Due Process and the Criminal Law: A Few Thoughts on Kahler v. Kansas

An important Supreme Court decision on how much criminal law doctrine is constitutionally required.


The Supreme Court has handed down Kahler v. Kansas, the case I blogged about before about whether a state legislature can effectively abolish the insanity defense. As I wrote last time, Kahler is a case about a fundamental question of criminal law: What are the constitutional limits of crime definition?  In a 6-3 ruling by Justice Kagan, joined by the Court's conservatives, the Court ruled that the Kansas law is constitutional. The gist of the Court's answer to that fundamental question is that there is a constitutional floor of state crime definition but that it's a very modest one.

I'll first explain the Court's reasoning, and then I'll offer some thoughts of my own on it.

I.  The Court's Reasoning

Here's the key passage that frames the Court's approach:

[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." Leland v. Oregon, 343 U. S. 790, 798 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is "historical practice." Montana v. Egelhoff, 518 U. S. 37, 43 (1996) (plurality opinion). And in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g., id., at 44–45; Patterson v. New York, 432 U. S. 197, 202 (1977). The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. See, e.g., Clark, 548 U. S., at 752 ("[T]he conceptualization of criminal offenses" is mostly left to the States).

Under this standard, you look to the common law treatises and authorities and ask whether a particular legal rule is so "old and venerable — so entrenched in the central values of our legal system—as to prevent a State from ever choosing another."

Of course, the trick in applying that kind of standard is how much clarity and specificity is required before you say a particular rule is "entrenched." For example, the authorities may all agree that there is a particular doctrine, but they may disagree on the specifics of what the doctrine is. What then?

As I read the majority's opinion, the analysis effectively calls for two steps.  First, at the level of "broad principle," was the general doctrine historically established?  And second, is the specific rule challenged as unconstitutional within or outside the range of possible examples of that broad principle?

In Kahler, the Court agrees with the defendant on the first step.  According to the Court, it is indeed historically established at common law that there was a "broad principle" that there is some kind of insanity defense,  "[F]or hundreds of years," the Court agreed, "jurists and judges have recognized insanity (however defined) as relieving responsibility for a crime."  Citations to Blackstone, Coke, and others then follow.

The problem comes with the second step.  According to the Court, Kansas's approach to insanity isn't out of bounds.  It fits within the broad principle established.  That's true for two reasons, the Court says.  First, Kansas has a type of insanity defense: The defense can put on evidence of mental illness to show that he lacked an element of the crime.  Second, Kansas law considers the principles of the insanity defense at the sentencing stage instead of at the crime definition stage.  Under Kansas law, defendants can offer evidence of mental illness to argue for a lesser sentence, and judges have the discretion to replace a prison term with a period of commitment in a mental health facility.

In the majority's view, Kansas's legislative scheme is enough to satisfy the general principle of having some kind of insanity defense.  It's enough because no one specific insanity rule was "so rooted in the traditions and conscience of our people as to be ranked as fundamental." The common law materials and later authorities have all agreed that there should be some way to deal with severe mental illness and criminal liability, but there isn't enough clarity about any one rule or specific principle to make that rule fundamental so as to prevent a state legislature from experimenting with a different rule.

Justice Breyer's dissent accepts the basic premise the of the majority's approach but argues that it has been misapplied.  According to Justice Breyer, there is a clear enough insanity defense rule according to the common law authorities. As Justice Breyer reads the history, the history establishes that defendants cannot be held criminally liable if, due to mental illness, they lacked the mental capacity necessary for their conduct to be considered morally blameworthy.

II.   A Few Thoughts on the Decision

First,  I think the majority's basic framework seems sensible.  The basic principles of the common law must be respected, but legislatures have a lot of discretion to implement those principles as they see fit.  Under this approach, the Court retains a modest role policing the boundaries but state criminal law remains a subject fundamentally up to state legislatures.  This seems about right to me.  (Although I recognize that others will not see things that way: The Court's deferential approach appeals to me as a longtime judicial-restraint fan, but I realize others prefer a more aggressive judicial role.)

Second, I was only half-persuaded by how the Court applied its approach.  The underwhelming half of the Court's argument was its idea that Kansas retains an insanity defense because defendants can put on evidence of mental illness to show lack of mens rea.  That's not an insanity defense: It's just not having special rules of offense when a defendant suffers from mental illness.

To call that an insanity defense strikes me as odd. Imagine a defendant is charged with failure to obey a police officer's order.  His defense is that he is deaf and did not hear the order.  Under ordinarily rules of criminal law, the defense is permitted to put on evidence that he is deaf and didn't hear the order.  But we wouldn't say that the law enacts a "deafness defense." Instead, we would see that as just the ordinary rules of liability.  The government has to prove the elements of the crime beyond a reasonable doubt, and that's true whether the evidence for or against those elements existing happens to involve mental health evidence (in Kahler) or evidence of deafness (in this example).

I was more persuaded by the second reason the Court offers, that the Kansas scheme allows evidence of mental illness to be used at sentencing.  Based on my quick review of the statute, Kansas normally has discretionary sentencing: the non-exclusive list of mitigating factors a sentencing judge can consider includes whether "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed."  And it does give sentencing judges some discretion to commit defendants to mental health facilities "in lieu of confinement or imprisonment."

I don't have a particular view of whether the Court was ultimately right or wrong to uphold the Kansas law.  I haven't looked closely at the history myself, and both sides agreed that the ultimate question was the clarity of the historical materials. But I was a lot more persuaded by the Court's second reason that the Kansas approach was sufficient than I was by its first reason.

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  1. I am glad you pointed out that they did in fact effectively abolish the insanity defense in Kansas. A fair portion of the majority opinion seemed to be trying to pretend Kansas didn’t.

  2. Their first reason isn’t just odd, is simply false. The insanity defense, as the phrase is used, is an affirmative defense. The very nature of an affirmative defense is admitting that ALL the elements are met but it doesn’t merit punishment because xyz. As Kansas is using it, as you rightly point out, is simply saying it can be used as evidence to show that an element isn’t met. That isn’t an insanity defense that is a garden variety defense.

    Personally I disagree with both opinions on the initial step, that it is so rooted as to be fundamental. Particularly when a change is somewhat based in morality it can’t be a one way racquet where you can only get more lenient. And basic logic would indicate that just because we have all decided that something is the more prudent action, doesn’t mean that a different one lacks in fundamental fairness. Further basic sentencing law has always recognized several reasons for punishment, now known as the 3553(a) factors. Two of them apply even if mental illness caused it: incapacitation and rehabilitation. I don’t think it violates fundamental rights to suggest that if these factors are implicated by an act, then someone can be found criminally liable for said act.

    That, of course, does not mean they must. And personally I think Kansas goes too far in limiting the defense. But I don’t think it violates the fundamental rights of someone to believe otherwise.

  3. “does give sentencing judges some discretion to commit defendants to mental health facilities “in lieu of confinement or imprisonment.””

    There is also the Hinkley matter — what if the defendant is then “cured”?

  4. Dr Ed,
    Ed Gein – yes that Ed Gein – claimed to have been cured. His doctors backed up this claim with the proviso that his sanity was fragile and subject to stress induced relapse. Ed filed for release, but the WI courts denied it because they accepted the doctor’s proviso and could not see any way Ed could be released without the PR causing extreme stress.

  5. I agree that it is misleading to call the “diminished capacity” defense that Kansas allows a mental health defense but I think we crossed that bridge when the Court allowed its abolition in Clark v. Arizona. That case seemed to be a pretty clear violation of In re Winship to me but the Court essentially treated an explanation that the defendant did not commit all elements of an offense because his mental illness precluded the possibility was a mental health defense that could be disallowed. This case is just the other side of the coin. If it is a type of mental health defense that can be disallowed, it also a type of mental health defense that can be allowed

  6. “As Justice Breyer reads the history, the history establishes that defendants cannot be held criminally liable if, due to mental illness, they lacked the mental capacity necessary for their conduct to be considered morally blameworthy.”

    Personally, I disagree with Justice Breyer here.

    That a given defendant lacked the mental capacity necessary for their conduct to be considered morally blameworthy isn’t a guilt / innocence ‘did he do it’ issue, it’s a sentencing / how should the defendant be punished issue.

    1. The case seems simple to me — but then, I’m not a lawyer, just a simple Kansan. The Kansas law exchanges “innocent because he’s insane” for “Guilty, but insane.” All the fuss about calling it an insanity “defense” vs it being an insanity “adjustment of sentencing” seems a classic lawyerly much ado about nothing.

      For the accused, both result in involuntary commitment to treatment with the court deciding when or if the person gets out.
      The Kansas law doesn’t seem to offer a huge structural change. If it provided that the accused be sentenced to prison, but diverted to treatment until “cured” before finishing their sentence then sure, that would be a huge change. But, as written it seems to result in exactly the same outcome, treatment instead of prison at the court’s disgression.

      Indeed, it would seem that even in the context of the procedures in court the process would be essentially the same. The prosecution asserts that the accused did this thing. The accused lawyers reply that “Yes, but he’s nuts.” The court decides if he’s nuts or not and he either goes to prison or treatment.

      Therefore the Supreme court’s decision seems to be in keeping with simple reality… that this changes little. Did I miss something?

      1. Wasn’t this a death penalty case?

        1. Yes. So? One system he’s judged innocent by reason of insanity, or not and he goes into treatment or dies. Other system he’s judged guilty but insane or not and he goes into treatment or he dies. Functionally equivalent.

      2. The suggestion that Judges can consider mental health in sentencing is a far cry from actually having them do so. Once a defendant has been found guilty of a crime, the impetus is to punish them not commit them. It’s nice in theory but I’m skeptical it works as a functional equivalent in practice.

  7. The interesting thing about Kagan’s holding is that it suggests that a certain level of epistemic uncertainty is necessary in the law. It’s not so much that the law isn’t developed enough in the area in a positivist sense, but that positivism itself is qualitatively different from evolving standards of decency, the dynamic aspect of which is not an incompleteness, but an inherent quality.

    NB, it upholds a sentence of death, so it’s a profound mistake. But a useful and interesting one.

    Mr. D.

  8. I agree with breyer’s reading for a change (not having done my Owen deep dive into the historical materials). The common law authorities generally refer to moral capacity and, in many of the cases, it was indisputable that the defendant had the mens era Breyer also contends that mens res had a different meaning during that era, one which incorporated moral blameworthiness.

    A wrinkle for his argument though is the fact that Kansas allows consideration of these factors at sentencing such that a Kansan defendant who asserts an insanity mitigation at sentencing can accrue the same sentencing outcome/conditions as a similarly situated defendant in another state who asserts this defense at the guilt phase. Breyer claims that the insanity defense traditionally occurred at the guilt phase due to the collateral consequences of being found criminally guilty. Not sure I buy this.

    professor Kerr is correct that the majority isn’t straight forward about the fact that they abolished the insanity defense, Breyer somehow thinks he could issue his ruling without overruling Arizona v Clark. One shouldn’t mangle precedent in an effort to make a show of one’s fealty to stare decisive

  9. Putting aside the merits of the pure legal question, this just seems like the worst possible set of facts to use as a basis for bringing the challenge in the first place. As far as I can tell, there’s really nothing in the record to suggest that mental illness was at work here, and plenty to suggest that it was a deliberate killing. If that is indeed the case, then I think it makes it a little easier to come out in the state’s favor. Even if the defense had to be kept intact, Kahler wouldn’t have been able to use it successfully anyway, so why not just go the distance and do it away with it completely. The outcome is the same in his case.

    Also, there is somewhat of a twist in the facts because one of the victims, the wife, might be characterized as belonging to a minority group. That potentially garners sympathy from some of the left-leaning Justices that otherwise wouldn’t be present. By the same token, the murder could arguably be considered a hate crime.

  10. I think this case raised two constitutional questions: (1) whether a state may abolish insanity as a separate affirmative defense (2) whether a state may craft a test for insanity that asks merely whether the defendant was cognitively incapacitated.

    With respect to the second issue, this is what Petitioner’s brief focused almost entirely on. That’s frustrating, because the Court likely already settled this issue in Clark v. Arizona, where the Court stated categorically that due process doesn’t require States to adopt a particular test for legal insanity. So the most surprising part about Kagan’s opinion was how it focused almost entirely on this issue.

    With respect to the second issue, I think that’s the only issue that Clark left out in the open.If you look at the opinion in Clark, they explicitly reserve the question about whether due process requires an affirmative insanity defense. What’s interesting is that the Court attached this footnote to a sentence that cited the very statute at issue in this case.

    If you consider that issue – whether due process mandates an affirmative insanity defense – I think Petitioner’s argument unravels quickly for various reasons. For one, procedural due process is all about asking whether the State’s rule is impermissibly unfair to the defendant at trial. So long as you start with this assumption, it makes no sense to say that a State can change something like insanity from an affirmative defense to, as Kansas has done, a negative or failure-of-proof defense. First, if a state recognizes something as an affirmative defense, then the State can put the burden of proof on the defendant. Moreover, the State can set the standard of proof at it’s highest: beyond a reasonable doubt. But when Kansas made insanity a legal fact that negates mens rea rather than a fact that excuses criminal responsibility, Kansas essentially assumed the burden of affirmatively proving the defendant’s insanity. Furthermore, the standard of proof was at its highest for the state – beyond a reasonable doubt – and the state couldn’t change that standard.

    Once you look at it this way, it makes no sense to say that due process required Kansas to adopt an affirmative insanity defense rather than treat insanity as a garden-variety failure-of-proof defense. The latter arguably puts the defendant in a better position than the former.

    I think that’s why Kahler’s brief put almost no emphasis on arguing that an affirmative insanity defense is a deeply rooted principle of justice. Kahler makes scattered references to the affirmative insanity defense being deeply rooted, but the thrust of his argument is focused towards the substantive issue of whether Kansas must adopt an insanity test that looks at moral incapacity.

    1. *Kansas essentially assumed the burden of affirmatively proving the defendant’s []sanity

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