(I am pleased to present a guest post by Karan Gupta, an advocate practising in Delhi.)
Since the mid-1800s, the M’Naghten Rule (insanity defence) has been employed to exonerate defendants on criminal trial. In Kahler v Kansas, the question concerned whether the Due Process clause of the American Constitution requires States to allow a defendant to raise the defence of insanity that they could not “distinguish right from wrong”. The Supreme Court of Kansas rejected the challenge. On 24 March 2020, the Supreme Court of the United States (SCOTUS) rejected, by a 6-3 majority, Kahler’s appeal and held that the Due Process clause imposes no such requirement.
Facts
In 2009, following his divorce, Kahler shot and killed his wife, her grandmother and his two daughters. He surrendered the following day. He was convicted of capital murder and sentenced to death. At trial, the counsel for defence contended that Kahler had a mixed obsessive-compulsive, narcissistic, and histrionic personality and that he ‘snapped’. The state expert affirmed that he was mentally ill but had the ability to form intention. The defence was rejected on the ground that no moral capacity defence existed under Kansas law.
The SCOTUS Appeal
The majority and the dissent agreed that the M’Naghten rule stipulates two enquiries – first, whether the defendant knew the nature and quality of the act i.e. whether the defendant understood the action (cognitive capacity); or second, whether the defendant could differentiate between right and wrong (moral capacity). [p. 19, D2] These would allow the exoneration of both a mentally ill defendant who shoots an individual thinking they are a dog or cuts a person’s neck thinking it is a loaf of bread as well as someone who knowingly shoots a person under the belief that a dog ordered the kill. Prior to 1995, Kansas allowed both defences. However, by virtue of the 1995 amendment, the moral capacity defence was abolished. As the person in the second scenario understood the action, the intention to kill stands established and the person would not be exonerated. Four other states have laws similar to Kansas – Alaska, Idaho, Montana and Utah.
The SCOTUS has previously laid down that a state criminal law violates the Due Process clause only when it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In such determination, the Court turns to eminent common law authorities, precedent and “basic values that underlie” society. Kahler contended that the M’Naghten rule (and specifically the moral capacity test) fell within this ambit and Kansas had “unconstitutionally abolished the insanity defense.” [p. 5]
Justice Kagan (writing for the majority) agreed with Kahler that for “hundreds of years” jurists and judges have recognized the broad defense of insanity and there is no “single case to the contrary.” [p. 11]. The majority however held that Kansas’ law does not depart from that broad principle and does not fail to “offer any insanity defense at all” [p. 12] for two reasons:
First, Kansas’ law provides that the lack of the culpable mental state required for the crime as a result of mental disease or defect shall be a “defense to a prosecution”. Kahler could simply prove that he had no intention to kill. Second, while moral capacity is disregarded at the guilt-determination phase, it is a factor at the sentencing stage to mitigate culpability.
Critique
The first reason, far from highlighting a version of the insanity defence, merely reaffirms a basic tenet of criminal law—the prosecution must prove beyond reasonable doubt the existence of a mental element (intent) for crimes that require it. This would aid a person who mistakenly fires a gun but it would not aid a mentally ill person who intentionally fires the gun under the belief that unless he killed the person, the world would end. The second reason overlooks insanity an independent affirmative defence to prosecution itself. What appears to have persuaded the majority is that sentencing mitigation could lead to the same situation as in a state that allowed the moral capacity defence. [p. 4, 5] However, the moral capacity defence extends to every successful defendant the right to not be found guilty in the first place.
While the majority affirms the broad insanity defence, the question was whether the specific moral capacity test commanded such acceptance. The majority held that Kahler could not show “settled consensus” and consequently, as “the record is far more complicated”, such a “motley sort of history” cannot be the basis of a Due Process claim. [fn 8, p. 18, 19] Surveying precedent and commentaries, the majority held that the “overall focus” was on the ability to form intention (cognitive capacity) and not on moral capacity. [p. 16] Thus, the inability to distinguish between right and wrong, rather than being an independent ground, “served as a sign” of cognitive breakdown which precluded the finding of any intent. [p. 18] The majority here erroneously conflates the intention to commit an act and the ability to distinguish right from wrong.
The dissent addresses this by highlighting that while a person’s mental illness may leave unaffected their ability to form intention, it may nevertheless affect their motivation. [p. D20] For example, where a person commits a crime under the delusion that they will otherwise be killed (persecutory delusion) or that a supreme being commands it (religious delusion), they possess the requisite intention but not the moral capacity required for blameworthiness, thus precluding criminal responsibility.
The majority notes that definitions of legal culpability and mental illness are matters of 'state governance, not constitutional law.' [p. 24] In constitutional doctrine, this is sound. A federal structure requires that states are granted the autonomy to define the relationship between crime, moral culpability, and mental health. The dissent unequivocally agrees with this. [p. D1] However, the dissent holds that Kansas has not modified the defence but “eliminated the core” completely. [p. D1] The dissent holds that while the moral capacity test is not constitutionally required, it emerges from a “fundamental principle” [p. D4] of criminal law – that criminal liability must reflect a defendant’s capacity for moral agency and culpability. Absent such agency, such persons are “no more responsible for his actions than a young child or a wild animal.” [p. D3] This would explain why crimes committed by children are now treated differently with some countries exempting children from any prosecution altogether.
The dissent states that even in the context of the common law tradition, ‘mens rea’ was broader than mere intent and was linked to free will and moral understanding. According to this, where there is no reason, there is no free will. Where there is no free will, there can be no intention. Justice Breyer write — “To be guilty of a crime, the accused must have something more than bare ability to form intentions and carry them out.” [p. D13] The ‘more’, according to the dissent, is the agency to distinguish right from wrong. According to the dissent, the M’Naghten Rule was itself based on prior settled American criminal jurisprudence on individual blameworthiness and culpability. [p. D15]
The final reason employed by the majority is that while the moral capacity test requires the ability to distinguish right from wrong, the word ‘wrong’ could mean either a legal wrong and a moral. [p. 21] If a defendant was aware that the action is against the law, they would not be exonerated, despite their belief that the action was morally just (say commanded by God). The Court notes that 16 states have adopted the ‘legal wrong’ variant of the moral capacity test and accepting Kahler’s contention would require them to be struck down. While there is some support to Justice Breyer’s statement that the difference between legal wrong and moral wrong is illusory as it exonerates “roughly the same universe of defendants”, [p. D17] the simpler answer to this is that a question of this distinction did not arise in this case as Kansas provided neither version of the moral capacity test.
Conclusion
SCOTUS had an opportunity to decide the issue in Kahler by affirming the importance of values at the heart of criminal law. Unfortunately, the Majority opinion has failed to do so. To me, the Dissent not only reaches the correct outcome, that the Kansas' action violates the Due Process clause, it also arrives at this outcome via a more favourable approach that is committed to the basic tenets of criminal law such as moral agency, culpability and blameworthiness. As the Dissent rightly notes, Kansas’ law will lead to the “conviction of a broad swath of defendants” who “would be adjudged not guilty under any traditional form of the defense.” [p. D21] This would violate “deeply entrenched and widely recognized moral principles” of the criminal justice system. The Majority opinion in Kahler is right to note the leeway states possess in a federal polity. However, what the Majority overlooks is the significant points highlighted in the dissent and above. Where the Majority holds the Kansas has modified the defence, it has in fact dealt it a death blow.
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