What Happened in Kahler v. Kansas?

Posted in: Criminal Procedure

In Kahler v. Kansas, the U.S. Supreme Court held that Kansas acted lawfully when it limited the role of mental disorders in excusing criminal conduct to cases where a disorder helps show that a defendant lacked the required mens rea. I have written about Kahler here and here. Though the Court characterized Kansas as having permissibly replaced one type of insanity defense with another, it is clear that Kansas actually abolished the defense altogether, with the Court’s ex post blessing.

One of the issues that arose in Justice Stephen Breyer’s dissenting opinion has to do with when a lion and an insane person resemble each other in their respective culpability for violent acts. The lion gives us insights into how people think about humans and human obligations toward other species in the animal kingdom.

In this column, I will explain the difference between substituting one insanity defense for another, on the one hand, and abolishing the insanity defense, as the Court’s decision permits Kansas to do, on the other. I will next explain how Justice Breyer, in his dissenting opinion and perhaps inadvertently, betrayed his view of what our responsibilities might be toward other animals.

Various Insanity Defenses and What They Share

I won’t outline all of the past and present insanity defenses here but will just mention some of the main ones. One is the M’Naghten test, versions of which provide that a defendant whose mental disorder precludes either his understanding the nature and quality of his act or his appreciation of the moral or legal wrongness of his act has an excuse to the crime charged.

The first part of the test is cognitive. If a person’s mental disorder leads him to believe that a toddler holding a bottle and running toward him is actually a gigantic mosquito flying at him with an unsheathed sword, then the person who kills the toddler does not understand the nature and quality of his act.

The second, alternative, part of the test is normative. A person whose mental disorder disrupts the ability to distinguish right from wrong and thus to determine that murder or robbery or some other crime is immoral, is one kind of person who qualifies for the defense. Another is the individual whose mental disorder precludes his ability to distinguish between legally right and legally wrong (i.e., legal and illegal) conduct.

An example of the first normative category is the woman who suffers from a delusional disorder that leaves her thinking she should drown her five children in order to protect them from hell and damnation. She understands what she is doing when she drowns the kids. She knows that each of her children is a living being in her care and that submerging their faces underwater for an extended period of time will kill them. Her delusional disorder accordingly hides nothing from her with regard to the nature and quality of her act, what she is doing, to whom, and under what circumstances. But she does not comprehend the wrongfulness of her contemplated actions. On the contrary, she believes them to be righteous because her delusion tells her they are.

One category of patients who, due to their disorder, cannot distinguish between right and wrong, are psychopaths, sociopaths, or people with antisocial personality disorder. Such individuals may be aware of what actions society regards as wrongful, but the knowledge is theoretical or cognitive, coming from reading and hearing about social mores and not from the internal recognition that most people have as a matter of conscience.

For an analogy, consider a dentist’s caution after an anesthetized procedure to refrain from biting off your own tongue. Ordinarily, you can rely on the pain receptors on your tongue to prevent you from severing it, but when the dentist has numbed your mouth, you must take extra steps to avoid biting down because pain will not protect you from yourself. Likewise, a psychopath cannot rely on her own internal moral compass—her conscience—to tell her that deliberately causing pain or distress to others is wrong. She will not feel guilty, for example, if she throws stones at a cat who then yowls in pain. She needs something more than her own internal sense to protect potential victims from her.

Though psychopathy (and its alternative synonyms) prevents a person from understanding right from wrong, some states have nonetheless placed the condition beyond the reach of the insanity defense.

In a fourth category of insanity, a person, because of a mental disorder, cannot tell the difference between legally right and legally wrong. The condition thus makes it impossible for the patient to distinguish between lawful and unlawful acts. This category is somewhat puzzling, given that ignorance of the law is so rarely a defense. We hold people accountable for violating the criminal law so long as they knew what they were doing, had the specified mens rea, and (if the crime contains a result element) caused the statutorily included result. Given the immateriality of knowing what is and is not legal, it perhaps should not matter whether you don’t know marital rape is wrong because you are unfamiliar with the law or whether you don’t know marital rape is wrong because you are ignorant of the law and you suffer from a mental disorder that prevents your brain from telling you that forcing sex upon a spouse is evil. Either way, ignorance of the law is no excuse.

For the above and other defenses, one may meet the criteria for guilt with respect to a particular crime but then be able to prove insanity and get an acquittal by reason of that insanity. Thus a delusional uncle who shoots his five nephews to death because he believes he is allowing for their peaceful reincarnation satisfies the guilt criteria because he intends to kill his nephews, he takes the steps involved in doing so, and he causes the children to die. Yet he may be able to take advantage of the insanity defense if he can show he suffered from a delusional disorder that undermined his ability to distinguish right from wrong. That is how an insanity defense typically works, as an affirmative defense that the defendant demonstrates after the government has proved its case. This means that although the defendant meets the guilt criteria, additional facts help her to avoid a conviction.

The mens rea alternative available in Kansas does not do any of that. It says instead that if a person’s mental disorder bears on his lack of the mens rea necessary to commit the criminal act, then and only then does the mental disorder provide for an acquittal. But of course, even unmodified, if a person must intend the act in order to be guilty of the crime, then one who is incapable of intending the act necessarily avoids a guilty verdict. If you can’t do something, then you necessarily didn’t do that thing and therefore don’t meet the criteria for guilt in connection with the offense. To offer only the mens rea alternative is therefore to reject the insanity defense, which would be available to people who otherwise check all the boxes, the elements of the offense.

One can argue for hours about whether or not there ought to be an insanity defense. But the Supreme Court’s view, that the mens rea “alternative” is an insanity defense, is just wrong. It would be like saying that the following are cures for COVID-19: medicine A, medicine B, medicine C, or not becoming infected in the first place. The difference between the first three and the fourth is not merely semantic. If the only response to a disease is not catching it, then we have no cure for the disease. Sick people are condemned to experience the course of the illness without treatment. Not having the disease at all is, of course, nice, but it in no way offers a treatment to those who do have it. A mens rea defense is simply an instance of not having the disease: if you lack the mens rea for an offense, whether because of a mental disorder or for some other reason, then you are not guilty of the offense because the prosecution has not proven the elements of the crime. If the prosecutor has proved the elements of the crime but you can achieve an acquittal by proving you are insane, then you have an affirmative defense, a cure for the disease (the disease being guilt on all of the elements). The majority regards the Kansas mens rea defense as simply another insanity defense: “Kansas has an insanity defense negating criminal liability—even though not the type Kahler demands.” The majority is wrong.

One could, of course, go even further than Kansas has done to try to block evidence of mental disorders from playing any part in a criminal defendant’s defense. A state might, for example, provide that evidence of mental disorder shall be inadmissible to prove the mens rea element of a crime. The Supreme Court upheld an arguably similar substantive/evidentiary block in Montana v. Egelhoff. Yet it does not follow from this harsher possibility that the mens rea defense is an insanity defense. It just shows that in addition to abolishing insanity, it is also possible to rule out mental disorder evidence as completely inadmissible. In Kansas, mental disorder evidence is admissible on the question of mens rea but plays no part in an affirmative defense based on insanity.

Are Lions Evil?

In Mind If I Order the Cheeseburger?, a book I wrote to respond to questions people often ask vegans, one of my chapters addresses a question that comes up with surprising regularity: If killing animals to eat them is wrong, then doesn’t that mean lions are immoral? After all, if animals are equal, and humans commit a moral wrong when they consume slaughtered animals, then isn’t the lion similarly immoral for doing the same? If you want to know the answer (spoiler alert: no, lions are not immoral because equality does not entail equal culpability), you can buy the book 🙂 or read the entertaining, accessible, and unimpeachable chapter, available here. Justice Breyer’s Kahler dissent seemed to pick up on the theme of why the mens rea alternative is not an insanity defense. He wrote that “[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.”

Note the negative implication of these words. If the reason for the lion’s innocence is just the fact that the lion does not know better, then humans who do know better have a moral obligation not to do the same thing. From talking about a lion’s violent acts in these terms, it plainly follows that it is in fact immoral to kill other animals, and the lion simply lacks an awareness of that moral fact. It is wrong to kill an animal in order to eat him, and those with moral agency have an obligation not to do violence to other animals.

Do I believe that Justice Breyer intentionally endorsed veganism here? No, I do not. However, when people are reasoning about something unrelated to ethical veganism, like the insanity defense, they can free themselves to discover new moral propositions. They do not feel as wedded to morally arbitrary and off-topic propositions like “all animals eat animals [no, they do not]” or “humans have always relied on animal protein [no, they have not] and should therefore continue to do so” or “my religion requires me to eat animal products [not if you’re Jewish, Christian, Muslim, Hindu, Buddhist, or Jain].” They can think less defensively about animals’ lives and suffering because they’re focusing on the morality of the lion rather than on the immorality of the human.

In the parts of Kahler discussed here, we have seen the majority somehow miss the fact that a mens rea defense is not an insanity defense and therefore approve the abolition of insanity as a defense. But just as the majority missed the reality of what it was doing, the dissent inadvertently told us that eating animals is wrong and that those who have the moral agency to understand that it is wrong have a corresponding obligation to stop doing it. When we find a conflict between what people say they are doing and what they are actually doing, we ought to privilege the latter (the truth) over the former (denial). Insanity is now an optional defense, and at least one justice has begun to make the case for veganism.

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