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What The Supreme Court’s Decision Reveals About The Flaws In The Insanity Defense

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On Monday, the U.S. Supreme Court ruled 6 to 3 that states could abolish the insanity defense. In doing so, the justices affirmed a 2018 decision by the Kansas Supreme Court upholding the conviction of James Kraig Kahler.

On Thanksgiving weekend 2009, Kahler intentionally used a high-powered rifle to shoot and kill his estranged wife, their two teenage daughters and Mrs. Kahler’s grandmother. At the time of the crime, the Kansas man was in the midst of a bitter divorce and had just been fired from his job as a utilities official.

A psychiatric expert hired by the defense diagnosed the Kahler with major depression and obsessive-compulsive personality disorder, and concluded that his condition was so severe that he "completely lost control" of his actions, so that “[the shooting] wasn’t rational thinking.”

Kahler wanted to argue that he should be found not guilty because he was not rational at the time of the crime and was unable to make a moral judgment. But Kansas abolished the insanity defense in 1995, following similar steps by Montana in 1979, Idaho in 1982, and Utah in 1983. The jury convicted Kahler of murder and sentenced him to death by lethal injection in 2011.

Arguing before the U.S. Supreme Court last fall, an attorney representing Kahler told the justices that, "For centuries, criminal culpability has hinged on the capacity for moral judgment, to discern and to choose between right and wrong." It is therefore unconstitutional, she contended, for Kansas to deny defendants the chance to argue why they did not appreciate why their conduct was wrong.

In their review, however, the justices decided that the Kansas legislature did not violate the U.S. Constitution by denying Kahler the right to present an insanity defense.  

I believe that Kahler should have been allowed to make an argument that he was insane, although I do not necessarily believe that his argument should have prevailed. I maintain, only, that he deserved a chance to make the case that was insane and, therefore, eligible to be excused from blame and punishment.

Granted, Kansas allows defendants’ mental illness to be taken into account at trial and in determining the sentence, but as legal scholars have noted, “a lenient sentence doesn’t justify a wrongful conviction.”

Upon hearing the Court’s decision, our thoughts turned to the recent high-profile case of 37-year-old Grafton Thomas. On the seventh night of Hanukkah last December, he stormed into the home of a Hasidic rabbi in the New York City suburb of Monsey and swung a machete at the worshippers who had gathered, stabbing five Orthodox men. On March 29, one of his victims, a 72 year old rabbi, died of head injuries*.

The federal government has charged him with ten counts of committing hate crimes.

At first, Thomas’ crime seemed like a straightforward case of anti-Semitism. New York Governor Andrew Cuomo called it  an “act of domestic terrorism.” According to police, Thomas’ internet browsing searches included “German Jewish Temples near me” and “Why did Hitler hate the Jews?”

Yet Thomas, who is black, was hardly the archetype of a Nazi sympathizer, and another dimension to the tragedy soon emerged.  According to his lawyer, Thomas had heard a “voice talking to him about a piece of property that he understood was in that [rabbi’s] house.” And a psychiatric evaluation conducted in January at the request of his lawyer deemed Thomas unfit to stand trial.

At the time, the doctor noted, Thomas was experiencing auditory hallucinations that were sometimes “threatening or commanding.” He had been diagnosed with schizophrenia in his 20s, treated on and off over the years, and stopped taking Latuda, an antipsychotic medication, a month before the rampage. Thomas had displayed no animosity toward Jews in the past.

Thomas will undergo a federal competency exam at some point this spring or summer, at which the January psychiatric evaluation and other evidence will be considered. If found unfit to stand trial, he will be sent to a psychiatric facility for treatment so that he can be restored to competence. If he is made competent for trial, he will return to court and federal prosecutors will try to convict him.

It is difficult, however, to claim that Thomas knowingly attacked out of hate. If that hate was powered by distorted ideas produced by a mental defect, how can the offender be held responsible for it? And if his hateful beliefs dissolve after he is treated with anti-psychotic medication, then how can he be viewed as a bigot?

Presumably, Thomas’ lawyer will invoke the federal insanity defense, which requires the defendant to prove by clear and convincing evidence that he " was unable to appreciate the nature and quality or the wrongfulness of his acts” due to a “severe mental disease or defect.”

But the problem with insanity defenses is that they only succeed about 25 percent of the time (and are raised in under one percent of felony cases.) This is true of both state and federal insanity pleas. If Thomas is not acquitted on grounds of insanity, he will almost surely spend much of the rest of his life in prison.  

So while insanity defenses are essential for those who can meet their extraordinarily high bar, more is needed.

There should be a middle ground between the full excuse provided by the rarely successful insanity defense and the harsh penalties that accompany a conviction for serious crimes. In Thomas’ case, when allegedly hateful motivation is the product of mental pathology, the defendant should be held less responsible, even if he is found to bear some responsibility.

Legal scholar Stephen J. Morse, a professor of law at the University of Pennsylvania, has proposed a new legal principle that could apply to Thomas’ crime and, more broadly, to all crimes committed by those with substantial rationality defects, usually as a result of a significant mental disorder. “Present law is unfair,” Morse says, “because it does not sufficiently permit mitigating claims.” Although judges have the discretion to consider mitigation on the basis of mental illness when setting sentences, they do not reliably use their discretion.

Morse proposes to give the jury the option of finding a defendant Guilty but Partially Responsible rather than guilty, not guilty, or not guilty by reason of insanity. If a defendant were found guilty but partially responsible, there would be a legislatively mandated reduction in his sentence. 

If forthcoming details of Grafton Thomas’s mental status when he attacked do not meet the criteria for an insanity defense, his compromised rationality at the time should at least be treated as a mitigating factor. “Criminal law should not punish defendants more than they deserve,” Morse writes. If the government prevails in its hate crime prosecution against Thomas, a man whose hate motivation was almost surely produced by abnormal mental processes, Thomas is likely to face unduly harsh punishment.

Morse’s Guilty by Partially Responsible doctrine applies equally well to another defendant across the country who is awaiting sentencing. In the summer of 2018, John Lee Cowell, 27, attacked two sisters on a BART station in Oakland, California. Nia Wilson, 18, bled out from a slashed throat on the platform, and the other sister was stabbed in the neck but survived.

Cowell pled not guilty by reason of insanity. He told the jury in testimony last month that he believed the Wilson sisters were part of a gang of aliens who had kidnapped his grandmother, “wouldn’t give her back,” and were going to harm her. Records attest that he was diagnosed with schizophrenia.

Earlier this month, an Alameda County jury found Cowell guilty of first-degree murder. A week later, the presiding judge found him sane. Cowell now faces the death penalty or life in prison without the possibility of parole, and will be sentenced on April 14.

Individuals whose criminal acts flowed from a deranged capacity for rational thinking deserve the opportunity to show that they were not responsible by presenting an insanity defense. Congress and state legislatures should therefore reject the repeal option offered by the Kahler decision.

In addition, the law needs broader accommodations for psychotic defendants who do not prevail on the insanity defense. We need a third doctrine that recognizes, as Morse puts it, “that with diminished rationality, there is diminished responsibility.”

Note: Scott Lilienfeld is the Samuel Candler Dobbs Professor of Psychology at Emory University and contributed to this article.

*Correction: An earlier version of this article previously stated that there were no fatalities. It has been updated due to the rabbi’s passing.

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