Justices Open New Term Hearing Challenge to Kansas’ Lack of Insanity Defense

October 8, 2019 by Dan McCue
A line of spectators lines up outside the U.S. Supreme Court on the first day of its 2019-2020 term. (Photo by Dan McCue)

WASHINGTON — The Supreme Court began what is expected to be a closely watched election year term on Monday with a case that asked a fundamental question: Does the U.S. Constitution guarantee a defendant an insanity defense?

At issue in Kahler v. Kansas is whether Kansas violated the Eighth and Fourteenth Amendments when it abolished the insanity defense in 1996.

Kansas is one of only four states that have eliminated a defendant’s ability to plead not guilty by reason of insanity. Idaho, Montana and Utah are the others.

Alaska also limits the insanity defense.

Hundreds of people who hoped to see at least a portion of the high court’s consideration of its first three cases of the term were still standing outside the Supreme Court building when the justices took the bench shortly after 10 o’clock.

Missing was Justice Clarence Thomas, who Chief Justice John Roberts explained was home ill, but would be participating in the cases through the briefs that have been filed. The court said later Thomas likely has the flu.

In his absence, the other justice dove into Kahler with vigor. All eight of the justices asked probing questions of attorney Sarah Schrup, who was representing Kahler, and Toby Crouse and Elizabeth Prelogar, respectively Kansas’ Solicitor General and an assistant to the solicitor general, who appeared on behalf of the state.

What wasn’t at issue were the basic facts of the case.

In 2008, James and Karen Kahler began having troubles in their marriage stemming from Karen’s affairs with a female trainer with whom she worked. James Kahler believed the relationship would end when he took a new job in Missouri. When it didn’t, they got in a violent altercation at a New Year’s party and divorced shortly afterwards.

James Kahler spiraled downward after these events, and was eventually fired from his job. In August 2009, his parents asked him to move to their ranch in Meriden, Kansas.

It was Thanksgiving 2009, when things came to a head. Kahler’s 10-year-old son Sean spent the holiday at the ranch and called his mother to ask to stay. She declined and picked up her son while her ex-husband was running an errand.

Later that day, he drove an hour to the home of Karen’s parents, entered the house with a high-powered rifle and shot his 44-year-old ex-wife. He then walked through the house and shot and killed his former mother-in-law, Dorothy Wight, 89, and his two daughters, Lauren, 16, and Emily, 18.

At trial, the defense did not dispute that Kahler shot and killed the victims. Instead, it argued his severe depression had rendered him incapable of forming the intent and premeditation required to establish the crime of capital murder.

The jury disagreed and later sentenced him to death. On appeal, Kahler argued that Kansas’ mens rea approach to the insanity defense violates the Due Process Clause of the 14th Amendment.  The parties dispute whether he also raised a similar challenge under the 8th Amendment.

The Kansas Supreme Court affirmed Kahler’s convictions, finding that an insanity defense is not a constitutionally required fundamental right.

Prior to the adoption of the Kansas statute at issue, the state followed the widely adopted M’Naghten test for insanity. The M’Naghten rule provides that a defendant is not criminally responsible when the defendant does not know the nature of his act, or alternatively, does not know right from wrong with respect to the act.

The new Kansas statute, effective Jan. 1, 1996, abandoned the M’Naghten rule in favor of the so-called “mens rea approach” which relates to the intent required to find the defendant guilty of the crime.

What this means is that in Kansas, a defendant suffering from mental illness or a mental defect can argue that the disease or defect prevented him from forming the mental intent needed to commit the crime, but cannot use the inability to distinguish right from wrong as the bases for a defense to a criminal act.

The first question from the bench of the new term came from Justice Ruth Bader Ginsburg, who made headlines this summer when it was revealed she’d been treated for a tumor on her pancreas.

“Suppose a state decided to rethink its insanity defense and looked to the foreign courts for an alternative, like ‘Guilty but insane’,” Ginsburg said. “Would that violate the Due Process?”

Justice Roberts then broke in, asking whether the alternative Ginsburg mentioned, “guilty but insane” came with too many “collateral consequence.”

“If you’re found ‘guilty but insane,’ you’re sent to a mental institution,” Ginsburg answered. “You’re removing the collateral consequence of going to prison.”

Justice Samuel Alito took another tack in trying to define the criminal capacity of a defendant.

“There are many people who believe things are illegal, but not immoral,” he said.

But as the justices and the attorney Schrup wrestled with these issues, Justice Elena Kagan cut to the chase. Noting that there have been many ways of understanding criminal capacity over time, she wanted to know why Schrup was insisting that the M’Naghten rule must be preserved.

“We’re not stuck with all of history, are we?” she asked. “If not, why must we keep this one? Why does Due Process require we hang on to this rule, notwithstanding the judgment of some states.”

Meeting for the first time in public since late June, the court is opening a term in which the contributions of Justices Neil Gorsuch and Brett Kavanaugh, President Donald Trump’s two nominees to the court, will be watched for signs they are pulling the court to the right.

On Monday both appeared to be concerned about how far Schrup wanted the court to go when it came to applying an insanity defense — Gorusch wondering where you drew the line on the types of crimes where an insanity defense would be appropriate — and whether jurors could parse all the nuances she included in her original brief in the case.

Schrup parried the justices questions gamely. They were no less tough on the representative of Kansas.

Throughout the hour-long oral arguments words and phrases like “lunatic,” “idiot” and “irresistible compulsion” filled the air as the justices grappled with criminal law precedents that dated back, in some cases, to the 1,500s.

In the end, it was unclear how the case would come out, and even then, what it would mean for Kahler.

Justice Kagan again came right to the point when she suggested that even if Kahler were to win at the Supreme Court and could plead insanity, he ultimately would not get a reprieve from his conviction.

In no state, she said, “would your client be found insane.”

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