

  4. Haven’t we already largely abandoned mens rea in criminal law? “Ignorance of the law is no excuse” was premised on the law prohibiting malum in se offenses, where anybody with a functioning conscience was assumed to know the act was wrongful even if they weren’t specifically aware there was a statute prohibiting it. But that principle has long since been extended to all manner of malum prohibitum laws where you’d have no way of knowing that an act was illegal unless you’d actually read the law.

    How can you have a guilty mind in regards to an act which isn’t inherently wrongful, and which you didn’t actually know was prohibited?

    IOW, hasn’t this ship already sailed?

    1. Long since, indeed. Leviticus 5:17

      And if a soul sin, and commit any of these things which are forbidden to be done by the commandments of the Lord; though he wist it not, yet is he guilty, and shall bear his iniquity.

    2. Criminal intent, in malum in se crimes, isn’t intent to violate the law. It’s intent to commit the wrongful act.

      “I didn’t know murder was illegal” was never a defense. “I didn’t know that my action would kill her” is a defense (or more precisely, negates an element), even in Kansas.

      1. What Dilan said.

      2. But, “I didn’t know murder was illegal” was never a defense because you were expected to know that murder was wrong regardless of whether you knew it was illegal. So the intent to commit it was intent to commit a wrongful act, regardless of whether you intended to commit an illegal act.

        Contrast this with, for instance, possession of an eagle feather. Strictly a malum prohibitum act, you might intend to possess one, but absent knowledge of the law, it could never be wrongful intent, because there’s nothing inherently wrong with the act, such that a person of normal conscience should know not to do it.

        And yet, ignorance of the law is still no defense.

        That’s my point: The rise of malum prohibitum law while maintaining that ignorance of the law isn’t a defense, means that we have ALREADY abandoned mens rea as necessary to convict.

        1. A malum prohibitum crime CAN be strict liability. But it doesn’t have to be. Many malum prohibitum crimes do have mens rea requirements. And unless the statute were to literally include an ignorance of the law defense, those mens rea requirements are not going to permit such a defense.

          For instance a lot of drug laws criminalize knowing possession of narcotics. That’s malum prohibitum. It’s a defense to such a charge if someone planted drugs on your person and you didn’t know they were there. It is not a defense if you knew you were possessing the narcotic but didn’t know it was illegal to possess.

          1. “A malum prohibitum crime CAN be strict liability. But it doesn’t have to be.”
            It may not be strict liability in name, but as long as the principal of “ignorance of the law is no excuse” is in force for malum prohibitum laws, such laws are effectively strict liability in practice. If you were ignorant of the law, wrongful intent is impossible.

            1. Only if you assume the traditional category of malum in se encompasses all acts that a reasonable person would know to be wrongful.

              But that’s not true. Dumping effluent into a water supply is not a traditional malum in se crime, but that doesn’t mean people who do it don’t know it is wrong whatever its legality.

              1. If an act is, TODAY, something you should know is wrong regardless of your knowledge of the law, it falls into the category of malum in se, regardless of whether it would have been so regarded in an age when the act was not thought wrongful.

                1. So, possession of marijuana in accordance with state laws that permit possession of marijuana is nevertheless criminal because…

        2. It’s not about having “wrongful intent”, what ever that is. The question regarding mens rea is to the actus reus, not the wrongfulness of the actus reus. Knowledge of the possession, not knowledge the possession was illegal.

        3. Consider the problem with considering not believing something is a crime to be a lack of men’s tea.

          Sodomy is probably the clearest example of something that went in our lifetimes from a malum in se crime to something not only considered not wrong at all, but whose opponents are being considered criminals.

          Starting perhaps in the 1969s and 1970s there were people starting to claim they didn’t see anything wrong with it as a defense. Is subjectively believing something the state deems malum in se isn’t wrong, evidence of depravity of mind, or is it evidence of lack of mens rea?.

          Think of the implications of a society where there is more general disagreement about what is and isn’t right. Should only those who feel guilty about what they do be punished? Should those who act with impunity should be treated as they think?

          One of my biggest points is that the rightness or wrongness of things is not nearly as clear as it may appear to our emotions, and may also depend on social context.

          Courts may defer to tradition as a source of authority. But judges shouldn’t consider their own personal opinions, however strongly emotionally felt, as being objectively true or privileged above other peoples’ opinions.

          1. That is, “Malum in se” is a traditional designation. Nothing is Malik in September.

            Whether a gang murders members of another gang and steals their stuff, or a nation inflicts casualties on the enemy and takes spoils in a lawful war, depends on whether the group involved is regarded as a “gang” lacking sovereignty to do things like war, or a “nation” possessing sovereignty. That is, even the lawfulness of things like killing and stealing depend, not on the things in se, but on circumstances and social context.

      3. Quick comparative comment: following the “bad intention” centred ethics of Kant, German criminal law (via Binding’s “The norms and their violation”) does indeed require an intent to violate a law, not just an intent to do something prohibited by a law (the sentences have a subtly different logical structure which makes it a pain to teach an AI the difference) . The workaround is that you are deemed to know the law – after all its published in codes (it was also a pro-codification argument)
        It is possible, but very very difficult, to rebut the assumption of legal knowledge – but could happen if e.g. State fails to publish a new law, or in the time between enactment and publication. (PS: for Binding the specific issue of the Kansas statute would not have arisen though, as he also advocated a even by its time aggressive euthanasia policy, but that’s a different story)

  5. Seems like with the overabundance of possession crimes (guns drugs, etc), we have largely abandoned the mens rea necessity for crimes.

    Seems to me quite correct that mental illness negates the mens rea component of murder and makes it manslaughter or something less. If you are mentally ill and refuse treatment, and such refusal leads to killing, that sounds an awful lot like the extreme recklessness needed for involuntary manslaughter.

    If there is little case law, that sounds like a recipe for a DIG (Dismissal as Improvidently Granted). But if they do issue an opinion, I dont think it bodes well for the defendant or proponents of the insanity defense that a conservative court took this case.

  6. I’m confused. I was reading about the insanity defense, and then got whiplash with the switch to death penalty. Was this a typo? Does the case involve both issues? Either way, maybe the good professor can make it clearer. Thanks.

    1. It was a typo, now fixed. Sorry for the confusion.

  7. “At trial, the defendant cannot argue to the jury that he is not guilty by reason of insanity because his mental illness impaired his ability to identify right from wrong or to conform his conduct to the law. ”

    I guess I can understand why the legislature would want to get rid of this defense; It comes awfully close to defining being a bad person as “mental illness” that absolves you of your wrongful conduct.

    1. No court recognizes pure psyhopathy as insanity. Psychopaths know their actions are wrong.

      It has to be some other disease or defect that leaves you unable to distinguish right and wrong. (The second prong of being unable to conform to the law has been eliminated in many jurisdictions post-Hinckley and was not part of the common law test.)

  8. Does Congress have freedom to construe the extent, if any, to which “high crimes and misdemeanors” requires a showing of mens rea?

    1. Congress can impeach or not impeach on any ground it wishes to. The constitutional text is basically irrelevant because impeachment is a political question.

      1. That’s Gerald Ford’s famous quote, and it is true enough in practice since the Supreme Court has signaled it would decline to review anything short of a violation of a clearly articulated Constitutional limit in this area, but it is too cynical for my tastes. You might as well say that the Constitutional text never matters because the rest of the time it means whatever five Supreme Court justices say it means. There isn’t much precedent or text to guide Senators sitting as a court of impeachment but if it comes to that I think many of them will take their responsibility seriously and won’t ignore what guidance there is.

        1. It’s different, because the Senate is a political tribunal and the Supreme Court is not supposed to be.

          In other words, the important thing the framers did on impeachment was reserve it for the political branches, not set a legal standard. They knew darned well that if the Senate was trying impeachments, the actual standard applied would be political. They weren’t that stupid.

          So the best way to read “high crimes and misdemeanors” is something more like an exhortation- “now don’t you Senators just impeach willy-nilly”- than a legal standard. The framers knew that the House and the Senate would do what they wanted to do, based on politics. Indeed, I suspect that was their intention (again, if it wasn’t, that would mean the framers were complete idiots who didn’t know how legislators act).

    2. “Does Congress have freedom to construe the extent, if any, to which “high crimes and misdemeanors” requires a showing of mens rea?”

      If Congress votes to remove the President via impeachment and conviction, the President is removed. There’s no provision for appeal in the Constitutional text. The limits on Congressional action lie in the subsequent election(s).

  9. I think the OP confuses the issue (well, confuses me) by mixing up the elimination of the affirmative defense of insanity, which is what Kansas has done along with Idaho, Montana, and Utah, with the elimination of mens rea as an element of a crime, which they have not. Kahler will test whether Due Process mandates the availability of an insanity defense (which the Court pointedly did not address in Clark v. Arizona) but I don’t see how it will get anywhere near the question of the constitutional limits of crime definition.

    1. There is a gap there, an ellipsis between the setup and the question. I *think* there’s still something there, but would want to know more about the history of insanity as a defense.

    2. I don’t think he mixes the two. This seems to recognize the distinction you are citing.

      “In other words, a defendant is always free to show that his insanity explains his innocence of the crime charged. But that’s the only way insanity can be used. It’s not an independent defense.”

      And he’s not just talking about the constitutional definition of a crime, but of available defenses as well.

      “And whatever approach the Court applies here, its approach presumably will shed light on what other crime and defense definitions are constitutionally required.”

  10. The insanity defense did not arise until McNaughton’s Case in 1843 in the UK so I do not think “original public meaning of the Constitution, either at the time of the ratification of the Eighth Amendment (in 1791)” should matter.

    I don’t know how widespread it was in 1868 either.

    1. The M’Naghten test was drawn up in 1843 but the defense existed before then with other formulations. E.g. the “wild beast test” of Rex v. Arnold (1724) summarized here.

      1. Yep. M’Naughten summarized the doctrine, but the defense is centuries old.

        1. Bob seems to disagree.

          With history in general.

  11. Kansas? The guy should have based his defense on religion.

    1. They have religion in Kansas? How obscene!

      1. Religion is not obscene (although organized religion often comes close and sometimes qualifies).

        The point is that limitless special privilege for superstition-claiming snowflakes seems relatively popular among the Kansans (the people who remain after generations of bright flight).

        1. It sounds like you read a book, or perhaps just the cover.

          1. Reading a book about clingery seems unnecessary in the context of Kris “Vote Suppressor” Kobach and Sam “Governing For Jesus (By Strangling Social Services)” Brownback.

  12. It seems in recent years as the “science” of psychiatry and it’s cousin psychology have expanded the definitions of mental illness and found chemical treatments for some of the serious ones there has been a tendency to see any heinous crime as the result of mental illness.

    Some very creative lawyers have invented new illnesses, sometimes with success, like affluenza or the Twinkie Defense. Coupled with the unintended consequences of deinstitutionalization of seriously mental ill people who have trouble caring for themselves there is a problem which somehow needs to be addressed.

    Some adjustment seems to be in order.

    1. Don’t confuse anecdotes with data. Very few insanity defenses succeed and most of the ones that do are not based on junk science.

      1. I know that few succeed but sometimes one does. The attempts to enlarge the envelope are ever present. The image in the public mind continues to grow.

        1. I dunno if this slope is that slippery. If anything, it looks like the defense is getting narrower over time.

          1. Yep. The high water mark for the defense was 1981. Since then, we’ve seen the narrowing of the defense by eliminating the volitional component, the institution of “guilty but mentally ill”, and now what Kansas has done.

    2. “The facts of Kahler are stark, even though they don’t technically matter much to the legal question. The defendant murdered his estranged wife, his two daughters, and his wife’s grandmother.”

      Have you never read one of Justice Thomas’ opinions in a murder case, particularly when he is dissenting against a majority that rules in favor of the criminal defendant? The first 5 or so pages read like a graphic crime novel as he attempts to really drive-home to the reader the heinous nature of the criminal act (see e.g. his dissent in Mississippi v. Flowers). Given the time he devotes to the facts and the way he frames them, I find it hard to believe they are not present when he confronts the legal question.

      1. I know Thomas is particularly vivid, but this practice pre-dates him by a long time. If you read many SCOTUS criminal opinions, going back decades, the opinion that sides with the government (majority or dissent) always contains a much more vivid description of the facts of the crime than the opinion that sides with the defendant. (And if there was police misconduct involved, the converse is true too- the opinion siding with the defense will go into great detail about it, whereas the opinion siding with the government will characterize it in more generic terms.)

  13. I’m unclear on why the federal government gets a say on whether the states dispense with specific defenses in purely state-law crimes, so long as the state government that rewrites the statute(s) is of a republican nature. Article I, Section 10 lists powers prohibited to the states. “abolishing defenses to criminal statutes” isn’t listed.

    1. Are you actually unclear? It’s not based on Article I Section 10 but the restrictions on states created through later Constitutional Amendments.

      1. “Are you actually unclear?”

        Were the words “I’m unclear” somehow ambiguous to you?

        1. You may find a perusal of the fourteenth amendment to the constitution instructive, then.

          1. It doesn’t seem to say anything about guaranteeing a right to be insane, unless that’s one of the privileges and immunities of being a citizen of the United States.

    2. I’m unclear on why the federal government gets a say on whether the states dispense with specific defenses in purely state-law crimes, so long as the state government that rewrites the statute(s) is of a republican nature. Article I, Section 10 lists powers prohibited to the states. “abolishing defenses to criminal statutes” isn’t listed.

      Because various constitutional amendments place restrictions on state conduct beyond the Article 1 Section 10 limits on state power.

      1. Which one protects the individual right to insanity?

        1. I guess we’ll find out, soon enough.¹ The petitioner cites the 8th and 14th amendments.

          ¹Assuming, that is, you meant the right to use an insanity defense rather than a “right to insanity.”

          1. A “right” you can’t use isn’t a right.

  14. Am I reading correctly that the state allows diminished capacity but denies traditional NGRI? That’s somewhat surprising given the strong trend towards the opposite.

  15. The way in which the legal question has “evolved” throughout the procedural history is interesting and I would think the death penalty will work its way into at least one opinion from the justices.

    In its decision the Kansas Supreme Court examines the constitutionality of the Kansas Statute (modifying the insanity defense) in the context of a due process violation. The Court writes, “Kahler argues that by doing so [referring to Kansas adopting a mens rea approach] the statute violates the Due Process Clause because it offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked fundamental.” Citing the state Supreme Court’s prior decision in Bethel, the Court writes,”Ultimately, the Bethel court concluded that K.S.A. 22-3220 does not violate the defendant’s right to due process under the United States or Kansas Constitutions.” In a subsequent part of the opinion, titled “Eighth Amendment Categorical Challenge to the Death Penalty,” the Court begins with, “Kahler claims that a sentence of death violates that constitutional right when it is imposed upon a severely mentally ill person.” The analysis that follows examines, and ultimately denies, whether there is (or ought to be) a categorical rule prohibiting the death penalty for offenders who were severely mentally ill at the time of their crimes.

    The Supreme Court’s “question presented” is, “Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity
    defense?” (Kansas is not happy with that framing of the question). Kahler’s petition to the Supreme Court appears to have dropped the Eighth Amendment/Death Penalty argument and moved the Eighth Amendment into the due process argument as it relates to Kansas’s modification of the insanity defense. I find this all relevant because it may be a point of contention in the opinions, with some justices focusing on the modification of the insanity defense and others (likely the more liberal justices) taking issue with the death penalty being applied to those who would, but for the change in the rule, be sparred(?). The dissent from denial of cert in Delling v. Idaho, authored by Breyer, Ginsburg and Sotomayor, indicates that they are likely to find Kansas’s statutory language in violation of the Due Process Clause. They may also claim that the Eighth Amendment prohibits the application of the death penalty in light of the states’ statute. Thomas, Roberts, and Alito all joined Souter’s opinion in Clark v. Arizona, which I read as quite deferential to the state’s ability to alter the insanity defense. Kagan seems like a pretty safe bet to side with Breyer, Ginsburg, and Sotomayor … leaving Kavaugh and Gorsuch. It will be interesting to see if one of the more conservative justices uses the cases as a means to opine on the original public meaning of the Eighth Amendment, the issue of insanity, and the death penalty.

    Oh the tea leaves!

  16. Berkeley? What happened to USC? Is anyone ever going to inform Wikipedia?

    A sensible conservative(ish) voice at Berkeley should be great for students, the institution, and the law. I also hope it is good for Prof. Kerr. But if this move was designed to make beer deliveries easier it was severely misguided.

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