Even with so much uncertainty engulfing our world due to the current COVID-19 pandemic, it’s comforting to have some sense of continuity. With so many institutions postponing their standard work or outright canceling their engagements, it’s helpful to see some continuity.
Consequently, the fact that the Supreme Court of the United States (SCOTUS) is still working and deciding opinions is helpful, even if those decisions themselves aren’t necessarily “helpful” for everyone. Sadly, that seems to be the case in regards to the High Court’s recent decision in
History of the insanity defense
Dating back to common law, there have always been two general requirements necessary to impose criminal liability on a person: mens rea (the guilty mind or intent to commit the crime) and actus reus (the guilty act that effectuates the crime). With those requirements in mind, history has generally allotted some form of deference to individuals who are so unsound of mind that they are unable to form the requisite mens rea.
Because the notion of an “insanity defense” has been around for so long, it has changed and evolved over time, juxtaposed continuously with different cultural contexts and societal norms. Even in a single country (take the United States, for example), one can see the way in which the insanity defense has changed over time. This change has been reflected in centuries of case law and jurisprudence.
The Supreme Court speaks
To the surprise of many, it was Associate Justice Elena Kagan who sided with the High Court’s five conservative justices to secure a 6-3 ruling that effectively allows every state in the Union to throw away centuries of jurisprudence and rid themselves of Defendants’ ability to use their insanity as a defense to their crime.
According to Justice Kagan, who pinned the opinion, SCOTUS “decline[d] to require that Kansas adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong.” As far back as common law, though, criminal defendants could raise an affirmative defense of insanity so long as they can prove in court that their mental illness affects their thinking to a degree at which they cannot legally understand the difference between right and wrong.
Justice Breyer, in a 23-page dissent, noted that SCOTUS was eliminating a centuries-old defense, and that the insanity defense existed for good reason. In essence, it allowed for a prosecutor during plea negotiations or a jury during trial to consider the fact “that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”
How will states react?
I’ve previously written about my view on the insanity defense. I firmly believe there exists a stark contrast between those defendants who have mental health issues and those who are legally insane.
As such, it makes sense that the insanity defense is raised in only one percent of county court cases, and when it is employed, the defense is unsuccessful three out of four times. A significant reason for those statistics rests with laypersons’ understanding of mental health as it compares to mental insanity. Jurors are laypersons as far as the law is concerned, and they are usually skeptical of defendants trying to “hide” behind their mental health issues.
The problem with that line of thinking, though, is that there is an appreciable difference between an individual that merely has mental health issues affecting their cognition and the prism through which they view reality as opposed to individuals who are so mentally disturbed they cannot tell right from wrong.
Some may make analogies to a persons’ “moral compass” and point out that some people don’t understand the difference between right and wrong due to how they were raised and their life experiences. However, that is entirely different than someone who can not differentiate between right and wrong because they are so mentally ill that their perception of reality is impossible of grasping that distinction regardless of their upbringing or social interactions throughout life.
As Kansas exhibited, there are already states that do not have an insanity defense. Some states that do have the defense reject the verdict option of “not guilty by reason of insanity” and instead only allow for a verdict of “guilty but insane.” Many more states will likely follow in those footsteps as a result of the SCOTUS decision.
Outlawing the insanity defense will free up funds that are typically used to house, treat, and monitor those defendants who are found to be not guilty by reason of insanity in state court. Legislators will likely see the costs they could shave from those budgets. That, along with the likely push from lobbyists representing District Attorney Councils and similar organizations, will go a long way towards more states erasing centuries of precedent with the stroke of a pen.