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In the Supreme Court of the United States ______JAMES KRAIG KAHLER, Petitioner, V

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In the Supreme Court of the United States ______JAMES KRAIG KAHLER, Petitioner, V No. 18-6135 In the Supreme Court of the United States __________________ JAMES KRAIG KAHLER, Petitioner, v. STATE OF KANSAS, Respondent. __________________ On Writ of Certiorari to the Supreme Court of the State of Kansas __________________ BRIEF OF AMICI CURIAE STATES OF UTAH, ALABAMA, ALASKA, ARKANSAS, FLORIDA, GEORGIA, IDAHO, INDIANA, LOUISIANA, MISSOURI, MONTANA, NEBRASKA, OHIO, OKLAHOMA, SOUTH CAROLINA, AND TEXAS SUPPORTING RESPONDENT __________________ SEAN D. REYES Utah Attorney General TYLER R. GREEN* Utah Solicitor General THOMAS B. BRUNKER Deputy Solicitor General ANDREW F. PETERSON Assistant Solicitor General 350 N. State Street, Suite 230 Salt Lake City, UT 84114-2320 Telephone: (801) 538-9600 Email: [email protected] *Counsel of Record Counsel for Amicus Curiae State of Utah Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES . iii INTEREST OF AMICI CURIAE ................ 1 SUMMARY OF ARGUMENT . 1 ARGUMENT . 4 I.THE DUE PROCESS CLAUSE DOES NOT REQUIRE STATES’ CRIMINAL LAWS TO ADOPT A PARTICULAR THEORY OF MORAL CULPABILITY.............. 4 A. The States have always had broad sovereign power to define crimes, which entails normative judgments about what counts as culpable conduct. 4 B. Moral capacity is not a constitutional prerequisite to imposing criminal liability. 6 1. The historical record shows that moral capacity never has been a uniform part of the insanity defense. 7 2. States today routinely impose criminal liability irrespective of an accused’s moral capacity. 15 C. Constitutionalizing a moral capacity defense would commit the Court to substantial policymaking and produce troubling consequences.. 19 II. THE EIGHTH AMENDMENT DOES NOT REQUIRE A MORAL CAPACITY DEFENSE. 23 ii A. Petitioner did not press, and the Kansas Supreme Court did not pass upon, his new Eighth Amendment claim. 23 B. Nothing in this Court’s Eighth Amendment precedent requires States to provide an insanity defense. 26 C. There is no genuine national consensus that moral capacity is a necessary predicate to criminal liability.. 28 CONCLUSION. 30 iii TABLE OF AUTHORITIES CASES Adams v. Robertson, 520 U.S. 83 (1997). 23, 24 Arnold’s Case, 16 How. St. Tr. 596 (1724) . 15 Atkins v. Virginia, 536 U.S. 304 (2002). 23, 27, 29 Brecht v. Abrahamson, 507 U.S. 619 (1993). 4 Cardinale v. Louisiana, 394 U.S. 437 (1969). 25 Clark v. Arizona, 548 U.S. 735 (2006). 7, 26 Durham v. United States, 214 F.2d 862 (D.C. Cir. 1972). 9 Eddings v. Oklahoma, 455 U.S. 104 (1982). 27 Finger v. Nevada, 27 P.3d 66 (Nev. 2001) . 29 Graham v. Florida, 560 U.S. 48 (2010). 27, 28 Gundy v. United States, 139 S. Ct. 2116 (2019). 6 Hadfield’s Case, 27 State Trials 1281 (1800) . 9 iv Hall v. Florida, 572 U.S. 701 (2014). 23 Harmelin v. Michigan, 501 U.S. 957 (1991). 28 Hentzner v. State, 613 P.2d 821 (Ala. 1980). 17 Illinois v. Gates, 462 U.S. 213 (1983). 25, 26 Jerome v. United States, 318 U.S. 101 (1943). 16 Jones v. United States, 463 U.S. 354 (1983). 5 Jordan v. De George, 341 U.S. 223 (1951). 17 Lambert v. California, 355 U.S. 225 (1957). 18 Leland v. Oregon, 343 U.S. 790 (1952). 5, 26 Lockett v. Ohio, 438 U.S. 586 (1978). 27 McCleskey v. Zant, 499 U.S. 467 (1991). 4 McGoldrick v. Compagnie Generale, 309 U.S. 430 (1940). 26 Miller v. Alabama, 567 U.S. 460 (2012). 27, 29, 30 v Montana v. Egelhoff, 518 U.S. 37 (1996). 7, 8, 26 Moore v. State, 574 S.W.2d 122 (Tex. Crim. App. 1978). 18 Morissette v. United States, 342 U.S. 246 (1952). 17 Oregon v. Ice, 555 U.S. 160 (2009). 1 Palko v. Connecticut, 302 U.S. 319 (1937). 7 Parsons v. State, 2 So. 854 (Ala. 1887) . 9 Patterson v. New York, 432 U.S. 197 (1977). 1, 7, 26 Penry v. Lynaugh, 492 U.S. 302 (1989). 27, 28 People v. Conway, 849 N.E.2d 954 (N.Y. Ct. App. 2006) . 18 People v. Lyttle, 408 N.Y.S.2d 578 (Co. Ct. 1976). 19 People v. Matthews, 7 Cal. App. 4th 1052 (1992) . 17 Powell v. Texas, 392 U.S. 514 (1968). 5, 6 Roper v. Simmons, 543 U.S. 551 (2005). 27, 28 vi Santillanes v. State, 849 P.2d 358 (N.M. 1993) . 18 State v. Glass, 620 N.W.2d 146 (N.D. 2000). 17 State v. Pike, 49 N.H. 399 (1870) . 9 State v. Yanez, 716 A.2d 759 (R.I. 1998) . 17 Trop v. Dulles, 356 U.S. 86 (1958). 28 United States v. Antone, 742 F.3d 151 (4th Cir. 2014). 22 United States v. Currens, 290 F.2d 751 (3d Cir. 1961) . 10 United States v. Freed, 401 U.S. 601 (1971). 17 United States v. Gay, 522 F.2d 429 (6th Cir. 1975). 21 Wade v. United States, 426 F.2d 64 (9th Cir. 1970). 21 Yee v. Escondido, 503 U.S. 519 (1992). 23, 24, 25 STATUTES 11 Del. Code § 401 . 19 18 U.S.C. § 17 . 29 vii 21 U.S.C. § 333(a)(1) . 17 28 U.S.C. § 1257 . 23 720 Ill. Comp. Stat. 5/6-2 . 19 Alaska Stat. § 12.47.010(a) (1982). 29 Colo. Rev. Stat. § 18-3-106. 17 Idaho Code Ann. § 18-207 (1986). 29 Idaho Code Ann. § 46-14-102 (1979) . 29 Kan. Stat. Ann. § 22-3220 (2009) . 6, 7, 24, 25 Model Penal Code § 4.01 . 19, 21 Mont. Code Ann. § 46-14-102 (1979) . 29 Nev. Rev. Stat. § 193.220 (1995) . 29 Utah Code Ann. § 76-2-305(1) (1983) . 29 OTHER AUTHORITIES AAPL Practice Guideline for Forensic Psychiatric Evaluation of Defendants Raising the Insanity Defense, 42 J. AM. ACAD. PSYCHIATRY & L. (2014 Supp.) . 14 AMA, Reports of Council on Long Range Planning and Dev. (June 2005) . 14 Susanna L. Blumenthal, LAW AND THE MODERN MIND: CONSCIOUSNESS AND RESPONSIBILITY IN AMERICAN LEGAL CULTURE (Harvard Univ. Press 2016) . 11, 13, 15 viii Benjamin Cardozo, What Medicine Can Do for Law, in LAW AND LITERATURE AND OTHER ESSAYS AND ADDRESSES (1931) . 10 Committee Report, Insanity Defense in Criminal Trials and Limitation of Psychiatric Testimony, 251 J. AM. MED. ASS’N 2967 (1984) . 13, 14 COOLEY’S BLACKSTONE Vol. I (4th ed.) . 17 John Elwell, A MEDICO-LEGAL TREATISE ON MALPRACTICE AND MEDICAL EVIDENCE: COMPRISING THE ELEMENTS OF MEDICAL JURISPRUDENCE (1860) . 12, 13 Federal Bureau of Investigation, Killed in the Line of Duty: A Study of Selected Felonious Killings of Law Enforcement Officers (1992) . 22 Abraham S. Goldstein, THE INSANITY DEFENSE (Yale Univ. Press 1967) . 9 John P. Gray, Moral Insanity, in AM. J. OF INSANITY 14 (Apr. 1858) . 12 Gary Greenberg, Psychiatry’s Incurable Hubris, THE ATLANTIC, Apr. 2019, https://www. theatlantic.com/magazine/archive/2019/04/mind- fixers-anne-harrington/583228/ . 6 Robert D. Hare, Psychopaths and Their Nature: Implications for the Mental Health and Criminal Justice System, in Millon et al.. 21 HISTORIC U.S. COURT CASES: AN ENCYCLOPEDIA (John W. Johnson ed., 2d ed. 2001) . 8 ix Insanity Defense Work Group, American Psychiatric Association Statement on the Insanity Defense, 140 AM. J. PSYCHIATRY 681 (1983). 13 Mary Ann Jimenez, CHANGING FACES OF MADNESS: EARLY AMERICAN ATTITUDES AND TREATMENT OF THE INSANE (1987). 16 Norval Morris, MADNESS AND THE CRIMINAL LAW (1982). 15, 18 Stephen J. Morse & Morris B. Hoffman, The Uneasy Entente Between Legal Insanity and Mens Rea: Beyond Clark v. Arizona, 97 J. CRIM. L. & CRIMINOLOGY 1071 (2007) . 20, 21 Overholser, Criminal Responsibility: A Psychiatrist’s Viewpoint, 48 A.B.A. J. 527 (1962) ....................................... 22 Henry Richards, Evil Intent: Violence and Disorders of the Will, in PSYCHOPATHY: ANTISOCIAL, CRIMINAL, AND VIOLENT BEHAVIOR (T. Millon, E. Simonsen, M. Birket-Smith, & R. D. Davis eds., 1998) . 21 Paul Robinson, 2 CRIM. L. DEF. § 173(d)(3) (1984) . 20 Benjamin Rush, MEDICAL INQUIRIES AND OBSERVATIONS, UPON THE DISEASES OF THE MIND (1812). 10, 11 Henry Weihofen, INSANITY AS A DEFENSE IN CRIMINAL LAW (1933) . 8 Wharton, CRIMINAL LAW § 26 (12th ed.) . 16 x Francis Wharton, 1 WHARTON AND STILLÉ’S MEDICAL JURISPRUDENCE (3d ed., 1873) . 11, 12 1 INTEREST OF AMICI CURIAE “It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal government.” Patterson v. New York, 432 U.S. 197, 201 (1977). Hence States prosecute the vast majority of crimes in the country. And States will bear the disproportionate weight of any constitutional strictures the Court places on the legislative prerogative to define moral and legal culpability. In short, this case threatens to impinge “the authority of States over the administration of their criminal justice systems,” which “lies at the core of their sovereign status.” Oregon v. Ice, 555 U.S. 160, 170 (2009). In prior similar cases, the Court never has “lightly construe[d] the Constitution so as to intrude upon the administration of justice by the individual States.” Patterson, 432 U.S. at 201. Amici urge the Court to stay that course. Today’s increasingly pluralistic society demands that States retain flexibility to adapt their criminal laws to changing social, political, and scientific conditions that affect them in view of their unique democratic preferences and moral beliefs. SUMMARY OF ARGUMENT Neither the Due Process Clause nor the Eighth Amendment requires the States to provide any particular insanity defense to criminal liability. I. The Constitution leaves almost exclusively to the States the sovereign prerogative to define and enforce the criminal law. The People do so through their elected representatives, who make moral judgments 2 about blameworthiness by deciding which conduct merits criminal liability.
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