SUPREME COURT OF THE UNITED STATES
JAMES K. KAHLER, PETITIONER v.
on writ of certiorari to the supreme court of kansas
[March 23, 2020]
Justice Breyer, with whom Justice Ginsburg and Justice Sotomayor join, dissenting.
Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity. But here, Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness
, lacked the mental capacity necessary for his conduct to be considered morally blameworthy. Seven hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself, convince me that Kansas’ law “ ‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Leland
343 U.S. 790
, 798 (1952) (quoting Snyder
291 U.S. 97
, 105 (1934)).
A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.
To put the matter in more explicitly legal terms, consider the most famous statement of the traditional insanity defense, that contained in M’Naghten’s Case
, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843). Lord Chief Justice Tindal, speaking for a majority of the judges of the common-law courts, described the insanity defense as follows:
“[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind,  as not to know the nature and quality of the act he was doing; or,  if he did know it, that he did not know he was doing what was wrong.” Id.
, at 210, 8 Eng. Rep., at 722.
The first prong (sometimes referred to as “cognitive incapacity”) asks whether the defendant knew what he was doing. This prong corresponds roughly to the modern concept of mens rea
for many offenses. The second (sometimes referred to as “moral incapacity”) goes further. It asks, even if the defendant knew what he was doing, did he have the capacity to know that it was wrong? Applying this test to my example, a court would find that both defendants successfully established an insanity defense. Prosecution One (he thought the victim was a dog) falls within M’Naghten
’s first prong, while Prosecution Two (he thought the dog ordered him to do it) falls within its second prong.
In Kansas’ early years of statehood, its courts recognized the M’Naghten
test as the “cardinal rule of responsibility in the criminal law.” State
, 32 Kan. 205, 206, 4 P. 159, 160 (1884). Kansas “steadfastly adhered to that test” for more than a century. State
, 249 Kan. 431, 449–450, 819 P.2d 1173
, 1187 (1991). But in 1995, Kansas “ ‘legislatively abolish[ed] the insanity defense.’ ” State
, 269 Kan. 72, 82, 4 P.3d 610, 617 (2000) (quoting Rosen, Insanity Denied: Abolition of the Insanity Defense in Kansas, 8 Kan. J. L. & Pub. Pol’y 253, 254–255 (1997)). Under the new provision, a criminal defendant’s mental disease or defect is relevant to his guilt or innocence only insofar as it shows that he lacked the intent defined as an element of the offense, or mens rea
. If the defendant acted with the required level of intent, then he has no defense based on mental illness. Kan. Stat. Ann. §21–5209 (2018 Cum. Supp.).
Under Kansas’ changed law, the defendant in Prosecution One could defend against the charge by arguing that his mental illness prevented him from forming the mental state required for murder (intentional killing of a human being)—just as any defendant may attempt to rebut the State’s prima facie case for guilt. The defendant in Prosecution Two has no defense. Because he acted with the requisite level of intent, he must be convicted regardless of any role his mental illness played in his conduct. See 307 Kan. 374, 401, 410 P.3d 105, 125 (2018) (acknowledging that Kansas’ mens rea
approach “allows conviction of an individual who had no capacity to know that what he or she was doing was wrong”).
I do not mean to suggest that M’Naghten
’s particular approach to insanity is constitutionally required. As we have said, “[h]istory shows no deference to M’Naghten
548 U.S. 735
, 749 (2006). M’Naghten
’s second prong is merely one way of describing something more fundamental. Its basic insight is that mental illness may so impair a person’s mental capacities as to render him no more responsible for his actions than a young child or a wild animal. Such a person is not properly the subject of the criminal law. As I shall explain in the following section, throughout history, the law has attempted to embody this principle in a variety of ways. As a historical matter, M’Naghten
is by far its most prominent expression, but not its exclusive one. Other ways of capturing it may well emerge in the future. The problem with Kansas’ law is that it excises this fundamental principle from its law entirely.
The Due Process Clause protects those “ ‘principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Leland
, 343 U. S., at 798. Our “primary guide” in determining whether a principle of justice ranks as fundamental is “historical practice.” Montana
518 U.S. 37
, 43 (1996) (plurality opinion). The Court contends that the historical formulations of the insanity defense were so diverse, so contested, as to make it impossible to discern a unified principle that Kansas’ approach offends. I disagree.
Few doctrines are as deeply rooted in our common-law heritage as the insanity defense. Although English and early American sources differ in their linguistic formulations of the legal test for insanity, with striking consistency, they all express the same underlying idea: A defendant who, due to mental illness, lacks sufficient mental capacity to be held morally responsible for his actions cannot be found guilty of a crime. This principle remained embedded in the law even as social mores shifted and medical understandings of mental illness evolved. Early American courts incorporated it into their jurisprudence. The States eventually codified it in their criminal laws. And to this day, the overwhelming majority of U. S. jurisdictions recognize insanity as an affirmative defense that excuses a defendant from criminal liability even where he was capable of forming the mens rea
required for the offense. See Appendix, infra
Consider the established common-law background of the insanity defense at and around the time the Framers wrote the Constitution. The four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, each linked criminality to the presence of reason, free will, and moral understanding. It is “will and purpose,” wrote Henry de Bracton in his 13th-century treatise, that “mark maleficia
[misdeeds].” 2 Bracton On Laws and Customs of England 384 (S. Thorne transl. 1968) (Bracton); Oxford Latin Dictionary 1067 (P. Glare ed. 1982). A “madman,” he explained, “can no more commit an injuria
[unlawful conduct] or a felony than a brute animal, since they are not far removed from brutes.” 2 Bracton 424; Oxford Latin Dictionary, at 914. Seizing on Bracton’s reference to “brute animals” (sometimes translated “wild beasts”), the Court concludes that Bracton’s approach, like Kansas’, would excuse only those who lack capacity to form any intention at all. See ante
at 15. But what does it mean to be like a “brute animal”? A brute animal may well and readily intend to commit a violent act without being able to judge its moral nature. For example, when a lion stalks and kills its prey, though it acts intentionally, it does not offend against the criminal laws. See 2 Bracton 379 (noting that “murder” is defined as “by the hand of man” to “distinguish it from the case of those slain or devoured by beasts and animals which lack reason”).
Bracton’s other references to “madmen” shed further light on the meaning he attached to that term. Bracton described such persons as “without sense and reason” and “lack[ing] animus
, at 324, 424. And he likened a “lunatic” to an “infant,” who cannot be held liable in damages unless he “is capable of perceiving the wrongful character of his act.” Id.
, at 324; see also 4 id
., at 356 (“in many ways a minor and a madman are considered equals or not very different, because they lack reason” (footnote omitted)). Thus, Bracton’s “brute animal” included those who lacked the qualities of reason and judgment that make human beings responsible moral agents. See Platt, The Origins and Development of the “Wild Beast” Concept of Mental Illness and Its Relation to Theories of Criminal Responsibility, 1 Issues in Crim. 1, 6 (1965).
Leaving Bracton, let us turn to Sir Edward Coke, writing in the early 17th century. Coke wrote that “the act and wrong of a mad man shall not be imputed to him,” not because he could not engage in intentional conduct (the equivalent of the modern concept of mens rea
), but because he lacked something more—“mind or discretion.” 2 Institutes of the Laws of England §405, p. 247b (1628). Coke, like Bracton before him, likened a “mad man” to an “[i]nfant,” who could not be punished as a criminal “untill he be of the age of fourteene, which in Law is accounted the age of discretion.” Ibid
. What is it that the “[i]nfant” lacks? Since long before Coke’s time, English jurists and scholars believed that it was the moral nature, not the physical nature, of an act that a young child is unlikely to understand. See Platt & Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey, 54 Cal. L. Rev. 1227, 1233–1234 (1966) (Platt & Diamond).
Sir Matthew Hale also premised criminal liability on the presence of “understanding and liberty of will,” without which “there can be no transgression, or just reason to incur the penalty or sanction that law instituted for the punishment of the crimes or offenses.” 1 Pleas of the Crown, ch. 2, pp. 14–15 (1736). Hale, too, likened insane persons to “infants” under the age of 14, who were subject to the criminal laws only if they “had discretion to judge between good and evil.” Id.
, ch. 3, at 26–27; id.
ch. 4, at 30 (a person who is “labouring under melancholy distempers hath yet ordinarily as great understanding, as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony”). Those suffering from “total insanity” could not be guilty of capital offenses, “for they have not the use of understanding, and act not as reasonable creatures, but their actions are in effect in the condition of brutes.” Id.
, at 30–32.
Sir William Blackstone, whose influence on the founding generation was the most profound, was yet more explicit. A criminal offense, he explained, requires both a “vitious will” and a “vitious act.” 4 Commentaries on the Laws of England 21 (1769). Persons suffering from a “deficiency in will” arising from a “defective or vitiated understanding” were “not [criminally] chargeable for their own acts.” Id.
, at 24. Citing Coke, he explained that murder must be “committed by a person of sound memory and discretion” because a “lunatic or infant” is “incapable of committing any crime, unless in such cases where they shew a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil.” Id.
, at 195–196. And he opined that deprivation of “the capacity of discerning right from wrong” is necessary “to form a legal excuse.” Id.
, at 189.
These four eminent jurists were not alone. Numerous other commentators expressly linked criminal liability with the accused’s capacity for moral agency. William Lambard’s 1581 treatise ranked a “mad man” as akin to a “childe” who had “no knowledge of good nor evil.” Eirenarcha, ch. 21, p. 218. If such a person killed a man, that is “no felonious acte” because “they can[n]ot be said to have any understanding wil[l].” Ibid.
But if “upon examination” it appeared that “they knew what they did, [and] it was ill
, the[n] seemeth it to be otherwise.” Ibid.
(emphasis added). Michael Dalton’s 1618 manual for justices of the peace instructed that “[i]f one that is Non compos mentis
. . . kill a man, this is no felonie; for they have no knowledge of good and evill, nor can have a felonious intent, nor a will or mind to do harme.” The Countrey Justice 215. William Hawkins, in 1716, wrote that “those who,” like “[l]unaticks,” are “under a natural Disability of distinguishing between Good and Evil . . . are not punishable by any criminal Prosecution whatsoever.” 1 Pleas of the Crown §1, p. 2; see also id.
, at 1 (“The Guilt of offending against any Law whatsoever . . . can never justly be imputed to those who are either uncapable of understanding it, or of conforming themselves to it”).
English treatises on the law of mental disability adopted the same view. George Collinson explained that “[t]o excuse a man in the commission of a crime, he must at the period when he committed the offense, have been wholly incapable of distinguishing between good and evil, or of comprehending the nature of what he is doing.” Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compotes Mentis §7, p. 474 (1812) (Collinson); see also id.
, §2, at 471 (“[A]n evil intention is implied in every offence, and constitutes the charge of every indictment: but a non compos, not having a will of his own, cannot have an intention morally good or bad; so that the overt act by which alone the motives of other men are discerned, with respect to him proves nothing”). Similarly, Leonard Shelford, summarizing English case law, wrote that “[t]he essence of a crime consists in the animus or intention of the person who commits it, considered as a free agent, and in a capacity of distinguishing between moral good and evil.” Practical Treatise on the Law Concerning Lunatics, Idiots, and Persons of Unsound Mind 458 (1833) (emphasis deleted).
The majority believes that I am “cherry-pick[ing]” references to moral understanding while ignoring references to intent and mens rea
. See ante
at 15–17, nn. 8, 9. With respect, I disagree. The Court points out, correctly, that many of the common-law sources state that the insane lack mens rea
or felonious intent. But what did they mean by that? At common law, the term mens rea
ordinarily incorporated the notion of “general moral blameworthiness” required for criminal punishment. Sayre, Mens Rea, 45 Harv. L. Rev. 974, 988 (1932); 3 Encyclopedia of Crime and Justice 995 (2d ed. 2002) (as used at common law, the term mens rea
“is synonymous with a person’s blameworthiness”). The modern meaning of mens rea
is narrower and more technical. Ibid.
It refers to the “state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense.” Ibid.
When common-law writers speak of intent or mens rea
, we cannot simply assume that they use those terms in the modern sense. That is an anachronism. Instead, we must examine the context to understand what meaning they ascribed to those terms. And when we do so, we see that, over and over again, they link criminal intent to the presence of free will and moral understanding. The Court dismisses those passages as just “some ‘good and evil’ language.” Ante
, at 17, n. 9. But it fails to explain why, if mens rea
in the modern sense were sufficient, these common-law writers discuss the role of moral agency at all, much less why such language appears in virtually every treatise and virtually every case. In the Court’s view, all that is just spilled ink.
The English case law illustrates this point. In the seminal case of Rex
, 16 How. St. Tr. 695 (1724), the defendant stood accused of shooting Lord Onslow while laboring under the insane delusion that Onslow had bewitched him. Id.
, at 699, 721. The Court emphasizes Justice Tracy’s statement to the jury that if a man is “ ‘deprived of his reason, and consequently of his intention, he cannot be guilty,’ ” concluding that the court adopted a modern mens rea
, at 16. But in the passage immediately preceding that statement, Justice Tracy explained that the defendant’s intent to shoot was clearly proved, and that the only remaining question was whether his mental illness excused him from blame:
“That he shot, and that wilfully [is proved]: but whether maliciously, that is the thing: that is the question; whether this man hath the use of his reason and sense? If he was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, though he committed the greatest offence, yet he could not be guilty of any offence against any law whatsoever; for guilt arises from the mind, and the wicked will and intention of the man. If a man be deprived of his reason, and consequently of his intention, he cannot be guilty
; and if that be the case, though he had actually killed my lord Onslow, he is exempted from punishment.” 16 How. St. Tr., at 764 (emphasis added; brackets in original).
See also ibid.
(summarizing the testimony of one Mr. Coe, who testified that he went to the defendant three days after the shooting “and asked him, If he intended to kill my lord Onslow? and he said, Yes, to be sure”). On the next page, Justice Tracy concluded that the jury must determine whether the evidence “doth shew a man, who knew what he was doing, and was able to distinguish whether he was doing good or evil, and understood what he did.” Id.
, at 765.
Likewise, in the case of Rex
v. Lord Ferrers
, 19 How. St. Tr. 886 (1760), the solicitor general instructed the members of the House of Lords to consider the “ ‘capacity and intention’ ” of the accused, to be sure, ante
, at 17, but what did he mean by those terms? The ultimate question of insanity, he explained, depended on the defendant’s capacity at the time of the offense to distinguish right from wrong:
“My lords, the question therefore must be asked; is the noble prisoner at the bar to be acquitted from the guilt of murder, on account of insanity? It is not pretended to be a constant general insanity. Was he under the power of it, at the time of the offence committed? Could he, did he, at that time, distinguish between good and evil?” 19 How. St. Tr., at 948.
In summation, the solicitor general argued that Lord Ferrers’ own witnesses failed to provide any testimony “which proves his lunacy or insanity at any time.” Id.
, at 952. Reviewing the pertinent evidence, he noted that one witness testified that he “had observed great oddities in my lord,” but acknowledged that he “never saw him in such a situation, as not to be capable of distinguishing between good and evil, and not to know, that murder was a great crime.” Ibid.
Another admitted under questioning by the Lords that “he thought lord Ferrers capable of distinguishing between moral and immoral actions.” Ibid.
The defendant’s brother was the only witness to testify that “at particular times, the noble lord might not be able to distinguish between moral good and evil,” but even he, the solicitor general argued, had been unable to testify to “any instance within his own recollection.” Id.
, at 953. If Lord Ferrers’ bare intention to kill were sufficient to convict, why the extensive discussion of the evidence concerning his capacity for moral understanding?
These examples reflect the prevailing view of the law around the time of the founding. Judges regularly instructed juries that the defendant’s criminal liability depended on his capacity for moral responsibility. See, e.g.
, Trial of Samuel Burt
(July 19, 1786), in 6 Old Bailey Proceedings 875 (E. Hodgson ed. 1788) (to acquit based on insanity, it must be shown that the mental disorder “takes away from the party all moral agency and accountability,” and “destroys in them, for the time at least, all power of judging between right and wrong”); Trial of Francis Parr
(Jan. 15, 1787), 2 id.
, at 228 (jury must “judge whether at the moment of committing [the offense] he was not a moral agent, capable of discerning between good and evil, and of knowing the consequences of what he did”); Bowler’s Case
, 1 Collinson 673–674, n. (judge “concluded by observing to the jury, that it was for them to determine whether the Prisoner, when he committed the offence with which he stood charged, was or was not incapable of distinguishing right from wrong”). The government’s attorneys agreed that this was the proper inquiry. See, e.g.
, Parker’s Case
, 1 id.
, at 479–480 (the Attorney General argued that “the jury must be perfectly satisfied, that at the time when the crime was committed, the prisoner did not really know right from wrong”).
In none of the common-law cases was the judge’s reference to the defendant’s capacity for moral agency simply a proxy for the narrow modern notion of mens rea
. See ante
17. Something more was required. Consider Bellingham’s Case
, 1 Collinson 636. The defendant stood accused of the murder of Spencer Perceval, the Chancellor of the Exchequer, in the lobby of the House of Commons. Ibid.
The Court emphasizes Chief Justice Mansfield’s statement that one who could not distinguish right from wrong “ ‘could have no intention at all,’ ” concluding that Chief Justice Mansfield viewed moral incapacity as a symptom of cognitive breakdown rather than a test of insanity. Ante
at 18. But, as in Rex
, see supra,
at 9–10, the defendant’s intention to shoot Perceval was not seriously in dispute. 1 Collinson 670. Instead, his guilt or innocence turned on his capacity for moral blame. The “single question” for the jury, charged the Chief Justice, “was whether, when [the defendant] committed the offence charged upon him, he had sufficient understanding to distinguish good from evil, right from wrong, and that murder was a crime not only against the law of God, but against the law of his Country.” Id
., at 673. Lord Lyndhurst, presiding over the case of Rex
, 5 Car. & P. 168, 172 Eng. Rep. 924 (N. P. 1831), certainly understood that inquiry to be the crux of Chief Justice Mansfield’s charge. Citing Bellingham’s Case
, he instructed the jury that “[t]he question was, did [the accused] know that he was committing an offence against the laws of God and nature?” 5 Car. & P., at 168, 172 Eng. Rep., at 925.
The Court dismisses other common-law cases as failing to articulate a clear legal standard. See ante
, at 18–19. But these cases, too, required more than bare intent. In Hadfield’s Case
, 27 How. St. Tr. 1281 (1800), the defendant was acquitted after the prosecution conceded that he was “in a deranged state of mind” when he shot at King George III. Id
., at 1353. And in Regina
, 9 Car. & P. 525, 173 Eng. Rep. 941 (N. P. 1840), the court observed that a “person may commit a criminal act, and yet not be responsible.” Id.
, at 546, 173 Eng. Rep., at 950. Although it acknowledged the difficulty of “lay[ing] down the rule of the English law on the subject,” it summed up the inquiry as “whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the nature, character, and consequences of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious at the time he was committing the act, that it was a crime.” Id.
, at 546–547, 173 Eng. Rep., at 950. Although these and other English cases discuss insanity in terms that are less precise than our modern taxonomy of mental states, their lesson is clear. To be guilty of a crime, the accused must have something more than bare ability to form intentions and carry them out.
These fundamental principles of criminal responsibility were incorporated into American law from the early days of the Republic. Early American commentaries on the criminal law generally consisted of abridgments of the works of prominent English jurists. As early as 1792, one such abridgment instructed that “lunaticks, who are under a natural disability of distinguishing between good and evil are not punishable by any criminal prosecution.” R. Burn, Abridgment, or the American Justice 300; see also W. Stubbs, Crown Circuit Companion 288 (1 Am. ed. 1816) (“If one that is non compos mentis
. . . kill a man, this is no felony; for they have not knowledge of good and evil, nor can have a felonious intent, nor a will or mind to do harm”). And an influential founding-era legal dictionary described the “general rule” that lunatics, “being by reason of their natural disabilities incapable of judging between good and evil, are punishable by no criminal prosecution whatsoever.” 2 T. Cunningham, New and Complete Law Dictionary (2d corr. ed. 1771). Similarly, the first comprehensive American text on forensic medicine, published in 1823, cited Chief Justice Mansfield’s charge to the jury in Bellingham’s Case
for the proposition that “[s]o long as they could distinguish good from evil, so long would they be answerable for their conduct.” 1 T. Beck, Elements of Medical Jurisprudence 369. These principles, it concluded, “are doubtless correct, and conducive to the ends of justice.” Id.
, at 370.
Early American jurists closely hewed to these principles. In case after case, judges instructed juries that they must inquire into the defendant’s capacity for moral understanding. See, e.g.
, Meriam’s Case
, 7 Mass. 168 (1810), 6 N. Y. City-Hall Recorder 162 (1822) (whether the defendant was “at the time, capable of distinguishing good from evil”); Clark’s Case
, 1 N. Y. City-Hall Recorder 176, 177 (1816) (same); Ball’s Case
, 2 N. Y. City-Hall Recorder 85, 86 (1817) (same); United States
, 25 F. Cas. 454 (No. 14,811) (CC DC 1818) (whether defendant was “in such a state of mental insanity . . . as not to have been conscious of the moral turpitude of the act”); Cornwell
, 8 Tenn. 147, 155 (1827) (whether the prisoner “had not sufficient understanding to know right from wrong”).
As the foregoing demonstrates, by the time the House of Lords articulated the M’Naghten
test in 1843, its “essential concept and phraseology” were “already ancient and thoroughly embedded in the law.” Platt & Diamond 1258; see also 1 W. Russell, Crimes and Misdemeanors 8–14 (3d ed. 1843) (summarizing the pre-M’Naghten
English case law and concluding that the key questions were whether “there be thought and design, a faculty to distinguish the nature of actions, [and] to discern the difference between moral good and evil”). Variations on the M’Naghten
rules soon became the predominant standard in the existing states of the United States. Platt & Diamond 1257. That tradition has continued, almost without exception, to the present day.
It is true that, even following M’Naghten
, States continued to experiment with different formulations of the insanity defense. See ante
, at 19–20. Some adopted the volitional incapacity, or “irresistible-impulse,” test. But those States understood that innovation to expand, not contract, the scope of the insanity defense, excusing not only defendants who met some variant of the traditional M’Naghten
test but also those who understood that their conduct was wrong but were incapable of restraint. See, e.g.
, 81 Ala. 577, 584–585, 2 So. 854, 858–859 (1887); Bradley
, 31 Ind. 492, 507–508 (1869); State
, 25 Iowa 67, 82–83 (1868); Hopps
, 31 Ill. 385, 391–392 (1863).
So too, the “offspring” or “product” test, which asks whether the defendant’s conduct was attributable to mental disease or defect. The States that adopted this test did so out of the conviction that the M’Naghten
test was too restrictive in its approach to assessing the accused’s capacity for criminal responsibility. See Durham
v. United States
, 214 F.2d 862, 874 (CADC 1954) (“We conclude that a broader test should be adopted”); State
, 49 N. H. 399, 441–442 (1870); see also Reid, Understanding the New Hampshire Doctrine of Criminal Insanity, 69 Yale L. J. 367, 386 (1960) (“[T]he New Hampshire doctrine . . . is more liberal and has a wider range than M’Naghten
rules”). Even as States experimented with broader insanity rules, they retained the core of the traditional common-law defense.
In the early 20th century, several States attempted to break with that tradition. The high courts of those States quickly struck down their restrictive laws. As one justice of the Mississippi Supreme Court wrote in 1931: The “common law proceeds upon an idea that before there can be a crime there must be an intelligence capable of comprehending the act prohibited, and the probable consequence of the act, and that the act is wrong.” Sinclair
, 161 Miss. 142, 158, 132 So. 581, 583 (Ethridge, J., concurring). Accordingly, Justice Ethridge said, insanity “has always been a complete defense to all crimes from the earliest ages of the common law.” Ibid.
, 60 Wash. 106, 116, 110 P. 1020, 1022–1023 (1910); cf. State
, 168 La. 958, 965, 123 So. 639, 642 (1929).
Today, 45 States, the Federal Government, and the District of Columbia continue to recognize an insanity defense that retains some inquiry into the blameworthiness of the accused. Seventeen States and the Federal Government use variants of the M’Naghten
test, with its alternative cognitive and moral incapacity prongs. Three States have adopted M’Naghten
plus the volitional test. Ten States recognize a defense based on moral incapacity alone. Thirteen States and the District of Columbia have adopted variants of the Model Penal Code test, which combines volitional incapacity with an expanded version of moral incapacity. See Appendix, infra
. New Hampshire alone continues to use the “product” test, asking whether “a mental disease or defect caused the charged conduct.” State
, 153 N. H. 588, 593, 903 A.2d 1030, 1035 (2006). This broad test encompasses “ ‘whether the defendant knew the difference between right and wrong and whether the defendant acted impulsively,’ ” as well as “ ‘whether the defendant was suffering from delusions or hallucinations.’ ” State
, 138 N. H. 249, 255, 638 A.2d 783, 786 (1994). And North Dakota uses a unique formulation that asks whether the defendant “lacks substantial capacity to comprehend the harmful nature or consequences of the conduct, or the conduct is the result of a loss or serious distortion of the individual’s capacity to recognize reality.” N. D. Cent. Code Ann. §12.1–04.1–01(1) (2012).
Of the States that have adopted the M’Naghten
or Model Penal Code tests, some interpret knowledge of wrongfulness to refer to moral wrong, whereas others hold that it means legal wrong. See ante
, at 2–3, 20–22.
While there is, of course, a logical distinction between those interpretations, there is no indication that it makes a meaningful difference in practice. The two inquiries are closely related and excuse roughly the same universe of defendants. See State
, 117 N. J. 596, 609–611, 569 A.2d 1314
, 1321–1322 (1990) (“In most instances, legal wrong is coextensive with moral wrong”); State
, 98 Wash. 2d 789
, 799, 659 P.2d 488
, 494 (1983) (“ ‘[S]ince by far the vast majority of cases in which insanity is pleaded as a defense to criminal prosecutions involves acts which are universally recognized as morally wicked as well as illegal, the hair-splitting distinction between legal and moral wrong need not be given much attention’ ”); People
, 216 N.Y. 324, 340, 110 N.E. 945, 949 (1915) (Cardozo, J.) (“Knowledge that an act is forbidden by law will in most cases permit the inference of knowledge that, according to the accepted standards of mankind, it is also condemned as an offense against good morals”); see also ALI, Model Penal Code §4.01, Explanatory Note, p. 164 (1985) (explaining that “few cases are likely to arise in which the variation will be determinative”).
Consider the basic reason that underlies and explains this long legal tradition. That reason reveals that more is at stake than its duration alone. The tradition reflects the fact that a community’s moral code informs its criminal law. As Henry Hart stated it, the very definition of crime is conduct that merits “a formal and solemn pronouncement of the moral condemnation of the community.” The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 405 (1958).
The criminal law does not adopt, nor does it perfectly track, moral law. It is no defense simply to claim that one’s criminal conduct was morally right. But the criminal law nonetheless tries in various ways to prevent the distance between criminal law and morality from becoming too great. In the words of Justice Holmes, a law that “punished conduct [that] would not be blameworthy in the average member of the community would be too severe for that community to bear.” O. Holmes, The Common Law 50 (1881); see also ibid.
(“[T]o deny that criminal liability . . . is founded on blameworthiness . . . would shock the moral sense of any civilized community”).
Sometimes the criminal law seeks to keep its strictures roughly in line with the demands of morality through grants of discretion that will help it to reach appropriate results in individual cases, including special instances where the law points one way and morality the other. Thus, prosecutors need not prosecute. Jurors (however instructed) may decide to acquit. Judges may exercise the discretion the law allows them to impose a lenient sentence. Executives may grant clemency.
And sometimes the law attempts to maintain this balance by developing and retaining a “collection of interlocking and overlapping concepts,” including defenses, that will help “assess the moral accountability of an individual for his antisocial deeds.” Powell
392 U.S. 514
, 535–536 (1968) (plurality opinion). These concepts and defenses include “actus reus
, mens rea
, insanity, mistake, justification, and duress.” Id.
, at 536.
As we have recognized, the “process of adjustment” within and among these overlapping legal concepts “has always been thought to be the province of the States.” Ibid.
Matters of degree, specific content, and aptness of application all may be, and have always been, the subject of legal dispute. But the general purpose—to ensure a rough congruence between the criminal law and widely accepted moral sentiments—persists. To gravely undermine the insanity defense is to pose a significant obstacle to this basic objective.
The majority responds that Kansas has not removed the element of blameworthiness from its treatment of insanity; it has simply made a different judgment about what conduct is blameworthy. See ante
, at 13, n. 7.
That is not how the Kansas Supreme Court has characterized its law. See State
, 275 Kan. 456, 472, 66 P.3d 840, 850 (2003) (holding that Kansas law provides for “no consideration,” at the guilt phase, “of whether wrongfulness was inherent in the defendant’s intent”). In any event, as the Court acknowledges, the States’ discretion in this area must be constrained within “broad limits,” ante
, at 7, which are derived from history and tradition. The question is whether Kansas’ approach transgresses those limits. I doubt that the Court would declare, for example, that a State may do away with the defenses of duress or self-defense on the ground that, in its idiosyncratic judgment, they are not required. With respect to the defense of insanity, I believe that our history shows clearly that the criminal law has always required a higher degree of individual culpability than the modern concept of mens rea
. See Part II, supra
. And in my view, Kansas’ departure from this long uniform tradition poses a serious problem.
To see why Kansas’ departure is so serious, go back to our two simplified prosecutions: the first of the defendant who, because of serious mental illness, believes the victim is a dog; the second of a defendant who, because of serious mental illness, believes the dog commanded him to kill the victim. Now ask, what moral difference exists between the defendants in the two examples? Assuming equivalently convincing evidence of mental illness, I can find none at all. In both cases, the defendants differ from ordinary persons in ways that would lead most of us to say that they should not be held morally responsible for their acts. I cannot find one defendant more responsible than the other. And for centuries, neither has the law.
More than that, scholars who have studied this subject tell us that examples of the first kind are rare. See Brief for 290 Criminal Law and Mental Health Law Professors as Amici Curiae
12. Others repeat this claim. See Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1205 (2000); Morse, Mental Disorder and Criminal Law, 101 J. Crim. L. & C. 885, 933 (2011). That is because mental illness typically does not deprive individuals of the ability to form intent. Rather, it affects their motivations
for forming such intent. Brief for 290 Criminal Law and Mental Health Law Professors as Amici Curiae
12. For example, the American Psychiatric Association tells us that individuals suffering from mental illness may experience delusions—erroneous perceptions of the outside world held with strong conviction. They may believe, incorrectly, that others are threatening them harm (persecutory delusions), that God has commanded them to engage in certain conduct (religious delusions), or that they or others are condemned to a life of suffering (depressive delusions). Brief for American Psychiatric Association et al. as Amici Curiae
25–26. Such delusions may, in some cases, lead the patient to behave violently. Id.
at 28. But they likely would not interfere with his or her perception in such a way as to negate mens rea
. See H. R. Rep. No. 98–577, p. 15 n. 23 (1984) (“Mental illness rarely, if ever, renders a person incapable of understanding what he or she is doing. Mental illness does not, for example, alter the perception of shooting a person to that of shooting a tree.”).
Kansas’ abolition of the second part of the M’Naghten
test requires conviction of a broad swath of defendants who are obviously insane and would be adjudged not guilty under any traditional form of the defense. This result offends deeply entrenched and widely recognized moral principles underpinning our criminal laws. See, e.g.
, National Comm’n on Reform of Fed. Crim. Laws, Final Report, Proposed New Fed. Crim. Code §503, pp. 40–41 (1971) (to attribute guilt to a “manifestly psychotic person” would “be immoral and inconsistent with the aim of a criminal code”); H. R. Rep. No. 98–577, at 7–8 (“[T]he abolition of the affirmative insanity defense would alter that fundamental basis of Anglo-American criminal law: the existence of moral culpability as a prerequisite for punishment”); ABA Criminal Justice Mental Health Standards §7–6.1, pp. 336–338 (1989) (rejecting the mens rea
approach “out of hand” as “a jarring reversal of hundreds of years of moral and legal history” that “inhibits if not prevents the exercise of humane judgment that has distinguished our criminal law heritage”).
By contrast, the rule adopted by some States that a defendant must be acquitted if he was unable to appreciate the legal
wrongfulness of his acts, see ante
, at 20–22, would likely lead to acquittal in the mine run of such cases. See supra,
at 17. If that is so, then that rule would not pose the same due process problem as Kansas’ approach. That issue is not before us, as Kansas’ law does not provide even that protection to mentally ill defendants.
Kansas and the Solicitor General, in their efforts to justify Kansas’ change, make four important arguments. First, they point to cases in this Court in which we have said that the States have broad leeway in shaping the insanity defense. See Leland
343 U.S. 790
548 U.S. 735
. In Leland
, we rejected the defendant’s argument that the Constitution required the adoption of the “ ‘irresistible impulse’ ” test. 343 U. S., at 800–801. Similarly, in Clark
, we upheld Arizona’s effort to eliminate the first part of the M’Naghten
rule, applicable to defendants whose mental illness deprived them of the ability to know the “ ‘nature and quality of the act,’ ” 548 U. S., at 747–748. If Arizona can eliminate the first prong of M’Naghten
, Kansas asks, why can Kansas not eliminate the second part?
The answer to this question lies in the fact that Arizona, while amending the insanity provisions of its criminal code, did not in practice eliminate the traditional insanity defense in any significant part. See 548 U. S., at 752, n. 20 (reserving the question whether “the Constitution mandates an insanity defense”). As we pointed out, “cognitive incapacity is itself enough to demonstrate moral incapacity.” Id.
, at 753. Evidence that the defendant did not know what he was doing would also tend to establish that he did not know that it was wrong. Id.
, at 753–754. And Prosecution One (he thought the victim was a dog) would still fail. The ability of the States to refuse to adopt other insanity tests, such as the “irresistible impulse” test or the “product of mental illness” test are also beside the point. See Leland
, 343 U. S., at 800–801. Those tests both expand
’s principles. Their elimination would cut the defense back to what it traditionally has been, not, as here, eliminate its very essence.
Second, the United States as amicus curiae
suggests that the insanity defense is simply too difficult for juries to administer. Brief for United States as Amicus Curiae
12–13. Without doubt, assessing the defendant’s claim of insanity is difficult. That is one reason I believe that States must remain free to refine and redefine their insanity rules within broad bounds. But juries have been making that determination for centuries and continue to do so in 45 States. And I do not see how an administrative difficulty can justify abolishing the heart of the defense.
Third, Kansas argues that it has not abolished the insanity defense or any significant part of it. It has simply moved the stage at which a defendant can present the full range of mental-capacity evidence to sentencing. See Brief for Respondent 8; ante
, at 4–5. But our tradition demands that an insane defendant should not be found guilty in the first place. Moreover, the relief that Kansas offers, in the form of sentencing discretion and the possibility of commitment in lieu of incarceration, is a matter of judicial discretion, not of right. See State
, 298 Kan. 765, 316 P.3d 724 (2014). The insane defendant is, under Kansas law, exposed to harsh criminal sanctions up to and including death. And Kansas’ sentencing provisions do nothing to alleviate the stigma and the collateral consequences of a criminal conviction.
Finally, Kansas argues that the insane, provided they are capable of intentional action, are culpable and should be held liable for their antisocial conduct. Brief for Respondent 40. To say this, however, is simply to restate the conclusion for which Kansas argues in this case. It is a conclusion that in my view runs contrary to a legal tradition that embodies a fundamental precept of our criminal law and that stretches back, at least, to the origins of our Nation.
For these reasons, with respect, I dissent.
plus volitional incapacity
Model Penal Code