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Nearly 300 law professors sign Supreme Court amicus brief co-authored by Prof. Morse arguing against abolition of the insanity defense

October 07, 2019

In the Supreme Court case, Kahler v. Kansas, Petitioner seeks to overturn the Kansas Supreme Court’s decision permitting abolition of the state’s insanity defense. University of Pennsylvania Law School Professor Stephen J. Morse and University of Virginia School of Law Professor Richard J. Bonnie have co-authored an amicus brief on behalf of criminal law and mental health law professors arguing that the defense is legally and morally necessary and should be constitutionally required. 290 criminal law and mental health law professors signed the brief.

Morse, a widely respected expert on the impact of mental health on criminal responsibility, is the Ferdinand Wakeman Hubbell Professor of Law, a Professor of Psychology and Law in Psychiatry, and the Associate Director of the Center for Neuroscience & Society at Penn. Bonnie is the Harrison Foundation Professor of Law and Medicine and a Professor of Psychiatry and Neurobehavioral Sciences at the University of Virginia. 

James Kahler shot and killed his wife, two of his three children, and his wife’s grandmother. Kahler’s expert witness testified that Kahler had exhibited symptoms of multiple forms of mental illness, and the defense argued that as a result, he had not made a “rational choice” to commit the murders, and thus was not legally culpable. However, under a Kansas statute passed in 1995 and previously upheld by the Kansas Supreme Court, the affirmative defense of legal insanity had been effectively abolished, and the jury was only permitted to consider a mental disease or defect to the extent it indicated “that the defendant lacked the mental state required as an element of the offense charged.” Kahler was convicted and the Kansas Supreme Court affirmed the conviction on appeal, rejecting his constitutional challenge to the statute.

Morse and Bonnie’s amicus brief addresses the question of whether the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense. They argue that some form of insanity defense is required by the Constitution.

“The affirmative defense of legal insanity has such a strong historical, legal, moral, and practical pedigree and is so widely accepted that providing such a defense is a matter of fundamental fairness in a just society,” they write. “Punishment under the penal law is not justified unless an offender can fairly be held criminally responsible for his conduct. There is no dispute that severe mental disorder can strongly affect an individual’s cognitive and self-regulation capacities and that in extreme cases, the defects are sufficiently grave to negate any attribution of fault because such offenders do not know, understand or appreciate the wrongfulness of their actions. Criminal blame and punishment are fundamentally unfair because such offenders are not responsible for their criminal conduct.” 

The group of law professors who signed the brief was bipartisan, Morse notes. “We had ex-prosecutors, people known to be prosecutorial in orientation, and also people from the defense side, including former defense attorneys, public defenders, and academics with a defense orientation.”

The brief’s argument proceeds in three steps, Morse explains: “First, some form of insanity defense is so rooted in our legal history and tradition that it’s a fundamental part of justice that defendants should be entitled to the defense, and it’s morally the right thing to do. You shouldn’t be convicting people who, at the time of the crime, were not morally responsible agents because they didn’t know right from wrong. Second, an insanity defense should be required unless some alternative form of [addressing] the effect of mental disorder on criminal behavior would create equal justice,” and no satisfactory alternative exists. Third, “given the importance of the defense historically and morally, and given that there is no alternative that is  workable, the criticisms of the insanity defense are much too insubstantial to be sufficient to justify abolition.”

This is the second Supreme Court amicus brief Morse and Bonnie have co-authored on the insanity defense. The first such brief, submitted in Delling v. Idaho in 2012 and urging the Court to grant certiorari, argued that Idaho’s abolition of the defense violated the Due Process Clause and the Eighth Amendment. 52 law professors signed. However, the Supreme Court declined to grant certiorari in the case.  Justice Breyer wrote a dissent from the denial that cited the law professors’ brief. 

Morse and Bonnie filed their amicus brief in Kahler v. Kansas on June 6. Read it here.

Oral argument is scheduled for October 7.