Are Criminals Bad or Mad? Premeditated Murder, Mental Illness, and Kahler v. Kansas.

• Author: Larkin, Paul J., Jr.

INTRODUCTION I. KAHLER V. KANSAS A. The Treatment of Mental Disease under Kansas's Criminal Law B. Kahler Shoots Four Members of His Family at Close Range in Different Locations in His Grandmother-in-Law's Home C. The Kansas Supreme Court's Decision II. THE DUE PROCESS CLAUSE AND THE INSANITY DEFENSE A. The Text of the Due Process Clause B. The History of the Due Process Clause C. The Supreme Court's Interpretation of the Due Process Clause 1. The Supreme Court and Mens Rea 2. Procedural Versus Substantive Due Process D. The Rationality of Kansas's Approach to Criminal Responsibility III. THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE AND THE INSANITY DEFENSE A. The Text of the Cruel and Unusual Punishments Clause B. The History of the Cruel and Unusual Punishments Clause C. Judicial Interpretations of the Cruel and Unusual Punishments Clause 1. The Cruel and Unusual Punishments Clause and Sentencing 2. The Cruel and Unusual Punishments Clause and Criminal Responsibility D. The Purpose of the Cruel and Unusual Punishments Clause CONCLUSION INTRODUCTION

Murder, it is sad to say, is an ancient phenomenon. (1) Each one is a profound assault on its immediate victim, but also has the same far-reaching, rippling effect as a stone thrown into a still body of water. Among other consequences, felt both immediately and over the long term, murder corrodes the perception of communal security that any society needs to remain cohesive. (2)

In the earliest days of Anglo-American law, society found punishment of murderers necessary to avoid the violent inter-clan retaliation that would otherwise follow and to restore, as far as possible, the peace of the realm. (3) The criminal law has always been civilization's principal defense against crime; it protects society against such mayhem, whatever its cause might be. As Professors Joseph Goldstein and Jay Katz put it, the criminal law seeks "to protect the life, liberty, dignity, and property of the community and its members by threatening to deprive those who ... contemplate [antisocial] conduct and by inflicting sanctions upon those who engage in proscribed activity." (4) That understanding is why the English common law ultimately came to treat all felonies, particularly murder, not only as a harm done to the victim, but also as an act "contra coronam et dignitatem regis" (an act contrary to the peace and dignity of the crown), which the sovereign may punish himself. (5)

Mental illness is almost as old as murder, (6) and sometimes they occur in tandem. (7) When a murderer is mentally ill, the problems he generates for society increase in complexity. Deciding precisely what the response should be has been the subject of vigorous debate throughout the legal community, the medical profession, and the legislatures on each side of the Atlantic. (8) It is, as Professor Francis Allen once put it, "a task of great difficulty." (9) The reason, as Chief Justice Burger explained, is that the issue of whether--and, if so, how--a mentally ill offender should be held responsible for his conduct is "complicated" by the "intertwining moral, legal, and medical judgments" that a judge or jury must make. (10)

Tasked with the responsibility to decide concrete cases, however, the Anglo-American courts have long designed rules defining the consequences of mental illness for the trial, conviction, and punishment of an offender. (11) That process has gone forward for centuries in much the same manner that Oliver Wendell Holmes used to describe the evolution of the common law: as a matter governed by experience, rather than logic. (12)

The criminal law has traditionally used a multistage process to adjudicate cases involving a defendant's claim that he is not criminally responsible because of insanity based on a severe mental illness. (13) The trial in such cases worked as follows: A jury would first decide whether the defendant was guilty of the charged offense. (14) In making that determination, the jury could not consider any evidence that, because of a mental disorder, the defendant could not formulate the scienter or mens rea elements of the charged offense. (15) Under the law or practice in the states, (16) the jury could consider evidence of a defendant's severe mental illness only at a separate, post-guilt stage devoted entirely to the issue of his sanity, known as the insanity stage. (17) At that phase, a defendant could offer evidence that he suffered from a disabling mental disease or defect and should not be held criminally responsible for his conduct. (18) If the jury agreed with the defendant, the jury would return a verdict of "not guilty by reason of insanity," which ordinarily resulted in his commitment to a mental institution, instead of his imprisonment. (19)

Within the last two decades, Kansas decided to try a new approach. The state revamped when and how it allows a jury to consider evidence of a defendant's mental illness. Historically, Kansas followed the widely used practice of conducting a separate, post-guilt stage to resolve a defendant's claim that he is not guilty of a crime because of a mental disease or defect. Now, Kansas has switched around its procedure for raising any such defense. A defendant may still argue that the jury should not hold him responsible for a crime because of mental illness. Under the new law, however, he may introduce that evidence only at the guilt stage and then only to raise a reasonable doubt that he possessed a mental state defined by state law as an element of the offense. (20)

This term, the Supreme Court will decide whether the Constitution restrains a legislature's decision to decide how mentally ill offenders should be held responsible. Offenders twice argued that the new Kansas procedure is unconstitutional, and the Kansas Supreme Court twice rejected their arguments. (21) The Court granted review in Kahler v. Kansas (22) to decide whether the Kansas state legislature acted arbitrarily by choosing to experiment with a new approach for resolving that issue. (23)

This Article maintains that Kansas's decision was constitutionally permissible. The Due Process Clause does not require the criminal law to offer an insanity defense. The Eighth Amendment prohibits cruel and unusual punishment, but says nothing about the definition of crimes. Ultimately, the Constitution allows the states to determine the relevance of mental illness to the substantive criminal law and requires only that a state's chosen approach be rational, which Kansas's approach certainly is.

The discussion below proceeds as follows: Part I explains how Kansas law treats mental illness, describes James Kahler's crimes, and summarizes the decision of the Kansas Supreme Court. Part II addresses Kahler's claim that the Kansas procedure violates the Due Process Clause of the Fifth and Fourteenth Amendments. Part III addresses that issue from the perspective of the Eighth Amendment Cruel and Unusual Punishments Clause.

1. KAHLER V. KANSAS

   1. The Treatment of Mental Disease under Kansas's Criminal Law

      At least as early as 1884, Kansas adopted the formulation of the insanity defense known as the M'Naghten rule. (24) Established by the House of Lords in 1843, the M'Naghten rule required a jury to acquit a criminal defendant if it found that he was "not sensible" at the time he committed the crime because, by reason of a "disease of the mind," he suffered "under such a defect of reason" that he did not know "the nature and quality" of his act or that it was "wrong." (25)

      The M'Naghten rule remained undisturbed in Kansas until 1995. (26) Following years of growing public concern over the insanity defense after John Hinckley, Jr.'s attempt to assassinate President Ronald Reagan, (27) the Kansas legislature revisited the insanity defense and revised state law to refocus it. (28) The new law, section 22-3220 of Kansas Statutes Annotated, provided as follows: "It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense." (29) The effect of the revision allows a defendant to use evidence of a mental disease to raise a reasonable doubt that he did or could have formed the mens rea required for conviction. (30) That statute was on the books when Kahler was tried and convicted of capital murder for killing four members of his family.

   2. Kahler Shoots Four Members of His Family at Close Range in Different Locations in His Grandmother-in-Law's Home

      In the summer of 2008, Kahler's wife, Karen, told him that she wanted to have a sexual relationship with a female colleague of hers. (31) Kahler consented to the relationship but grew embarrassed by public displays of affection between his wife and her lover, one of which led to a shoving match between the Kahlers. (32) The two attempted marriage counseling, but the effort proved unsuccessful. (33) By January 2009, Karen had filed for divorce. (34) Kahler maintained that these events threw him into severe depression. (35) He was unable to cope with the divorce, and, in March 2009, he was publicly arrested and charged with domestic abuse against Karen. (36) Karen then left the family home and took with her their three children, Emily, Lauren, and Sean. (37)

      Kahler's marriage and family relationships disintegrated. (38) His colleagues noted that he became increasingly preoccupied by his personal problems and paid less and less attention to his job. (39) By August 2009, he was fired. (40) His parents were concerned about his well-being and moved Kahler into their home. (41)

      The family had a tradition of spending the weekend after Thanksgiving at the home of Karen's grandmother, Dorothy. (42) Sean had been staying with Kahler and his parents in the days beforehand, and he asked Karen if he could remain there for the weekend. (43) Karen said that Sean should spend the holiday at...