Ways. First by elevating the wild beast test when mother was never used in this country and only rarely in england. Secondly, complicating commonlaw intent which required admissions will and founder more capacity. What are the place today, a morality free modern manchurian. As such it uproots the deeply rooted but in eliminating any mechanism for moral judgment was intact over the tripoli compromise rate of Mental Illness. I would like to turn briefly to due process and explain what the more capacity notion is an noise has been fundamental in our system. The model is an excellent example. As criminal law evolves, the drafters move to more precise mental state, when they did that they retained the compelling mechanism to show intensity. We could do that the doctor said because we kept this, the narrow remnant of commonlaw criminality. This court recognized the presumption of sanity and sit evidence in this demonstrator continued need for the mechanism for the presumption of sanity even though it defended harbor in a mental state. It was not only the mechanism that was important, the substance was two. This court said arizona could do that, eliminate the first part because it kept us. The right and wrong principle that consumed it. I would like to now turn back to history youre relying on due process and suppose the state decides it wants to rethink the insanity defense. It looks for nations for models. And one is, what is known as a judgment of guilty but insane. That is to determines are made. Did the defendant do the acts of which he is charge present the first question. The second question, what is the proper incapacitation. But guilty but insane with incapacitation in the institution, guilty and not insane would lead to incarceration in prison. The United States violates due process. Guess it would. I think it would because the conviction itself carries collateral consequences and we have never addressed the country treated the insane as culpable. And that conviction would impose collateral consequences on the Insane Person who should be excused. I wouldve thought you would want collateral consequences and post as i understood your submission because the idea is that someone acquitted by reason of insanity would not go free but would instead be committed to a mental care. That is right. So why would that have be the consequence of the system Justice Ginsburg was talking about, guilty but insane, i dont understand why that is not the coarser looking for . I want to rewind your honor. What we are talking about is a mechanism to show that you lack more capacity. The back end of it as long as you have the mechanism to show that you lack more capacity, you can choose right from wrong or cannot. The ultimate result is not all that determine. If guilty but insane means that you if you end up in the exact same place, i suppose the label does not matter but when im nervous, if you have a guilty but insane, some of the statues in some jurisdictions are guilty, you get treatment and once you are well hypothetical the question of where the person is incarcerated is determined second and has collateral consequently. You have found to committed the charge but because you are insane you go to a Mental Institution so we take any collateral consequences that would label you on the criminal side you just have committed the deed that you are charged with that you are insane and then you go to a Mental Institution. You think that would violate due process . To the extent, i would go back to history, what we know, these people were not subject to prosecution at all. But the mechanism, as long as the mechanism for the defendant to present his lack of moral capability at the backend, if the regime protects him in that way but i also disagree that the conviction doesnt stigmatize or show that he is guilty. If youre found guilty you have that conviction. I think the insane need mental treatment and commitment. I guess unless im missing your point, i believe its more about the neck enter mechanism and not allowing a conviction of an Insane Person. You talking about lack of moral capacity. What is unconstitutional if the state said that a person is saying if the person knows that the act is illegal, even if the person thinks that the act is moral . The right and wrong principle, your honor, includes both knowledge of legal wrong and knowledge of moral wrong. Theres little light between the two. But if thats the case, someone can know that something is illegal but feel very strongly that it is moral. So what is the answer to my question . It is not about a belief, its about the capacity field by Mental Illness. If a person justifies their beliefs that they are justified in acting in that way, they are not covered by the baseline standard. If the person has the capacity to know that what he did was a violation of the criminal law and that the defense that is provided by the state that is unconstitutional . No, if it encompasses, it cannot just be that you forget what criminal law is. What Justice Breyer said is what legally wrong means and it still falls within the right and wrong principle, but legally wrong means, youre unable to comprehend the actual nature of the acts such as you believe youre falling into a different. There are many people who believe maybe not so much for murder but for a lot of other offenses that things are violations of the law are nevertheless moral. And so if that was a general rule and criminal law you cannot be convicted if you know and believe that what youve done is moral, that would reloa revolutd terminal law. The only element you are getting at is this is caused by a mental disorder. It becomes important to understand what you mean by a mental disorder, what do you mean by a mental disorder, deeming everything listed as a mental disorder in the latest edition of the dsm . Your honor, it is not the about the diagnosis. You asked what mental capacity means and what Mental Illness means. I can put it this way, it is as if a person is not about a belief, is not about justifying, you actually cannot happen to the part of your brain that allows you to choose right versus wrong. Injuries and 48 jurisdictions have been able to make this distinction regardless of what the diagnosis is. What is the answer to my question. Is it sufficient is if a person has something that is considered to be a mental disorder in the dsm and calculated that one of five people in the United States has some mental disorder. Were talking about 60 plus million people. All of them can go to the jury of whether they have the capacity to know that what they were doing when they committed the crime was morally wrong. They should be given the opportunity to be tried. They should not be legislatively cut off at the need attorneys. There are many hoops they would have to jump through but if they have a mental disease that is diagnosed they should get in the door and get evaluated and then proceed can we ask you about a premise of your argument and if we look to history and if history supports what do you say, the more obligated to go with it now. I just want to ask how and why that is so. There are many ways in which understanding criminal culpability has changed over the years. And how do we figure out, which are the ones that the constitution requires to stay the same now as they were back in the common law are back in the founding are back in 1868 dependent on which state you are using and which ones can change. What do we do, were not stuck with all of history are we, so if were not stuck with all of history why are we obligated to keep this part . The court is set up for due process, you can go back as far as you want but by the 1500s we know this was an intact principal. The test by this court for due process i can give you ways in which the criminal law that was put in times seems remarkably archaic to us now. Marital rape exception. Maybe the laws. And of should those others i can list. And what this due process requires that we hang onto notwithstanding change in times. I guess what is the due process required if we hang onto notwithstanding the judgments of some states that the time for this has come and gone. We actually have a perfect case because we have history that goes back maybe 1000 years and certainly since the mid1500s but we have the modern practice, a fundamental fairness currently in operation and 4853 jurisdictions. It is not just the history, is the fact that we look in nearly everyone has retained it. This is basic history. Can we take into account the reality at common law, the results of the insanity defense would be a condition so often followers then imprisoned so someone might decide, im not going to plead insanity because then ill end up with 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 into account, the fundamental principle is the good and evil, the right and wrong as applied to the insane, the application to the insane that is deeply rooted in our country. And where those people entities time those people would not be. We know that those people are sent to an institution. So no, i dont think its how they work historically, the end up in a lot of places. Sometimes there, sometimes released to the families,. Things that underline a lot of the debate, the expansive notion, in your brief you say the defendant in this case this is evidence to support his insanity claim was described by some of the tightwad who would for example out borrow the purchase tools and again, 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 idea. Maybe thats not the best way to order your life but if thats what you mean by insanity that could cause reservation. Mr. Chief justice, let me tell you why they are in their and why they are there. That will shed light. What we know mr. Taylor had a major depressive disorder, he had a qualified Mental Illness. Those factor in there to show there was an entire other category of evidence that in combination with the major depressive disorder couldve been developed. So he borrows tools instead of purchasing them . That sounds like a reasonable option. [laughter] you cannot take that one fact out of context. The most important theory is juries are able to take the collection of evidence that is presented to them and decide whether the person is insane and whether they have the capacity to or not. What evidence in this record would you point to to show the panel is unable to tell right from wrong. What evidence if he was unable to make that distinction his experts had the he cannot rule out association and if youre oe you could not determine right from wrong. He was not even given the opportunity to put forth that and develop other evidence that would have shown more forcefully that he did not and that the same for every defendant. He had the opportunity in every incentive to do that at the penalty phase. He was able to argue, i should not yet a death sentence because i did not know what i did was doing was morally wrong. You would think if the jury believes that what they would not have imposed the death penalty. But they did. You have to keep in mind what he did, and intelligent man and he sneaked up on the house where his wife and her mother and his children were staying, he killed his exwife, her mother, he executed his two teenage daughters, one is heard on the tape crying and he nevertheless shot her to death, he sprayed the sun because he did not think the sun was siding with the mother then he ran away and turned himself in the next day. This is the stuff from which youre going to make a difference that he did not know what he was doing morally wrong and much less he did not know it was legally wrong. All answer the first question, it is not a substitute because we know from the priest that jurors make up their mind as a defending justice in the opinion below, we should not let guilt indicate what happened at sentencing. Because he lacked that to consider the more capacity principal, you cannot draw it would be speculative to say what capital jury im on the jury and i say ive convicted this guy, i found him guilty and having done that, even though i think that he did not know what he was doing was morally wrong im going to impose the death penalty. It is realistic because we know from the brief that jurors are sprayed at the guilt phase and if they lack the mechanism and opportunity to look through the lens of capacity for moral judgment that we cannot draw conclusions about that. The facts are hard in every case and they are hard in this case. But were talking about an opportunity, a mechanism to get into the threshold and let a jury decide he referred several times to the jury in one of the debates that is heard over the last several decades is the capacity of the jury of these fine concepts and one of the things that leading scholars have said this may be beyond the capacity of jurors to do in a principal way. Why cannot the state say, we will take this away from the jury as a separate difference and put it in an arena and as Justice Ginsburg points out have an unreasonable policy judgment, so unreasonable to violate due process. Two points, first of all, the critiques of the debate were not about evolution or scrapping the defense entirely. Though should be handled through instructional one of the debates was in fact about putting it into a mens ray defense as kansas has done in part because of the concept of a separate difference was to confusing for jurors. And that has been part of the debate. They have not abolished this insanity defense. They have funneled into a mens rea and set a b considered upsetting as well. They have acknowledged theyve abolished. And we know it is not sufficient because it does not allow a jury or the defendant to raise his capacity for moral judgment. You have any information about how this works in the 46 states that have the rule that you prefer how often do people raise infinit insanity defensesw often do they find insanity if this were in one of the other 46 states how would operate. Honestly you cant say this but i cant. And none of the 46 states, im guessing would would your client be found insane. What happens in the 46 states, how often are people found insane . It is not on the record, i like you to know what i find out if you like me too. It cannot be obtained in the record that is in the right and wrong state and there are acquittals every years. One other question for the extent of how far this goes. Obviously this is a capital case but how far down the road would you say this defense must be extended as a matter of due process to all homicides in all felonies, where you think the line would be drawn. Dont think you draw the line at punishment. So in insanity defense is required to respect with any criminal complaint even at regulatory strict line ability misdemeanor it is our position that it should be applied everywhere but this court has never definitively ruled on the extent and i think you could pull that out. What is important, this is a really used defense, its invoked in less than 1 of the cases and successful and a quarter and were not talking about a huge number of people. But for the people it matters. There is no mechanism in the state to protect them and let them be excused or that the jury consider their culpability when they cannot tap into their brains another we will enter way people can. Juries are able to decide reasonable is all the time. The state adopted the irresistible impulse defense is unconstitutional. They said that is not unconstitutional so no. Not whether its required, without be unconstitutional because it does not ask whether the person knew right from wrong . It would have to include the right from wrong principal. I would like to turn briefly to the amendment. The public meaning of the term is it would be cruel and unusual to punish the insane. In 1868 with the reconstruction, every single conviction has in stating the difference. Even if you go back to 1791, it wouldve been cruel and unusual to punish the insane, they were handled outside of the Legal Process or they were allowed to come in and plead and prove insanity. The eighth amendment was included as a check on sovereign power. States are not free to legislatively redefine culpability in a way that is inconsistent with history and longstanding practice. But that is what kansas has done, its an outlier, it prevents people by taking away the mechanism they ensure insane people will be punished and their borders. They did not reach that question so you are asking us to decide it as a matter of rich and preston. No just ginsburg. I would point to the court to be a dented page 18 and 19, it is clear this notion to the insanity defense came up in oral argument and in the post argument memo council said we believe this issue is presented and if you want everything we will provide it but we believe its an issue implicit in the court. What you do with a statement of Justice Marshall for plurality and success, nothing can be less fruitful for this court to be impelled then defining insanity defense or test in constitutional terms and pointing at the difficulty of us through the due process clause waiting in the policy debate and figuring out what the line is . It was not an abolition case but secondly what Justice Powell said was a reflection of the fact of the case, that case had to grapple with leland, the only test that wouldve applied in irresistible test. So our standard, the right and wrong standard know that. We in turn noted the disagreement among different test and the only scientific but questions a basic policy, the whole problem is why disagreement among those who study. It is true, as for the kansas approach as well, there is widely different under disagreement. Some have advocated. Leland recognize the right and wrong principal was majority of jurisdictions. And theres 48 jurisdictions i have retained the baseline principle. Are all 48 constitutional . If they have the right and wrong principal they are. Is a yes. Yes. He was going by just as black and justice harlan. They were all wrong at the time . Briefly Justice Alito its not they were wrong but they were talking about a different scenario, and on evolution pace that is north of our standards. Thank you council. Mr. Chief justice and mayor. Petitioner asked this court to define a rule of insanity and require the states to implement that rule in the criminal justice proceedings. But at this course indicated nearly 50 years ago nothing would be less fruitful than the court to select constitutional law of insanity. The admonition rings true today as it did 50 years ago. The first thing id like to talk about is its not deeply rooted, the right versus wrong test is a historical basis that started somewhere around the 1800s and therefore it is not deeply rooted. In addition the states have had discussion about finding the elements of criminal law and the defenses available in the proceedings and the substance that ruled at those defenses. Inconsistent with that discretion the state of kansas has a whole another approach starting at the time that criminal justice proceeding was initiated throughout the guilt phase and the punishment phase and continuing on with part of the sentence carried out whether being in a prison or mental hospital. These factors confirm that petitioner does not carry the heavy burden to identify the same role that is clearly established and required by the fundamental values of due process. We believe 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 and the answer is the right and wrong test of the multiple components and there is no consistent element or definition of how much is applied in the 46 jurisdictions. As the brief points out, theres a host of different factors and ways in which the elements would be met and we think that undermines the constitutional floor i understand what youre saying but i have a problem because as i understand it takes away of excusing a person from the 1400s wouldve been considered a lunatic, a person who hears voices and the voices tell him or her what to do and they have no coalition to fight back. Many of them know killing somebody so intense is met, they know they are killing someone, they just have no ability to say no. They cant because of their lunacy. All the while these things are two components some bullishness and some not. But for centuries, that concept is no volusia in true lunatic. Your test does not do that. It does, it is relatively consistent with the cognitive capacity test, theres volitional, moral and the product. So we would be our test as consistent with the cognitive test and if an individual cannot formulate the committal content in kansas, that is a sufficient defense. Thats not however, injure chart. When i read the chart it does not you are talking the language that your adversary is suggesting you shouldve talked, not part of the mens rea test. The mens rea test now, do you know what youre doing. Its a criminal intent. No your adding a religion but what im saying, this test standing alone does not do that. As i understand petitioner test, they went to ask the question whether or not the individual knows it legally or morally right versus wrong and what kansas does, if you have criminal intent you are responsible. Then you have the opportunity to assert a right versus wrong test. That the point which is that issue which is after conviction in which she has been arguing since the beginning of time under english law and the time of the founding and frankly since the 1970s, all 50 states did not make it a subject of sentencing, they made it a reason for why you should be excused for your conduct. You are saying the same thing with something, i intend to kill someone but its because somebody is holding a gun to my head. All 50 states have led to us. But you are now saying it is okay to stigmatize with a criminal conviction even though in fact you may be insane . Im saying what the state of kansas has done has defined Mental Illness defense consistently with the historical teachings dating back to blackstone to the 1910 and they indicated up until the 19th century that being one in criminal intent can 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 and the defendant had to have the guilty mind meaning and understanding of what he was doing was immoral as well as the inability to form specific criminal intent. If that is the case, if you look at all the cases and say case after case after case what theyre talking about is something more than criminal intent, what they are talking about is moral understanding, if that is the case what is your best argument . I have three, the first one is liability, existence of corporate labeled, and the third is a general understanding that criminal intent has always been separated from moral capacity and even with regard to the hypothetical use you suggested, we have to know whether or not the right versus wrong test is being found in a legal sense or a moral sense. Even if so theyve adopted the right versus wrong test and have variations within them some like the federal government would require a severe i understand theres variations in the historical record and even in states now. But there are some number of states, a great number, 46, 48, whatever it is that go further than you do in terms of something is required for new capacity to formulate criminal intent. And if that is something more in large measure and ability to make moral judgments and to distinguish between right and wrong. Lets assume that that is what is said. Lets assume thats what the historical record indicated. Could you still when and why . I could because the nature of the courts inquiry. The petitioner has to satisfy a high burden to identify. A particular rule that the absence of which would constitute a violation of the deeply rooted role in that simply does not exist based on the generality that we have talked about today by nature is the principal as Justice Kagan said just hypothetically historically is established, you cannot punish people who do not know the difference between right and wrong, that sounds like something that is rooted in the conscience and fundamental. I think i dont mean to fight the hypothetical, my understanding of the history is what has been dealt with throughout our time is how to resolve and handle Mental Illness within the criminal capability system. With this decision, there is not a fundamental it is a nightmare trying to figure out exact standards. I agree with that. But my question which i hope youd clarify, imagine two examples. Both defendants one into our certified by whatever board is totally insane. The First Defendant shoots and kills smith, the second defendant shoots and kills jones. The First Defendant tanks that smith is a dog. The second defendant knows its a person but thinks the dog told him to do it. Okay what is the difference . I think the differences criminal intent in the first situation because as i understand hypothetical individual intent to commit a crime. I know these are words, but im looking for something in terms of criminal or illegal purpose or human purpose or whatever that we treat the two wrongly. Then we treat them differently. I agree its hard to get a definition. That is going to be true in both cases. You say a criminal liability and regulatory offenses. I agree with you, you have to call the exceptions and thats not easy to do. Ive got those points but im looking for Something Different between the two defendants, the dog, there he is, the dog told me too do it. Theyre both crazy. And why does kansas say one is guilty and the other is not guilty. I think that this court case has historically i dont care what the cases say at this moment, going back to brockton. Where is seems to be against you. But i am not interested in that. I am interested in the practical pragmatic purpose and why the law should treat those two cases differently. Same question, i have just repeated it three times and im listening for your answer. I apologize for not getting to the answer of your question. I think the problem is states grapple with this and made different moral judgments as to who is morally responsible or not in this court case allow the state legislator or federal congress to determine whether that person should be or should not be held responsible and what kansas does it identifies those who intent to commit a crime punishes those. You are right, kansas does in fact treat a dog, the dog told me too do it. Differently. But my question was, why . I think its a spectrum as to what the state believe is appropriate, and deliver my understanding that individual will not be convicted were in illinois that person could be convicted because they know shooting a human being is legally broke unturned wrong. Do you think you could eliminate the consideration of the moral understanding at sentencing in other words take the Justice Breyer example in the dog told me too do it, would it be unconstitutional if your state did not have a procedure for considering that at sentencing . Obviously different question and engenders a different test. If youre considering what is available at the sentencing for whether it violates the constitution it would implicate the eighth amendment. Lets put the eighth amendment aside and say this is not a capital case. Does the state have to have a way to consider at sentencing somebodys complete lack of understanding of the morality of his actions . I dont believe this court case would indicate that the state have to consider the morality at sentencing or any particular times. How about the mens rea aspect . I want to follow up as well, would you except that at least that is required is a matter of due process . That a mens rea is required in as to what and if so why not. I would accept that in the corporate labeled context. Why . And how do you reconcile that with the strict bible the case. What this court has done historically guarded mens rea because thats what separates innocent conduct from criminal conduct. That is what kansas has done. You accepted there is a constitutional minimum floor in which a state cannot proceed with respect to capacity and insanity and you met that standard. I admit there is a mens rea requirement with regard to how one would define insanity. I dont believe this court has identified and suggested there are variations of way to handle im not sure you understand the states except the liability cards, i dont know if you have answered his question which is could you do away with the mens rea defense . Could use them please say we in kansas believe if you kill someone regardless of the reasons, if you have done the act, you have committed murder. And of story. No mens rea defense or nothing. Again i think that is a much more difficult situation and i think that would present a lot more additional problems for the state of kansas because of the discourse requirement of having a mens rea baseline. Could you get rid of other defenses could get rid of the dress defense . I think weve announced that its something we would have to look at youre very reticent about answering any of these questions. Can you cite any state or any legal system, ill even lend minute to englishspeaking countries that is ever said that killing another person is a strict liability offense . And no kansas does not do that. On the history that justin kagan was asking about, your primary answer that there has been no particular test that is historically rooted but isnt there a baseline that is historically rooted above which there has been a variety of test that a been accepted by the states until the end of the 20th century. I think i would agree that the states have organized society has consistently struggled with how to define and handle those but i dont believe there has been a baseline which is been established which the states could go. Since the early 1800s at least to the late 20th century in the United States didnt every state allow some form of a separate insanity defense at the guilt phase . My understanding the treatment of insanity has varied within particular prayer motors and for example some states will require to some defense kansas for example did not have a separate defense let me focus on my question. All the states have something separate from the mens rea approach at the guilt phase through the end of the 20 century, isnt that correct at a historical practice . You can still win the case but just to make sure were on the same page . Im not trying to skip the answer, i think kansas included as part of the guilt phase, it did not have a separate insanity defense. It came in with a different definition. All states had separate insanity differences since 1971. I dont believe i was saying that, they handled it differently some defined as an affirmative defense and some put it in a separate proceeding. Some handled it through mens rea did they not . They did. Mens rea for murder or any other terminal defense did a very case to case, is it not the same in every case regardless of whether the person claims to be mentally ill or not . The mens rea element would be consistent in attempt to commit a crime. If the element traditionally incorporated the requirement and more capabilit culpability thatd apply across the board, not just cases where the person says i have this lack of capacity due to Mental Illness but i have it due to political brainwashing or religious fanaticism or any other reason. That is correct. Was that the traditional understanding of mens rea . I dont believe that was consistent with historical understanding of mens rea and i think its inconsistent with terminal criminal principles that we dont look at the motive committing the crime. Would you agree historically if you go back and look at the cases, you see this operating into categories of cases, one for insane people and one that were then called idiots. People who lacked mental capacity. But for those people a came up again and again, that yes, you lack the more capacity to understand what youre doing and therefore the criminal system operates differently on you. Is that right . I would push back only in regard to whether or not it was a more capability. I think historically it is looked at a cognitive capability and whether we can take intent to commit a crime. I dont think the more capacity came in until the monotony era as whether or not someone knew it was right and wrong to commit a crime. It is quite deep, this question, the wind blew my han hand im not sure i want to. [laughter] thank you counsel. Mr. Chief justice and the court. Petitioner bears the burden of the due process principles overriding the kansas legislators judgment in this case and adopting a mens rea in insanity and he is not carry that burden. Petitioners object that the court should recognize the theory of moral capability and impose that uniformly across. But the problem of the approach is both a matter of history and contemporary practice, there has been no agreement on the precise circumstances when Mental Illness should excuse criminal responsibility. I like to begin with hypotheticals throughout because i think if its actually illustrating even in contemporary jurisdiction today there is a basic divide on when someone should be entitled for the insanity defense. The difference between legal wrong and moral wrong, even in those jurisdictions that adopt a test with petitioners are opposing there is treatment of defendants based on if they can appreciate their conduct violated the law and constitution the crime or not. Imagine the defendant hears voices that command him to kill in order to save the human race. He knows that a murderous crime and he be violating the law but he thinks the action is morally justified because of his Mental Illness. In a substantial number of jurisdictions he would not be entitled to invoke the insanity defense. Articulate moral culpability i think in history it would actually raise the possibility of challenging state law explanation. Excuse me every state has a defense. They all vary. They all have different exceptions, they all have different articulations, there has never been a common one. But all 50 have them. In the essence of this is to find as compulsion. Where we give incredible latitude to the states to define the circumstances. And i think what your adversary is saying, making this go to intent and taking out some depreciation from the true lunatic who knows its wrong to kill a person but the tv made him do it, no volition whatsoever t to for the law and ability is more and capacity rather than capacity the intentbased defenses dont encompass that in any way. This is not where we found that the two test were incompetent of the first. That is what the problem is. There is in essence just as there is an essence of compulsion as a defense mechanism and there is some minor amount that has to excuse criminal liability. In kansas has recognized competence and capacity as the way you excuse instability when assessing difficult issues of how Mental Illness should function as criminal culpability and a Justice System. You know something is against the law and still not have the ability to conform the conduct by making a moral choice, i say it is only a moral choice, i say because of my morality could i physically stop myself, yes. Someone who is insane cannot physically stop himself. That is a different i agree its a different test of insanity as recognized in jurisdictions have struggled across time and across different places and settled on different variants and try to identify the precise circumstances. What you are suggesting is a test for insanity is not a test for insanity at the usual intent requirement that we apply to all defendants, if the defendant does not have the intent to kill in the nonculpable. It has nothing to do with his insanity or not. Is there Something Else that is necessary and we believe a lot of flexibility to states or Something Else that relates particularly to insane defendants and their ability to say because i have a Mental Illness that has to be something more . I dont think there is Something Else. And if this is recognized it will be history. They need to come forward with historical consensus establishing theres a fundamental principle that their approach is violating in the approach itself one that links to the commonlaw early articulation of insanity that was long understood that one of the ways he might try to identify the individual should be declared legally insane as a concept with a look at those who have the capacity to inform criminal intent. Lets say i disagree with this. When i look back at history i see lots of cases, a number of others which make it quite clear, people who had an intent to kill and what the commonlaw was saying and even though they had the intent to kill there was going to be of further inquiry into how the insanity limited the moral understanding. In their understanding of wrongfulness of their act. If i think that is all over the history, hadaway find that for you . Even if you thought this was a novel approach that did not have recent history and they have recognized outlier states are not necessarily violating due process, leland versus oregon was a case where organ was only state in the nation that required to prove insanity beyond a reasonable doubt. I dont think that alone to think somehow this is violating a fundamental principle. I think looking at the instructions for some of the cases you mentioned like lex versus arnold, the jury was instructed that the defendant had to be shown to have no understanding or memory that he couldnt form no one intent whatsoever. That is a restrictive test. Its focus on the same idea is less helpful to go over each case one by one then for you to tell me that if what i think is true, the history, there is a ton that suggest that there was something more than a requirement that the defendant be able to inform the intent to kill. Does she win . I dont think so. The petitioner bears the burden to articulate with precision what that something more is that was the point of my question. I think the law has many ways of different circumstances trying to separate individuals for whom the criminal Justice System is not going to work in terms of the crimes. Once the wind blew my arm, because in address case youre looking to see if the defendant could have done otherwise with insanity you are close to that. Often, its a question of could the defendant have done otherwise and even were not, is this individual so different from an ordinary individual that it does not make sense to apply the law. If Something Like that is going on, then my question, if in fact he is the dog, why isnt it, the dog told me too do it, that is the fourth time ive asked that but i would like to know what do you think about it. These are obviously difficult questions and ones that society have wrestled with with sentries to trying to balance the medical and laura under moral judgments in this court has long recognized that they have a principal responsibility to do that and theres various ways they can decide to distinguish between the two defendants. One thing for the incapacity test on whether the individual thinks that he shot was the dog might be an easier inquiry for injuries to undertake and readily observable Mental Illness and less likely on what was in the defendants mind versus right versus wrong and also think looking at consideration for the individual culpability they dont want an onoff switch but want to shift the consideration to the sentencing stage where they can make individual culpability and ultimately dense modern thought there is an irreversible minimum of due process that requires the insane to be not convicted by a judge put in a Mental Institution by a judge but under the jury. There would still be a question of how you define who is the insane, thats the legal concept and no single formulation and for this court to articulate the theory of culpability could go into question state law across the nation making these difficult judgments. Yet five minutes remaining. Thank you mr. Chief justice, id like to make three quick points. The problem with the mens rea approach to get to our point, is scrapes out the why, the underlying motivation fueled by Mental Illness that explains the defendants act and thats been a part of the history for centuries. And that gets to the dog example. Its completely arbitrary. I dont know why if you think one defendant who thinks a dog is shooting a dog versus another who the dog is ordering him to shoot someone else makes any difference whatsoever. The first person is acquitted and left on the streets in the second is put in jail and may be put to death. The second piece of this, no safety net, what kansas does is more extreme, it limits the Mental Illness that can come in and is essentially advocating. And it never explains why there is any life it is fundamentally different than what we have had historically and what 48 jurisdictions retain. Id like to return to my friend to the other side notion there is some limits, he does not suggest anything, if you take 39 and 40, basically everything is up for grabs, there can be no mens rea, selfdefense, all of these differences are on the line because according to them all that is required in kansas is a voluntary act and intentionality. Finally turning back to history, it is not right to say the right and wrong principle is a 19th century invention, there is a wall of cases and authorities starting in the 1500s and continuing on interrupted all the way through until 1843, there is cases here and in england applying to right and wrong principle. The contrast history favors us in all the due process is a rigorous burden for petitioner to meet, we satisfy her because they have taken something out of our fundamental criminal culpability and what we believe is a country, they scraped it and punishing the insane as a result. I want to ask you a question if you finish the comment you want to make. In your reply brief, you say that the states premise is that insanity was tied to a lack of mens rea. And you say you agree with that right . That would have to be a moral blame worthiness in every case. Not just those were the lack of blameworthiness is attributable to a mental disorder however, that is defined. If i understand your question, yes. Mens rea historically is commonlaw intent and contains a moral component. That would apply across the board. It would with the exception that i assassinated the political leader because he is an evil person and he will do evil things. No because only people that this is traditionally been applied to are the insane and you are arguing for a separate insanity defense and that is inconsistent with the historical record as you yourself understand which is that it was tied to mens rea which is categorical and applies in every single case. What is wrong with that . To the extent it was tied to mens rea was the ability to choose between right and wrong. So that is very different than what kansas has today which is no inquiry into that. These 18th century cases that talk about more capability or mens rea in the same breath are hard to understand but you have to take into account can i finish my sentence mr. Chief justice. [laughter] you have to take into account the innocen 18 century an earlyh century of understanding how the human mind works was very different from what we have today. There was not any such thing as psychiatry in 1971. Is that wrong customer. I went to answer this distinctly. It is not about what Mental Illness was or what its about, how we treat insane people, the narrow group, Everybody Knows who they are when they decide and is not about punishing people when they dont know right from wrong. Thank you counsel the case is submitted. Cspan washington journal live every day with news and policy issues that impact you. 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