Tuesday, March 24, 2020

Due Process and the Criminal Law: A Few Thoughts on Kahler v. Kansas

By Orin S. Kerr - March 24, 2020 at 12:54AM

The Supreme Court has handed down Kahler v. Kansas, the case I blogged about before about whether a state legislature can effectively abolish the insanity defense. As I wrote last time, Kahler is a case about a fundamental question of criminal law: What are the constitutional limits of crime definition?  In a 6-3 ruling by Justice Kagan, joined by the Court's conservatives, the Court ruled that the Kansas law is constitutional. The gist of the Court's answer to that fundamental question is that there is a constitutional floor of state crime definition but that it's a very modest one.

I'll first explain the Court's reasoning, and then I'll offer some thoughts of my own on it.

I.  The Court's Reasoning

Here's the key passage that frames the Court's approach:

[A] state rule about criminal liability—laying out either the elements of or the defenses to a crime—violates due process only if it "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Leland v. Oregon, 343 U. S. 790, 798 (1952) (internal quotation marks omitted). Our primary guide in applying that standard is "historical practice." Montana v. Egelhoff, 518 U. S. 37, 43 (1996) (plurality opinion). And in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions. See, e.g., id., at 44–45; Patterson v. New York, 432 U. S. 197, 202 (1977). The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. See, e.g., Clark, 548 U. S., at 752 ("[T]he conceptualization of criminal offenses" is mostly left to the States).

Under this standard, you look to the common law treatises and authorities and ask whether a particular legal rule is so "old and venerable — so entrenched in the central values of our legal system—as to prevent a State from ever choosing another."

Of course, the trick in applying that kind of standard is how much clarity and specificity is required before you say a particular rule is "entrenched." For example, the authorities may all agree that there is a particular doctrine, but they may disagree on the specifics of what the doctrine is. What then?

As I read the majority's opinion, the analysis effectively calls for two steps.  First, at the level of "broad principle," was the general doctrine historically established?  And second, is the specific rule challenged as unconstitutional within or outside the range of possible examples of that broad principle?

In Kahler, the Court agrees with the defendant on the first step.  According to the Court, it is indeed historically established at common law that there was a "broad principle"
that there is some kind of insanity defense,  "[F]or hundreds of years," the Court agreed, "jurists and judges have recognized insanity (however defined) as relieving responsibility for a crime."  Citations to Blackstone, Coke, and others then follow.

The problem comes with the second step.  According to the Court, Kansas's approach to insanity isn't out of bounds.  It fits within the broad principle established.  That's true for two reasons, the Court says.  First, Kansas has a type of insanity defense: The defense can put on evidence of mental illness to show that he lacked an element of the crime.  Second, Kansas law considers the principles of the insanity defense at the sentencing stage instead of at the crime definition stage.  Under Kansas law, defendants can offer evidence of mental illness to argue for a lesser sentence, and judges have the discretion to replace a prison term with a period of commitment in a mental health facility.

In the majority's view, Kansas's legislative scheme is enough to satisfy the general principle of having some kind of insanity defense.  It's enough because no one specific insanity rule was "so rooted in the traditions and conscience of our people as to be ranked as fundamental." The common law materials and later authorities have all agreed that there should be some way to deal with severe mental illness and criminal liability, but there isn't enough clarity about any one rule or specific principle to make that rule fundamental so as to prevent a state legislature from experimenting with a different rule.

Justice Breyer's dissent accepts the basic premise the of the majority's approach but argues that it has been misapplied.  According to Justice Breyer, there is a clear enough insanity defense rule according to the common law authorities. As Justice Breyer reads the history, the history establishes that defendants cannot be held criminally liable if, due to mental illness, they lacked the mental capacity necessary for their conduct to be considered morally blameworthy.

II.   A Few Thoughts on the Decision

First,  I think the majority's basic framework seems sensible.  The basic principles of the common law must be respected, but legislatures have a lot of discretion to implement those principles as they see fit.  Under this approach, the Court retains a modest role policing the boundaries but state criminal law remains a subject fundamentally up to state legislatures.  This seems about right to me.  (Although I recognize that others will not see things that way: The Court's deferential approach appeals to me as a longtime judicial-restraint fan, but I realize others prefer a more aggressive judicial role.)

Second, I was only half-persuaded by how the Court applied its approach.  The underwhelming half of the Court's argument was its idea that Kansas retains an insanity defense because defendants can put on evidence of mental illness to show lack of mens rea.  That's not an insanity defense: It's just not having special rules of offense when a defendant suffers from mental illness.

To call that an insanity defense strikes me as odd. Imagine a defendant is charged with failure to obey a police officer's order.  His defense is that he is deaf and did not hear the order.  Under ordinarily rules of criminal law, the defense is permitted to put on evidence that he is deaf and didn't hear the order.  But we wouldn't say that the law enacts a "deafness defense." Instead, we would see that as just the ordinary rules of liability.  The government has to prove the elements of the crime beyond a reasonable doubt, and that's true whether the evidence for or against those elements existing happens to involve mental health evidence (in Kahler) or evidence of deafness (in this example).

I was more persuaded by the second reason the Court offers, that the Kansas scheme allows evidence of mental illness to be used at sentencing.  Based on my quick review of the statute, Kansas normally has discretionary sentencing: the non-exclusive list of mitigating factors a sentencing judge can consider includes whether "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed."  And it does give sentencing judges some discretion to commit defendants to mental health facilities "in lieu of confinement or imprisonment."

I don't have a particular view of whether the Court was ultimately right or wrong to uphold the Kansas law.  I haven't looked closely at the history myself, and both sides agreed that the ultimate question was the clarity of the historical materials. But I was a lot more persuaded by the Court's second reason that the Kansas approach was sufficient than I was by its first reason.

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