Kansas does not allow t last week justices heard oral argue ncase of a man convinthed of killing his wife, two teenage daughters, and motherinlaw. His attorney argued he had meantal disorder. The state Supreme Court upheld the verdict but Defense Attorneys apealed. The nations highest court will now decide the case. Well hear argument first this term in case number 186135, kahler versus kansas. Mr. Chief justice, may it please the court. For centuries criminal pull pabblet has hinged on the capacity for moral judgment. To discern and choose between right and wrong. The insane lack that capacity. This understanding of insanity has persisted since the 1500s and remains the rule in 48 jurisdictions today. A kansas moral hypocrisy from the criminal law and the 14th and 8th amendment. Kansas rewrites history in two ways. By elevating the test one never used in this country and only rarely in england, and secondly by conflating common law intent which was a vicious will and bound up in moral capacity. A morality free as such kansas uproots the deeply rooted by eliminating any mechanism to assess whether a defendants capacity for moral judgment was intact or was irretrieveably compromised by Mental Illness. Id like to turn briefly to due process first and explain the moral capacity notion is an always has been fundamental in our system. The model penal modern penal code is an example. As criminal law evolved, the drafters moved to more precise mental states. When they did that, though, they retained the compelling mechanism to show insanity. We could do that, the drafter said, because we kept this, this narrow remnant of common law criminality. This court recognized both the presumption of sanity and evidence of insanity. This demonstrates the continued need for a mechanism to rebut the presumption of sanity even , when even though a defendant harbors the requisite mental state. It was not only the mechanism that was important in clark that substance was, too. This court said, arizona could do that, it could eliminate the first part of the test, because it kept this. The right and wrong principle that subsumes t id like to turn back the history because before you do that. You are relying on due process. Suppose a state decides it wants to rethink the insanity defense. It looks to other nations for models. Justice ginsburg one is whats known as the judgment of guilty but insane. That is two determine nantz are made. Did the defendant do the act with which hes charged. Thats the first question. And the second question is, what is the proper incapacitation . Guilty but insane would lead to incapacitation in a Mental Institution, guilty and not insane would lead to incarceration in prison. Would such a scheme, if adopted by a state of the United States, violate due process . Yes, it would. I think it would because the conviction itself carries collateral consequences. We have never as a country treated the insane as culpable. At conviction would impose collateral consequences on the Insane Person who should be excused. I would have thought you would want collateral consequences imposed as i understood your submission because the idea that someone acquitted by reason of insanity would not go free. Would instead be committed to mental care. Yes, thats right, your honor. Justice roberts would wouldnt that if the system that Justice Ginsburg was talking about guilty but insane i dont understand thats the course you are looking for . I want to rewind because really what we are talking about is the mechanism to be able to show that you lack moral capacity. The back end of it is long as long as you have the mechanism to show you lack moral capacity, that you can choose right from wrong or cant, the ultimate result is not all that determinative. If guilty but insane means that you if you end up in exactly the same place, then i suppose the label doesnt matter, but what im nervous about is if you have a guilty but insane some of those statutes in some jurisdictions are youre guilty, you go and get treatment, and then once Justice Ginsburg the hypothetical is the question of whether the person is incarcerated is determined second. It has no collateral consequences. You are found to have committed the conduct charge, but because you are insane, you go to a Mental Institution. So it would take out any collateral consequences that would label you on the criminal side. You have committed the the deed you were charged with but insane. Therefore you go to Mental Institution. That you think would violate due process . To the extent i guess i would go back to history on this. What we know is these people were not even subject to prosecution at all. Hawkins in his plea of the crown said so. If the mechanism as long as the mechanism for the defendant to present his lack of moral capability, at the back end if the regime protects him in that way. I also disagree, your honor, that the conviction doesnt stigmatize or show that he is guilty. If you are found guilty you have that conviction. I do think that the sane need mental treatment. They need commitment. Unless im missing your point, i believe its more about the mechanism and not allowing a convings of an Insane Person. You are talking about lack of moral capacity. Would it be inconstitutional if a state said that a person is sane if the person knows that the act is illegal even if the person thinks that the act is moral. The right and wrong principal, your honor, includes both knowledge of legal wrong and knowledge of moral wrong. There is very little light between the two. Justice alito someone can know something is illegal but feel very strongly that it is moral. Whats the answer to my question . Justice alito, its not about a belief. Its about a capacity fueled by Mental Illness. If a person justifies or believes that they are justified in acting in that way, they are not covered by this baseline standard. Justice alito what if if the person has the capacity to know by what he did was a violation of the criminal law, and thats the defense that is provided by a state, is that unconstitutional . No. So long as it encompasses it cant just be that you are you forget what criminal law is. What justice said in the dissent from the denial of sert in telling is what legally wrong means, it still falls within the right and wrong principlele, what that means is you are unable to comprehend the actual nature of the act such you believe for example you are falling into a defense. Justice alito there are many, many people who believe not so much for murder but certainly for a lot of other offenses that things that are violations of the law are nevertheless moral. So if that were the general rule in criminal law that you cannot be convicted if you know that if you believe that what you have done is moral, that would revolutionize criminal law. The only element that you are adding to that is that this is caused by a mental disorder. It becomes important to understand what you mean by mental disorder. What do you mean by a mental disorder . Do you mean everything thats listed as a mental disorder in the latest edition of the d. S. M. . Your honor, its not about the diagnosis. And you asked what mental capacity means and what Mental Illness means. I can put it this way. It is as if a person its not about a belief. Its not about justifying. Its about you actually cant tap into the part of yuffer brain that allows you to choose right versus wrong. Juries have in 48 jurisdictions been able to make this distinction regardless of what the diagnosis is. Justice alito what is the answer to my question . Is it sufficient if the person has something that is considered to be a mental disorder in the d. S. M. . Its been calculated that one in five people in the United States has some mental disorder. We are talking about 60 millionplus people. All of them can go to the jury on the question of whether they have the capacity to know that what they were doing when they committed the crime was morally wrong. Justice alito, they should be given the opportunity to try. They shouldnt be lenlively cut off at the knees. There are many mechanisms in place in our trial system, many hoops. If they have a meptal disease thats diagnosed they should be able to get in the door and get evaluated and then proceed can i ask you about a premise of your argument and its that if we look to history and if history supports what you say, then we are obligated to go with it now. I just want to ask how and why thats so. Justice kagen there are many ways in which understandings of criminal culpability change over the years. And how do we figure out which are the ones that the constitution requires stay the same now as they were back in the common law or back at the founding or back in 1868 depending on which date you are using, and which ones can change . What do we do . We are not stuck with all of history, are we . If we are not stuck with all of history, why are we obligated to keep this part of it . Well, your honor, because thats test this court has set out for due process. You can go back as far as you want. But by the 1500s we know that this was an intact principle. Justice kagan the test set up by this court for due process 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. Im sure that there are others that i could list. What does due process require that we hang on notwithstanding changing times . I guess what what is the due process clause require that we hang on to notwithstanding the judgment of some states that the time for this has come and gone . We actually have sort of a perfect we have not only the history that goes back maybe 1,000 years and certainly since the mid 1500s, we also have the modern practice. A fundamental rule of fundamental fairness currently in operation in 48 of 53 u. S. Jurisdictions. Its not just the history. Its the fact we look and everyone has retained it or nearly everyone has retained it. Justice ginsburg with respect to history, can we take into days at he reality old common law, the result of the insanity defense would be you would think to bedlam where the conditions were often far worse than in prison. Someone might decide, no, im not going to plea insanity because then ill end up with an incarceration worse than prison. Do we take that into account in deciding the function of the insanity defense . I dont think you need to take it into account. What the fundamental principle is is that the good and evil principle, the right and wrong principle as applied to the insane, its the application to the insane that is deeply rooted in our country. And where those people in todays time, those people wouldnt be sent there. We know that those people are sent to an institution. No, i dont think its how they are historically. They ended up in a lot of places. Sometimes they were released to their families. I think underlying a lot of the debate is the exexpansive notion of what counts as evidence. In your brief you say the Justice Roberts you say the defendant in this case was this is evidence to support his insanity claim was described by some as a tight wad who would, for example, borrow rather than purchase tools. In the same page, this is evidence that you selected to put in your brief of his mental disorder, that he thrived on selfimportance, community prestige, and being perceived as having an ideal or perfect marriage. Maybe thats not the best way to order your life, but if thats what you mean by insanity, you can understand why that might cause some reservations. Your honor, mr. Chief justice, let me tell you why those facts are in there and why they are not why they are there. That will shed light on it. What we know is mr. Kahler had a major depressive disorder. Had he a qualifying Mental Illness. Those facts are there to show there was an entire other category of evidence that in combination with that major depressive disorder could have been developed. Justice roberts he borrow tools instead of purchasing them . That sounds like the reasonable option. [laughing] mr. Chief justice, you cant take that one fact out of context. The most important thing is that juries are able to take the collection of evidence and that is presented to them and decide, they decide whether the person is insane. Whether they have the capacity for moral judgment or not. Justice ginsburg what would be put before the jury . What now, what evidence in this record would you point to to show that hes unable to tell right from wrong . What evidence is there he was unable to make that distinction . On the Current Record which was not developed with a right and wrong principle, i would point you to the joint appendix at 87 where his expert said he couldnt rule out shortterm disassociation. If you are off line in that way, he couldnt appreciate right versus wrong. I would like to point out he was not even given the opportunity to put forth that and to develop other evidence that would have shown more force fully that he didnt. He had the opportunity and every incentive to do that at the penalty phase. At the penalty phase he was able to argue i shouldnt get a death sentence because i didnt know that what i was doing with a morally wrong. Justice alito if you think the jury believes that they wouldnt have imposed the death penalty. But they did. We have to keep in mind what he did. This is an intelligent man. And he sneaked up on the house. Where his wife and her mother and his children were staying. He killed his exwife. He killed his her mother. He executed his two teenage daughters. One of them is heard on the tape crying. He nevertheless shot her to death. He spared the son because he didnt think the son was siding with the mother. Then he ran away and turned himself in the next day. This is the stuff from which you are going to make a defense he didnt know what he was doing was morally wrong much less he didnt know what he was doing was legally wrong . Justice alito, ill answer the first part. Sentencing is not a substitute because we know from the briefs that juries make up their mind at the guilt phase. A dissenting justice in the opinion blow said we should not let what happens at guilt indicate what happens at sentencing. Because he locked that, the jury lost that lens to consider, the moral capacity principle, you cant draw any it would be speculative to say what the capital jury would have cited. Justice alito well now i have convicted this guy. I found him guilty. Having done that, even though i think that he didnt know what he was doing was morally wrong, i am going to vote to impose the death penalty. Is that realistic . It is because we know from the brief that jurors are swayed by what they decide at the guilt phase. If they lack the mechanism and opportunity to look through the lens of capacity for moral judgment, then we cant draw any conclusion abouts that. The facts are hard in every case. They are hard in this case. But what we are talking about is an opportunity, mechanism, for all defendants to be able to get into this threshold and let a jury decide Justice Alito you have referred several times referred several times to the jury. One of the debates is the capacity of juries to be able to paragraphs these fine concepts. One of the things that leading scholars have said is that this may be beyond the capacity of jurors to do. Justice kavanaugh why cant a state say as Justice Alito points out, we are going to take this away from the jury as a separate defense, put it in a menserea and as Justice Ginsburg points out have it considered at sentencing. Why is that an unreasonable policy judgment. So unreasonable to violate due process . Two points, Justice Kavanaugh, the critiques of the debate were not about evolution. They were not about scrapping the definance enthrire. Those should be handled through instructional mechanisms. Justice kavanaugh one of the debates was about putting it nto a mensrae defense as kansas has done in part because the concept as a separate defense was too confusing for jurors. Professor goldstein pointed that out in his book. That has been part of the debate. They havent necessarily abolished the insanity defense. I think thats a misnomer. They have punled it into mens raya mensrae and said it may be considered at sentencing. They have acknowledged they have abolish. What is present in the mensrae approach is nothing more than what is required. We know its not sufficient because it doesnt allow, it doesnt allow a jury or the defendant to raise his capacity for moral judgment. Which if you go back through history was an important do you have any information about how this works in the 46 states that have the rule that you prefer . In other words, how often do people raise insanity defenses . How often do juries actually find insanity . If this were in one of the other 46 states, how would it operate . Justice kagan honestly you can cant say this but i can. None of these 46 states im guessing would would your client be found insane. What happens in these 46 states . How often are people found insane . Justice kagan, its not record. I have done some research. I could let you know what i found out. Its not contained in the record. I do know it is raised in the right and wrong states and there are acquittals every year. One other question about the extent of how far this goes. Obviously this is a capital case. How far down the road would you say this defense must be extended as a matter of due process . Justice gorsuch to all homicides, to all felonies, where do you think the line would be drawn . I dont think you draw the line, justice gorsuch, as punishment. Justice gorsuch insanity defense is required with respect to any criminal complaint, even a regulatory strict liability misdemeanor . This court has never its our position we are making its our position it should be applied everywhere. But this court has never definitively ruled on the extent of strict liability terms. I think it could carve that out. Whats important are two things. First of all this is a rarely used defense. Its invoked in less than 1 of the cases and successful in only a quarter of that. We are not talking about a huge number of people. For the people that really matters, there is no mechanism in these states to protect them. To let them be excused or to let the jury consider their actual culpability when they cant tap into their brains in the way other people can. I think jurors are able to decide that. They decide the term reasonness all the time. If a state adopt the the irresistible impulse defense is that unconstitutional . The court in leyland said thats not a constitutional force. Not whether its required. Would that be unconstitutional . Because it does not ask whether the person Justice Alito ask whether the person knew right from wrong. I would like to turn briefly to the eighth amendment. The original Public Meeting of meaning of that term it would be cruel and unusual to punish the insane. In 1868 when the reconstruction amendments were adopted every single jurisdiction had an an insanity defefpblets even if you go back to 1791 it would have been cruel and unusual to punish the insane. They were either handled outside the Legal Process or come in and plead and prove insanity. The eighth amendment was intended as a check on sovereign power. Tates are simply not free to legislate redefine culpability in way thats inconsistent with history and longstanding practice that. Is what kansas has done here. It is an outliar. It ist prevents people by taking away the mechanism, they ensure that insane people will be punished in their borders. Justice ginsburg they didnt reach that question. So you are asking us to decide it as a matter of first impression. No, Justice Ginsburg. This was vetted at the sert stage. I would point this court to the addendum to our reply page 18 and 19. There its clear this notion of applying wrongfulness to the insanity defense came up in orel argument was argued and in that memo counsel said we believe this issue is presented. If you want supplemental briefing well provide t we believe it is an issue impliesity in this courts rulings. What do you do with the statement of Justice Marshal for plurerality. Nothing could be less fruitful than for this court to be impelled into defining some sort of insanity test constitutional terms. Justice kavanaugh pointing out the difficult of us through the due process difficulty of us through the due process clause wading in this policy debate and figuring out the line. Justice kavanaugh in powell wasnt an abolition case. What Justice Powell said there was a reflection of the facts of that case. That case had to grapple with leyland. The only test that would have applied is an irresistible or exugs based test. The write and wrong Justice Kavanaugh leyland noted the wide disagreement among differ testing on said choice of a test not only scientific knowledge but questions of basic policy, the whole problem has evoked wide disagreement among those who have studied it. Which is true as to this as to the kansas approach as well. There is wide disagreement. Some have advocated for that. Leyland also recognized the right and wrong principle was the majority test and the majority jurisdictions. 48 jurisdictions have retained this baseline principle. Justice kavanaugh are all 48 unconstitutional . If they have the right and wrong justice Justice Kavanaugh all 48 will constitutional. Justice marshals statement in powell is not limited in the way you suggest. It was categorical. He was joined by chief justice black and justice harlan. They were all wrong at that time. Justice alito, its not they were wrong. They were talking about a different scenario. A nonabolition case dealing with a test that is north of our standard. Thank you, counsel. Mr. Chief justice, may it please the court. Petitioner asks this court to define rule of insanity and to require the states to implement that rule in its criminal justice proceedings. But as this court indicated in powell, nearly 50 years ago, nothing would be less fruitful than for this court to select the rigid rule of constitutional law than insanity. That admonition rings as true today as it did 50 years ago. Its not deeply wroot rooted. Ut right versus wrong test is recent vintage. The historical basis started somewhere around the 1800s and therefore its not deeply rooted. In addition, the states have had historical and traditional discretion to both define the elements of the criminal law, defenses available in those proceedings, and the substantive rules at which those defenses elements are met. Consistent with that discretion, the state of kansas has a holistic approach to the Mental Illness problem starting at the time criminal justice proceeding is initiated throughout the guilt phase as well as the punishment phase and continuing on even with regard to the sentence as its carried out whether being in a prison or mental hospital. These factors confirm that petitioner has not carried the heavy burden to identify a single rule that is clearly established and required by the fundamental elements of due process. For that reason we believe that the state Supreme Court judgment in kansas should be affirmed. Unless there are additional questions this court would have, i would like to turn to the answer of Justice Alitos question. The answer is the right and wrong test has multiple components. There is no consistent element or definition of how thats applied in any of the 46 jurisdictions. As our briefer points out, there are a host of different factions and different ways in which those elements would be met. We think that in and of itself undermines the constitutional floor that petitioner seeks mr. Crouse, i understand what you are saying but i have a problem because as i understand the mensrae test it takes away excusing a person who, from the 1400s would have been considered a lunatic. Justice sotomayor a person who hears voices and the voices tell him or her what to do and they have no volition to fight back. Many them know they are killing somebody. So intent under your test is net. They absolutely know they are killing someone. They just have no ability to say no. They dont they cant because of their either Mental Illness lunacy, or the wild beast things. All of the yes, they have two components. Some volition and some not, but for centuries that concept of no volition, true lunatic, would get off. There is a volition and moral test and product test. So we would view our test as consistent with the cognitive test and if the individual cant formulate the criminal intent in kansas, that is a sufficient defense. Thats not how i read your charge. When i read the charge you are talking the very language that your adverse area is suggesting you should adopt but not part of the mens rea test. The test is do you know what youre doing. You have criminal intent. No. O yes, you are adding a volition, what im saying this test standing alone doesnt do that. As i understand petitions test they want to know whether or not the individual knows it and gally or morally right wrong. Then you have the opportunity to assert a right versus wrong test. I intend to kill someone but because someone is holding a gun to my head. All 50 states would let you off. Ok ou are now saying its to stigma advertise you with a criminal conviction even though in fact you may be insane. What the state of kansas has done has defined its Mental Illness defense consistent with the hivet call teachings going from blackstone and 1910 and dean morris indicated up to the 19th century, criminal intent handled everything. Could you assume for a moment that i disagree with you on the reading of the historical record and lets say that the historical record that there is much more evidence than you are suggesting that a defendant had to have the guilty mind, meaning an understanding that what he was doing was immoral as well as the inability to form specific criminal intent . If thats the case, if you look at the all the cases and say, case after case after case, what they are talking about is something more than criminal intent and what they are talking about is some moral understanding, if thats the case, what is your best argument . I have three. The first one is the existence of strict liability and second is corporate liability and third, i think there is just the general understanding that criminal intent has always been separated from moral capacity. And even with regard to the hypothetical you suggested, i think we would have to know whether or not the right versus wrong test is being defined in a legal sense or a moral sense. And even if so, the states that have adopted the right versus wrong test have variations. The federal government to my understanding would require severe i understand that there are some variations in the historical record and even in states now. But there are some number of states, a great number, 46 states, 48 states, whatever it is, that go further than you do in terms of saying something more is required than the mere capacity to formulate criminal intent. And that something more in large measure is some ability to make moral judgments and to distinguish between right and wrong. And again, lets assume that thats what the historical record said. I know you dont agree with that, but lets assume that is what the historical record said and could you win . This court has petitioner has to satisfy a high burden to identify a particular rule that the absence of which kansas law would constitute a violation of a deeply rooted rule and that simply doesnt exist based on the very generalialities we talked about today. By its nature, that the principle is historically established that you cannot punish people who dont know the difference between right and wrong, that sounds like something that is rooted in the conditions and would be ranked as fundamental. I think what and i dont mean to fight the hypothetical here, but my understanding of the history is that what has been dealt with throughout our time is how to resolve and handle Mental Illness within the criminal capability system. There is no fundamental it is a nightmare trying to figure out exact standards, i agree with that. My question which i hope you imagine two fy defendants. Both defendants are certified with whatever board of psychiatry are totally insane. The First Defendant shoots and kills smith. The second defendant shoots and kills jones. The First Defendant think smith is a dog. Nd the second defendant thinks its a person but the dog told him to do it. What is the difference . Criminal intent in the first situation because as i understand the hypothetical, the individual intends to commit a crime. I know these are words, looking in temperatures of criminal law or legal purpose or human purpose or whatever that would treat the two differently . One answer you said it is hard to figure it out. I agree its hard to get a definition. That is going to be true in both cases. You say criminal, corporate criminal liability and regulatory offenses. I agree with you. You have to call out exceptions and that is not easy to do. Got those points but im looking for Something Different between the two defendants. The dog, there he is. The dog, he told me to do it. Both crazy. Is why does kansas say, one guilty, the other is not guilty . I think that this courts cases have historically allowed legislative i dont care what the cases said at this moment. My law clerk has found four instances going back where it seems to be against you. But im not interested in that. Im interested in practical, same question se and i just repeated it three times and looking for your answer. I think the problem is that states have grappled with this and made different judgments as to who is morally responsible and this allowed the state legislatures or federal congress to determine whether that person should be or should not be held responsible. What kansas does, it identifies those who intend to commit a crime punishes those. Youre telling me, particularly kansas, do, in to , treat, the dog told me do it. My question is why . It is spectrum is. In delaware, my understanding is that individual would not be convicted where as in illinois that person could be convicted because do you think that you could also eliminate consideration of the moral understanding at sentencing, in other words, take Justice Breyer example and the dog told me to do it. Would it be unconstitutional if your state did not have a procedure for considering that at sentencing . There are different questions and it enagendaers a different test. If you are considering what is available at the sentencing for whether it violates the constitution would implicate the 8th amendment. Lets say this isnt a capital case. Does the state have to have away to consider at sentencing somebodys complete lack of understanding of the morality of his actions . I dont believe this courts cases would indicate that the states would have to consider the morality at sentencing or any particular time. Mens rea ut the aspect. Would you accept that at least that is required as a matter of due process that something is required in these cases and if so, why . I would carve out that in the corporate liability context. Why . And how do you reconcile with our strict liability cases . What this court has done is guarding mens rea cases and thats what kansas has done. You accept there is a constitutional minimum floor below that states cant proceed . You just suggest you have met that standard . I think i would admit that there is a mens rea requirement of how one would define insanity. This court hasnt suggested there are various ways. You accept that states can define strict liability. I dont know if youve answered the question, which is could you o away with the mens rea defense . Could you say he has this belief, if you kill someone regardless of the reasons, if youve done the act, you have committed murder, period, end of story . No mens rea defense . That is a more difficult situation and that would present a lot of additional problems for the state of kansas because of this states court requirement cause of having a mens rea baseline. Could you get rid of other defenses, the duress dens . The historical analysis is something we would have to look at. I havent done an individual search. Im rett sent of that answer. An you cite any state or any legal system ill limit it to englishspeaking countries that have said killing another person is a strict liability defense. Kansas doesnt do that. On the history, your primary answer has been there is no particular test that is historically rooted. But isnt there a blining that i baseline historically rooted that have been accepted by the states as justice said until the end of the 20th century . I would agree that the states or organized societies have consistently struggled with how to define and handle Mental Illness, but i dont believe there has been a baseline the where the states could go. Since the early 1800s, didnt every state allow some form of a separate insanity defense at the guilt phase . The treatment of insanity has varied within particular parameters. Some states wore require an affirmative defense. Kansas didnt let me focus on my question. All the states had something separate from the mens rea approach at the guilt phase through the end of the 20th century, isnt that correct . You can still win the case as Justice Kagan noted. Im not trying to skip the answer. Kansas included it in the guilt phase and didnt have a separate insanity defense. T came in with a different definition. I dont believe they have separate defenses but handled it differently. Some of them defined it as affirmative proceedings. They handled it through mens rea . They have. Does it vary from case to case . Isnt it the same whether the person claims to be mentally ill or not. It would be consistent with intent to commit a crime. If the element traditionally incorporated a requirement of moral culpability, that would apply across the board, would it not, not where the person says i had this lack of capacity due to Mental Illness but i have it due to political brainwashing or religious fan at civil . Thats correct. Was that the traditional understanding of mens rea . I think it is inconsistent with general criminal principles. Would you agree that historically if you go back and look at the cases, you see this operating in two categories of cases, one is for insane people or idiots and people who lacked mental capacity. But for those people, it came up again and again that yes, you know, you lack the moral capacity to understand what you are doing and therefore, the criminal system ought to operate differently on you, isnt that right . I would push back only in regard whether or not it was a moral exabblet. It is looking at a cognitive capability and take intent to commit a crime. I dont think the moral capacity someone ere we asked knew if it was right or wrong. It is quite deep this uestion. ll save it for later. Thank you, counsel. Mr. Chief justice and may it please the court. Petitioner bears the burden of establishing that principles override the kansas legislatures judgment in this and in adopting a mens rea has not carried the burden. The court should recognize that across the states. But the problem with that approach both as a matter of history and practice, there has been no agreement on the precise circumstances when Mental Illness should excuse criminal responsibility and i would like to begin with the hypotheticals that the justices brought up because this illustrates because in contemporary jurisdictions there is a basic divide when someone should be able to invoke the insanity defense and this is the difference between legal and moral wrong. Those jurisdictions that adopt the tests, the one the petitioner is proposing, there is differential treatment on whether they could appreciate that their conduct violated the law and constituted a crime or not. Imagine the defendant who hears voices that command him to kill in order to save the human race. He knows that murder is a crime and would be violating the law but he thinks it is morally justified because of his Mental Illness. He would not be entitled to invoke the insanity defense. To try to recognize or articulate moral culpability i think has no history and would actually raise the possibility of challenging state laws across the nation. Excuse me. Every state as a defense. They all vary. They all have different exceptions. They all have different arctic can you lations. Theres never been a common one. But all 50 have them. And the essence of it is defined very simply as duress, couple pullings, where we give wide and wide, incredible latitude to the states to define those circumstances. I think what your adversary is saying is making this go simply to intent and taking out some differentiation from the true to tic who knows its wrong kill the person, but the tv made him do it, no volition to conform his conduct to the law or ability, i think it is moral incapacity than capacity. The intentbased defenses dont encompass that in any way. Car that the two prongs of the norton tests were really encompassing a first. Thats what the problem is for me. There is in essence, there is an essence for compulsion for defense as a defense mechanism. There is some minor amount that has to excuse criminal liability. Kansas has recognized cognitive incapacity the way you excuse criminal responsibility of how Mental Illness should function. Thats where we differ. Because you could know something is against the law and not have the ability to conform your conduct but make a moral choice, i could say if its only a moral choice, i could say, i dont wish to do it because of my morality, could i physically stop myself. Someone who is physically insane cant stop themselves. That is a different sort of i agree to different tests of insanity. Jurisdictions have struck across time and different places and settled on different variances on try to identify the different circumstances. What you are suggesting is a test for insanity. Its not a test for insanity but the intent requirement that we apply for all defendants. If the defendant doesnt have the intent to kill, then the defendant is not cull pable. And i think the question that justice sote mayor is asking, is there something is necessary and we would leave a lot of flexibility to the states but thats Something Else is something that relates particularly to insane defendants, their ability to say because i have a Mental Illness, there has to be something more . I dont think there is Something Else here. And this court has recognized the history. But needs to come forward with historical consensus establishing a fundamental process. And actually the mens rea was linked to the common law early arctic can you lations of insanity. One of the ways you might try to identify that class of individuals you might be declared legally insane. And i want to lets just say i disagree with this, when i look back at the history, i see lots of cases which make it quite clear, these are all people who had an intent to kill and what the common law was saying, even though they had the intent to kill, there was going to be a further inquiry as to how their insanity limited their moral understanding. Their understanding of wrongfulness of their act. So if i think that that kind of all over the history, how do you find for you . I want to make clear even if you thought this was a novel approach in recent history, the court has recognized that outliar states are legal and versus oregon was a case where oregon was the only state in the nation that required defendants to prove their insanity beyond a reasonable doubt. I dont think that is cause alone to think this is violating principle. The rex versus arnold, the injure was instructed that the defendant was to be showing that he could form no intent whatsoever. That is a restrictive intent of go t is helpful for me to over each case one by one and for you to tell me, if what i think is true, there is just a ton that suggests there was something more than a requirement that the defendant be able to form an intent to kill. Does the petitioner win . The petitioner bears the burden of trying to articulate what that something more is. That was the point of my question, i think. The law has many, many ways in different circumstances trying to separate out individuals for whom the criminal Justice System is just not going to work in rms of one, the wind blew my arm. Because in a duress case, you the ooking to could defendant have done otherwise. Inson san antonio, you are close to that. And if even were not, is this individual so different from the ordinary individual, it doesnt make sense to apply the law. If Something Like that is going , then my question, if, in fact he is the dog, out. Why isnt it . The dog told me to do it. Thats the fourth time i asked that. I would like to know what you think about it. These are obviously difficult questions, the ones that society has tried to balance the medical, moral and legal judgments. This court has long recognized that states have principal responsibility to do that and there are various ways to decide to zish between the two defendants. That cognitive capacity test whether the individual he shot was a dog might be an easier inquiry and might be assign of Mental Illness and whether he was considering right versus wrong. A jurisdiction might think looking at considerations of individual culpability, they dont want an onoff switch but shift that to the sentencing stage where the judge can make that determination. Assuming we find that sin the beginning of modern thought that there is an minimum of due insane that requires the to be not convicted by a judge or put in a Mental Institution not by a judge but by a jury. There would be a question as to how you define the legal insane. It has no single formulation and for this court to formulate could bring into state laws into question the states that are trying to make this difficult decision. I would like to make three quick points. First, the problem with the mens rea approach is that it has the why, the underlying motivation fueled by Mental Illness that explains the defendants act and has been part of our history for century and the dog example, it is completely arbitrary. I dont know why if you think why one defendant thinks that a he is shooting a dog versus a dog is forcing him to shoot someone. The first person is acquitted and let out on the streets and the second is put in jail and put to death. There is no safety net. What kansas does is even more stream because it limits the evidence that can come in and is essentially advocating and never explains whether there is any light between the wild beast test but either way, it is different than what we have had historically and what 48 jurisdictions retain. I would like to turn to my friend on the other side notion that there is some limits. He doesnt suggest anything. If you look at page 39 and 40 of their brief, everything is up for grabs grab. Duress, self defense, all of these defenses are on the line because according to them all that is required in kansas is a voluntary act and intention nationality. Turning back to history its not right to say that the right and wrong principle is a 19th century invention. Here are a wall of cases uninterrupted until 1843 when the law was formed. There are scores of cases here and in england defining the right and wrong principle. To contrast that with the test they suggest which is the wild beast test that was invoked two, three times. History favors us and although due process is a rigorous burden for a petitioner to meet, we have satisfied it because they have taken something out of our criminal culpability what we believe as a country. They are punishing the insane as a result. If the court has no further questions, if you have finished the comments you want to make. N your reply brief you say the states premise that it was tied spens re and and you agreed to that . If it was tied to common law intent which is a different term which they use. The states premise was that insanity was tied to lack of mens rea but it required the kansas law now excludes. And how do you reconcile with he fact that mens rea does not vary from crime to crime . That would apply in every case and that would have been moral blame worthyness in every case, not just where their lack of blame worthyness is attributable to a mental disorder however that is defined . Intent always contained this moral component. It would all apply across the board. It would, with the exception i assassinated this political leader because he is an evil person and going to do evil things. No. The only people that this had een applied to are the insane. [captions Copyright National cable satellite corp. 2019] captioning performed by the national captioning institute, which is responsible for its caption content and accuracy