MARY REICHARD, HOST: Good Monday morning to you. You’re listening to The World and Everything in It this 21st of October, 2019. I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Good morning to you!
Today we continue our coverage of oral arguments at the Supreme Court. And a warning for parents: this one has difficult details that may not be appropriate for young ones.
We have about a minute before we get into it and let’s just say we are talking about what ordinarily would be a capital crime case.
But something else about this case.
What Mary is going to tell you about today was actually the first case the justices heard this new term. And so because, Mary, you started with the LGBT cases, it wasn’t until you plowed through this first one that you learned about a new Supreme Court policy that just took effect.
REICHARD: Right, it lets lawyers talk for two whole minutes without interruption. That may not sound like much, but in reality it’s a big change. I can tell you of instances where, literally, the lawyer says, “Mr. Chief Justice and may it please the court …” and he or she is immediately interrupted. I can tell you about lawyers prepping statements and not being able to give them. It’s quite remarkable.
I remember Justice Clarence Thomas saying his southern sensibilities felt violated when lawyers could barely get a sentence out before being showered with questions. So he must be pleased.
I know I am, and it’s because I don’t have to splice audio so frequently to create a coherent statement!
EICHER: Ok, now let’s get to the background for our case today, an interesting question where crime and punishment, policy, state’s rights, and morality all come together.
The legal question asks whether a state can abolish insanity as a defense to a crime.
The insanity defense is an affirmative defense. It says, “yes, I did the crime,” but excuses culpability because of psychiatric illness.
REICHARD: Most states allow it. But after the jury verdict in 1982 that declared President Ronald Reagan’s would-be assassin, John Hinckley, Jr., not guilty by reason of insanity, a few states changed their laws to alter the use of insanity as a defense to a crime.
EICHER: Kansas was one of those states. There, a defendant can show evidence of mental illness to prove he didn’t intentionally commit the crime. But Kansas doesn’t allow someone to use that evidence to try to establish that he lacked rational capacity. That’s the part necessary to prove in order to hold him responsible for what he’d done.
REICHARD: To understand the difference, consider the horrific drowning of five children in 2001 by Andrea Yates, a case in Texas. A jury found her not guilty by reason of insanity. Yates admitted to killing her children. She tried to explain that she wanted to save them from eternal damnation as a result of her poor mothering.
So Yates admitted she did those crimes, but in Texas she could argue that psychiatric illness made her irrational, taking away her capacity to understand right from wrong.
EICHER: Right, but had Yates lived in Kansas, she’d have failed with that defense. That’s because in Kansas, she’d only be able to show her mental illness made it so she did not intend to kill her children. But she did intend to do it. She admitted that. So instead of a mental institution, she’d likely have been sent to prison in Kansas.
REICHARD: Now for the facts before the Supreme Court arising out of Kansas.
Kraig Kahler seemed to be happily married for years, but then things started to go south. His wife was unhappy and started an affair. She filed for divorce. Kahler became more and more upset, and unhealthy tendencies exacerbated as time went on: depression, paranoia, obsessive-compulsive disorder, among others.
Then in 2009 he drove to where his family was staying. He shot and killed his wife, their two daughters and his wife’s grandmother, in front of their son.
His trial lawyer argued Kahler’s severe depression meant he couldn’t understand reality, that he’d fallen into a dissociative state where he couldn’t control his actions.
But in Kansas, that’s not relevant. A jury imposed the death penalty on him after a two-week trial.
Kahler’s lawyer at the Supreme Court, Sarah Schrup, argued her client ought to be given a chance to make the case to the jury during the guilt phase of proceedings that he didn’t know right from wrong, not just at the penalty phase after a finding of guilt.
She faced lots of skepticism. Listen to Justice Samuel Alito:
ALITO: At the penalty phase he was able to argue, ‘I shouldn’t get a death sentence because I didn’t know that what I was doing was morally wrong.’ And you’d think that if the jury believed that, they wouldn’t have imposed the death penalty. But they did. I mean you have to keep in mind what he did. This is an intelligent man. He sneaked up on the house, where his wife and her mother and his children were staying. He killed his ex-wife. He killed her mother. He executed his two teenage daughters. One of them is heard on tape crying. He nevertheless shot her to death. Now, this is the stuff from which you’re going to make a defense he didn’t know that what he was doing was morally wrong, much less he didn’t know what he was doing was legally wrong?
Schrup pointed out that jurors typically decide culpability in the earlier guilt phase of trial, so waiting to consider mental state during the penalty phase is just too late to protect her client’s rights.
Justice Alito wasn’t having it. You’ll hear him mention the initialism DSM. He’s referring to the Diagnostic Statistical Manual of Mental Disorders.
ALITO: If that were the general rule in criminal law that you cannot be convicted if you believe that what you’ve done is moral, that would revolutionize criminal law. Is it sufficient if the person has something that is considered to be a mental disorder in the DSM? And it has been calculated that one in five people in the United States has some mental disorder. So we’re talking about 60 plus—60 million plus people. All of them could go to the jury on the question of whether they had the capacity to know that what they were doing when they committed the crime was morally wrong.
SCHRUP: Justice Alito, they should be given the opportunity to at least try. This shouldn’t be legislatively cut off at the knees.
Schrup argued that history is on her side since the 1500s. That Kansas is the outlier violating her client’s due-process rights.
Justice Elena Kagan posed a provocative question about changing times.
KAGAN: I could give you some ways in which the criminal law of olden times seems remarkably archaic to us now: marital rape exception, maybe sodomy laws. I’m sure that there are others that I could list. You know, what does due-process require we hang on to, notwithstanding changing times?
Schrup replied fundamental fairness as practiced in the majority of states is what due-process requires. And besides that, this particular defense is rare. It’s not as though the floodgates would open if the insanity defense were again permitted in Kansas.
SCHRUP: It’s invoked in less than 1 percent of the cases and successful in only a quarter of that. We’re not talking about a huge number of people. But for the people that it really matters, there is no mechanism in these states to protect them.
When the solicitor general of Kansas got up to defend Kansas law, Justice Sonia Sotomayor was the skeptic.
SOTOMAYOR: You’re saying the same thing with something like duress: I intend to kill someone, but it’s because somebody’s holding a gun to my head. All 50 states would let you off. But you’re now saying it’s ok to stigmatize you with a criminal conviction even though in fact you may be insane.
Stigma or not, Crouse countered that the deep roots of history are actually on his side, because up until the 1800’s, criminal intent was the crucial inquiry, not mental illness, as the other side is saying.
Then Justice Stephen Breyer spun out one of his scenarios, designed to distinguish close matters of mental state. In Kansas, someone who shot a person thinking it was a dog wouldn’t be guilty of murder.
But with a slight twist, Justice Breyer highlighted a conundrum. Here’s his lengthy exchange with Kansas solicitor general Crouse that I’ve edited for clarity:
BREYER: Imagine two defendants. Both defendants, 1 and 2, are certified by whatever board of psychiatrists you want as totally insane. All right? The first defendant shoots and kills Smith. The second defendant shoots and kills Jones. The first defendant thinks that Smith is a dog. The second defendant knows it’s a person, but thinks the dog told him to do it. Okay? What’s the difference?
CROUSE: So I think that’s—the difference is criminal intent in the first situation because, as I understand the hypothetical, the individual intends to commit a crime against a human being.
BREYER: But I’m looking for something different between the two defendants. The dog, he told me to do it. They are both crazy. And why does Kansas say one is guilty, the other is not guilty?
CROUSE: So I — I think that this Court’s cases have historically allowed legislative bodies—
BREYER: I don’t care what the cases say at this moment. I’m interested in a practical pragmatic purpose in why the law should treat cases differently. Same question, I’ve just now repeated it three times, and I am listening for your answer.
CROUSE: The problem is that states have grappled with this and they’ve made different moral judgments as to who is morally responsible or not. And this Court’s cases allow the state legislatures or federal Congress to determine whether that person should be or should not be held responsible.
The federal government argued in support of Kansas. Listen to assistant to the Solicitor General Elizabeth Prelogar warning the high court not to create more problems.
PRELOGAR: There would still be a question of how you define who is the insane. That’s a legal concept. It’s one that’s yielded no single formulation. And I think for this Court to try to articulate a theory of moral culpability could throw into question state laws across the nation that are trying to make these difficult judgments.
As for Kraig Kahler, questions from the justices did not seem to lean in his favor. Justice Kagan noted that even in states where the insanity defense is permitted, Kahler would not be found insane. His own expert noted how he had a manipulative personality, asking him how to answer questions to mitigate his sentence.
If a majority rules in favor of Kahler, it’ll affect only the four states that got rid of the insanity defense. But a decision in favor of Kansas could serve to encourage other states to do the same thing.
The justices must balance competing interests: state discretion in criminal matters versus err on the side of protecting the mentally ill.
And that’s this week’s Legal Docket.