Monday, November 26, 2012

Kansas' insanity law lives on

The U.S. Supreme Court denied certiorari this morning in Delling v. Idaho, a case that questioned whether it was constitutional under the Eighth and Fourteen Amendments for a state to not have an insanity defense.  The cert petition pointed out that only five states do not have an insanity defense - Kansas is one of those states.

It should be noted that Justice Breyer, Justice Ginsburg, and Justice Sotomayor all dissented from denial of certiorari.  One more vote, and the issue would have been before the Court.

This is an issue that arises often in Kansas.  Defendants often cannot appreciate the wrongfulness of their conduct (making them legally insane under the M’Naghten test).  But they are still prosecuted and convicted in Kansas because they were able to form the intent to commit a crime (e.g. - if they hallucinate a situation that requires self-defense - they could not appreciate the wrongfulness of their conduct, but they could still form the intent to kill or batter).  See State v. Bethel, 66 P.3d 840 (Kan. 2003), cert. denied, 540 U.S. 1006 (2003).  Thus, this is an issue that is ripe for litigation.

If you can show that a defendant is not sane under the M’Naghten test, but who still was able to form the applicable mens rea, make your record.  File a motion to dismiss arguing that that Kansas' failure to use the M’Naghten test violates the Eighth and Fourteen Amendments.  The legal argument is included right there in Delling's cert petition, and it is just as applicable to Kansas defendants as it was to Idaho defendants.  It may be your case that gets that fourth vote.

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