The art of the criminal system is drawing lines. For instance, the criminal system takes a lot of time in trying to draw the line between guilt and innocence. But in the words of Justice Frankfurter, “In law, as in life, lines have to be drawn. But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere. The line must follow some direction of policy, whether rooted in logic or experience. Lines should not be drawn simply for the sake of drawing lines.” Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558 (1942) (dissenting, Frannkfurter, J.)
Unfortunately, some states have arbitrarily drawn a line in the criminal system. In 1996 Kansas adopted the mens rea approach to the insanity defense which “allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense.” In a few words, Kansas drew a line in the criminal system that allowed people who had a mental disease or defect to be criminally punished. Kansas (along with Alaska, Idaho, Kansas, Montana and Utah) wants people to know that people with a mental disease or defect should be in prisons not in mental hospitals. Do not let that mental disease or defect fool you! Kansas says just because you are crazy you are still rational to justify criminal punishment.
Kansas wants the public to forget the deep-rooted principle of law that “[t]hose who are under a natural Disability of distinguishing between Good and Evil. . . are not punishable by criminal Prosecution whatsoever.” 1 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 2 (1739). The significance of this line from England is that “the Eighth Amendment’s ban on cruel and unusual punishment embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time the Bill of Rights was adopted.” Ford v. Wainwright, 477 U.S. 399, 405 (1986).
However, the prohibition against criminalizing the mental ill has older roots. Law-breakers suffering “mental disease . . . [are] not punishable for criminal acts.” Davis v. United States, 160 U.S. 469, 484-85 (1895). Also forget the ancient principle that for a system of criminal punishment to be just, there must be some measure of mercy accorded to those who cannot appreciate “right and wrong” or distinguish between “good and evil” because of a mental illness. Bernard Diamond and Anthony Platt, 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 (1966). As the American Bar Association has noted in its Criminal Justice Mental Health Standards, “[t]he Greek moral philosophers, at least as far back as fifth century B.C., considered the distinction between a culpable and nonculpable act to be among the ‘unwritten laws of nature supported by the universal moral sense of mankind.’” ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 324 n.8 (1989) (quoting B. JONES, THE LAW AND LEGAL THEORY OF THE GREEKS 264 (1956)). Likewise, “[a]ncient Muslim law, Hebraic law, and Roman law all sought to absolve the mentally ill of criminal responsibility.” Andrew P. March, Insanity in Alaska, 98 GEO. L.J. 1481, 1493 (2010).
But hey….why should history get in the way of throwing the mentally ill in prison? Well maybe because the moral purpose of the insanity defense is to implement society’s “judgment that individuals unable to understand or control their conduct deserve treatment, not punishment.” Stephen M. LeBlanc, Cruelty to the Mentally Ill: An Eighth Amendment Challenge to the Abolition of the Insanity Defense, 56 AM. U. L. REV. 1281, 1285 (2007). As the United States noted that it is a “humane principle, existing at common law” that offenders should be punished only when they exhibit “sufficient mind to comprehend the criminality or the right and wrong of such an act.” Davis v. United States, 160 U.S. 469, 484-85 (1895). In our criminal justice system, “a criminal sentence must be directly related to the personal culpability of the criminal offender.” Tison v. Arizona, 481 U.S. 137, 149 (1987).
Skip forward to America today. The issue of the insanity defense and guilt and innocence is before the United States Supreme Court. In Kahler v. Kansas the issue is whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. The Kansas Supreme Court upheld Kahler’s death sentence, rejecting his argument that the failure to allow him to raise an insanity defense violated the Constitution. The U.S. Supreme Court agreed to hear the case in March.
So where would you draw the line?