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 THE UNITED STATES SUPREME COURT'S
ENDURING MISUNDERSTANDING OF INSANITY
David DeMatteo*, Daniel A. Krauss**, Sarah Fishel***, and Kellie
Wiltsie****

ABSTRACT

Within mental health law, the legal defense of insanity has

received a disproportionateamount of attention. Classified as a
legal excuse, the insanity defense generally negates legal
blameworthinessfor criminal defendants who successfully prove
that at the time of the offense, they did not know rightfrom wrong
or were unable to conform their conduct to the requirementsof the
law, due to an underlying mental health condition. The insanity
defense has a lengthy history in the United States, with several
different formulations and numerous court decisions addressing
various aspects of the defense. Despite its firm entrenchment in
U.S. criminal law, with almost all states and the federal courts
having some version of the insanity defense, the United States
Supreme Court has demonstrated a startling level of confusion
when decidingcases involving the insanitydefense and relatedbut
distinct concepts. This article (a) discusses the nature of the
insanity defense by distinguishing it from related but distinct
mental health law defenses, (b) provides a detailed analysis of
United States Supreme Court cases that illustrate the Court's
confusion regardingthe insanity defense, and (c) explores why the
Court's confusion is detrimental in multiple ways and to multiple
stakeholders and offers suggestions for how the Court can
meaningfully move forward to alleviate the effects of its
longstandingconfusion.

* David DeMatteo, JD, PhD; Professor of Law, Thomas R. Kline School of Law, Drexel
University; Professor of Psychology, Department of Psychology, Drexel University; Director, JD/PhD
Program in Law and Psychology, Drexel University.
** Daniel A. Krauss, JD, PhD; Professor of Psychology, Department of Psychology, Claremont
McKenna College.
*** Sarah Fishel, MS, JD; PhD expected 2023, Department of Psychology, Drexel University.
**** Kellie Wiltsie; JD expected 2022, Thomas R. Kline School of Law, Drexel University; PhD
expected 2025, Department of Psychology, Drexel University.

34
Winter 2022 MISUNDERSTANDING OFINSANITY 35

INTRODUCTION

Throughout its long history, the Supreme Court of the United States has
issued decisions across highly diverse topic areas, ranging from medical and
economic2 to religious 3 and technological. 4 Although the Supreme Court need not
develop heightened expertise in each of these (and other) topic areas, it must possess
a sufficient degree of substantive knowledge to address the constitutional questions
embedded in these diverse content areas. An inadequate understanding of the fields
in which the constitutional questions arise can lead to judicial decisions that fail to
recognize the nuances in particular contexts and, therefore, fail to provide
meaningful judicial guidance for other courts. 5
Concerns about the Supreme Court's knowledge in particular content areas
have become more salient with recent advances in medicine, science, technology,
and other areas, which have greatly increased the level of complexity of some of the
issues addressed by the Court.6 Unfortunately, there is empirical evidence that some
Supreme Court Justices have exhibited a static or even decreasing level of knowledge
and expertise in certain topic areas throughout their tenure on the Court; the obvious
concern is that the Court's failure to keep pace with developments in various fields
can have a negative impact on the accuracy and utility of its judicial decisions.7
One of the areas in which the U.S. Supreme Court has demonstrated a
longstanding and startling disconnect between its understanding of the subject matter
and its decisions is mental health law.8 The judiciary has historically had an uneasy
relationship with social science research in particular, and mental health evidence

1. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (addressing constitutionality of abortion); Buck v.
Bell, 274 U.S. 200 (1927) (addressing constitutionality of eugenic sterilization).
2. See, e.g., N. Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (addressing
constitutional aspects of bankruptcy); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911)
(addressing constitutionality of business monopolies).
3. See, e.g., Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (addressing the
separation of church and state).
4. See, e.g., Reno v. ACLU, 521 U.S. 844 (1997) (addressing the constitutionality of the
Communications Decency Act which prohibited certain obscene and indecent communications on the
internet).
5. Anne Lippert & Justin Wedeking, Is JudicialExpertise Dynamic: JudicialExpertise, Complex
Networks, and Legal Policy, 2016 MICH. ST. L. REV. 567, 569 (2016) ("[A] lack of expertise may have
unhealthy effects on U.S. democracy if they hinder the ability ofjudges to render just and fair decisions.").
6. See id. ("In short, the growing complexity of our legal system and a lack of judicial expertise
present an important concern.").
7. Id at 604 ("We found that not all Justices developed expertise as they gained more experience.
In fact, some Justices increased their expertise, but others either stayed the same or declined.... In
particular, the finding that some Justices' expertise declined over time (for whatever reason) suggests that
legal policy may have suffered.").
8. See generally, GARY B. MELTON, JOHN PETRILA, NORMAN G. POYTHRESS, CHRISTOPHER
SLOBOGIN, RANDY K. OTTO, DOUGLAS MOSSMAN, & LOiS O. CONDIE, PSYCHOLOGICAL EVALUATIONS
FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS (4th ed. 2018)
(providing overview of many areas in which mental health and law intersect in criminal, civil, and
administrative contexts).
36 NEW MEXICO LAW REVIEW Vol. 52

more specifically.9 Although the U.S. Supreme Court has a lengthy tradition of
relying on social science data and being attendant to amicus curiae briefs submitted
by several national mental health organizations (e.g., American Psychological
Association,10 American Psychiatric Association), the Court has inconsistently
adopted social science research, often misused the research to support its opinions,
and misunderstood key points related to best practices in the mental health
professions."
The disconnect between the U.S. Supreme Court's jurisprudence and
mental health law is perhaps most evident in a series of decisions over the past nearly
forty years that have addressed the law relating to a criminal offender's sanity.1 2 The
two relevant legal concepts central to the Court's confusion-insanity and mens
rea-are distinct legal doctrines addressing distinct legal questions with distinct
applications. Yet, the U.S. Supreme Court has (a) consistently demonstrated a
fundamental misunderstanding of both legal concepts, (b) confused insanity and
mens rea with unrelated mental health diagnoses and terminology, and (c)
mistakenly conflated these distinct legal doctrines.1 3 The result is a body of Supreme
Court case law, spanning from the mid-1980s to 2020, that provides little meaningful
guidance to courts, attorneys, litigants, and mental health professionals.
Given the important role of the insanity defense vis-A-vis culpability and
punishment in criminal law, this article examines U.S. Supreme Court jurisprudence
related to the legal construct of insanity to demonstrate how the Court's decisions in
this area have resulted in a body of mental health case law that is conflicting,
confusing, misguided, and not consistent with established best practices in the mental
health profession. Part I of this article describes the legal doctrines of insanity and
mens rea, with a particular focus on how these two legal constructs differ in several

9. See generally JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND
MATERIALS (9th ed. 2018) (describing the oftentimes challenging relationship between legal decisions
and social science evidence, with examples of how courts use and misuse social science data).
10. The American Psychological Association (APA), which is the leading professional organization
for psychologists in the United States, has submitted more than 50 amicus briefs to the Supreme Court of
the United States. See Donald N. Bersoff, APA's Amicus Briefs: Informing Public Policy Through the
Courts, APA MONITOR ON PSYCHOL. June 2013, at 5 (describing APA's history of submitting amicus
briefs to various courts, including the Supreme Court of the United States).
11. See Donald N. Bersoff & David J. Glass, The Not-So Weisman: The Supreme Court's Continuing
Misuse of Social Science Research, 2 U. CHICAGO L. SCH. ROUNDTABLE 279 (1995) (analyzing long and
convoluted history of the judiciary's use, non-use, and misuse of social science evidence). When
describing the relationship between the judiciary and social science research, a prominent legal scholar
once stated: "In fact, if that relationship were to be examined by a Freudian, the analyst would no doubt
conclude that it is a highly neurotic, conflict-ridden ambivalent affair (I stress affair because it is certainly
no marriage)." Donald N. Bersoff, Psychologists and the JudicialSystem: Broader Perspectives, 10 L.
&

HUM. BEHAV. 151, 155 (1986).

12. See generally Lenore E. Walker, David Shapiro & Stephanie Akl, Criminal Responsibility, in
INTRODUCTION TO FORENSIC PSYCHOLOGY, 37-51 (Lenore E. Walker, David Shapiro & Stephanie Akl
eds., 2020) (discussing mental state at time of offense); Bailey Wendzel, Not Guilty, Yet Continuously
Confined: Reforming the Insanity Defense, 57 AM. CRIM. L. REV. 391 (2020) (providing history of
insanity cases in United States case law).
13. See 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) (distinguishing between
legal insanity and mens rea and discussing Supreme Court's confusion in these areas).
Winter 2022 MISUNDERSTANDING OFINSANITY 37

meaningful ways. 14 Part II provides a detailed analysis of several U.S. Supreme

Court cases decided over the past forty-plus years that reflect the Court's
fundamental and enduring misunderstanding of these concepts (a) through its
repeated misunderstanding of the right to psychiatric assistance for criminal
defendants in insanity contexts," (b) by allowing jurors to be uninformed about the
consequences of a successful insanity defense for criminal defendants and society, 16
(c) through its incorrect conflation of the legal defenses of insanity and mens rea,17
and (d) through its confusion of the distinct legal concepts of insanity and
incompetence. 18 Finally, Part III explores why this confusion is detrimental to the
law's, mental health professionals', and the public's view of the insanity doctrine as
well as why it is detrimental to the continued relationship between psychology and
the law. 19 The authors conclude this article by offering some suggestions for a way
forward for the U.S. Supreme Court that may alleviate some of the concerns caused
by its decisions.20

I. CRIMINAL RESPONSIBILITY: INSANITY AND MENS REA

Culpability in criminal law is based on the premise that humans, as rational

actors, have the capacity to make autonomous decisions and can therefore be held
legally responsible if those decisions run afoul of established law. 21 A corollary of
this premise is that individuals with reduced mental capacity, stemming from severe
mental illness or another disability that affects their capacity to have the requisite
state of mind for a crime (e.g., severe intellectual disability), may be less legally
blameworthy.2 2 These principles provide the foundation for the insanity defense and
mens rea.

A. Insanity

Criminal law distinguishes between "excuse" defenses and "justification"

defenses for unlawful behavior. 3 Whereas excuse defenses focus on the personal
culpability of the actor, justification defenses focus on the moral culpability of the

14. See infra Part I.

15. See infra Part II(A).
16. See infra Part II(B).
17. See infra Part II(C).
18. See infra Part II(D).
19. See infra Part III.
20. See supra text accompanying note 19.
21. See CHRISTOPHER SLOBOGIN, THOMAS L. HAFEMEISTER, & DOUGLAS MOSSMAN, LAW AND THE
MENTAL HEALTH SYSTEM: CIVIL AND CRIMINAL ASPECTS (7th ed. 2020) (providing overview of various
concepts in mental health law, including basis of criminal responsibility).
22. See id. at 634; Stephen J. Morse, Treating Crazy People Less Specially, 90 W. VA. L. REV. 353,
370 (1988) (noting complex relationship between mental illness and rational decisions when determining
criminal responsibility and imposing punishments).
23. See Eugene M. Fahey, Laura Groschadl, & Brianna Weaver, "The Angels that Surrounded My
Cradle": The History, Evolution, and Application of the Insanity Defense, 68 BUFF. L. REV. 805, 811
(2020) (differentiating between justification and excuse, while contextualizing the insanity defense);
Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L. J. 1 (2003) (distinguishing
between justification and excuse, and critiquing the bases for these two defenses).
38 NEW MEXICO LAW REVIEW Vol. 52

act.24 Common examples of justification defenses include self-defense, defense of

others, defense of property, war, execution, and the use of force in effecting arrests,
while commonly discussed examples of excuse defenses include duress, involuntary
intoxication, automatism, necessity, provocation, and infancy.25 In short, a claim of
justification negates the actor's wrongdoing, while a claim of excuse negates the
actor's blameworthiness. 26
The insanity defense falls into the category of a legal excuse for criminal
behavior. 27 When proffering an insanity defense, the defendant admits engaging in
the unlawful act (actus reus) but nevertheless claims that the imposition of legal
responsibility is not appropriate because of the defendant's impaired mental state at
the time of the offense. 28 Because of the defendant's impaired cognitive capacity
and/or impaired volitional control due to the presence of mental health symptoms,
the law concludes that the defendant is not morally blameworthy and that the
traditional goals of punishment-deterrence and retribution-would not be furthered
by imposing a punishment. 29
The idea that those without the ability to act rationally should not be held
legally accountable for their behavior has a long history dating back thousands of
years. 30 Precursors of the modern insanity defense for those who were "non compos
mentis,"3 1 or not of sound mind, can be traced back to ancient Greek, Roman, and
Talmudic civilizations. 32 The belief that criminal responsibility, or legal
blameworthiness, should be based on the offender's mental state at the time of the
offense is arguably even reflected in Jesus's last words: "Father, forgive them for
they know not what they do." 3 3 From these early beginnings came the four modern
insanity tests, described in the next four sections, that have been adopted throughout
the United States.34

24. See Fahey, Groschadl, & Weaver, supra note 23, at 811.
25. See Andrew Botterell, A Primer on the Distinction Between Justification and Excuse, 4 PHIL.
COMPASS 172, 173-74, 179-80 (2009) (critiquing the distinction between justification and excuse as
defenses to criminal culpability and civil liability).
26. See id. at 180 (quoting first J.L. Austin, A Pleafor Excuses, 57 PROC. OF THE ARISTOTELIAN SOC,
1, 2 (1957), reprinted in J.L. Austin, PHILOSOPHICAL PAPERS 123-52 (1961); and then quoting Peter
Westen, An Attitudinal Theory ofExcuse, 25 LAW & PHIL., 289, 291 (2006)).
27. See Fahey, Groschadl, & Weaver, supra note 23, at 811.
28. Id
29. Id
30. See Nigel Walker, The Insanity Defense Before 1800, 477 ANNALS AM. ACAD. POL. & SOC. SCI.
25 (1985) (tracing history and evolution of insanity defense); American Academy of Psychiatry and the
Law, AAPL Practice Guideline for Forensic PsychiatricEvaluation of Defendants Raising the Insanity
Defense, 42 J. AM. ACAD. PSYCHIATRY AND L. S3 (2014) (describing history of insanity defense from
Sixth Century B.C. to modern era).
31. Michael Clemente, A Reassessment of Common Law Protectionsfor "Idiots", 124 YALE L.J.
2746, 2748 (2015).
32. See SLOBOGIN ET AL., supra note 21 at 635; see also CHARLES PATRICK EWING, INSANITY:
MURDER, MADNESS, AND THE LAW (2008) (discussing history of excusing unlawful conduct based on
individual's mental functioning at time of act).
33. Luke 23:34 (King James).
34. See SLOBOGIN ET AL., supra note 21 at 636-39.
Winter 2022 MISUNDERSTANDING OFINSANITY 39

1. M'Naghten Test
The M'Naghten test, which is considered the first modern test for insanity,
was developed in England after Daniel M'Naghten's botched assassination attempt
of British Prime Minister Sir Robert Peel in 1843; M'Naghten had delusional beliefs
that Prime Minister Peel was conspiring with the Tories to persecute him.35 After a
public uproar over the jury's finding that M'Naghten was not guilty by reason of
insanity, Queen Victoria asked the fifteen Law Lords in the House of Lords to
establish a standard for the insanity defense, 36 which resulted in the following test:

[T]o establish a defense on the ground of insanity, it must be

proved that, at the time of the committing of the act, the party
accused was laboring under such a defect of reason, from disease
of the mind, as not to know the nature and quality of the act he was
doing; or if he did know it, that he did not know he was doing what
was wrong. 37

The M'Naghten test, which became the accepted rule of law in both England and the
United States, is considered a cognitive test for insanity (to be contrasted with
volitional insanity tests), and it contains both a cognitive incapacity element (i.e., the
defendant not knowing the nature and quality of the act) and a moral incapacity
element (i.e., the defendant not knowing that the act was wrong). 38

2. IrresistibleImpulse Test
Dissatisfaction with the M'Naghten test was immediate and widespread due
to the rigidity and obscurity of its focus on cognitive incapacity, 39 particularly among
medical and mental health professionals who were tasked with applying the
M'Naghten test in the context of a criminal case. It did not take long for courts to
adopt alternative tests for insanity. 40 An early alternative to the M'Naghten test was
the irresistible impulse test.4 1 The irresistible impulse test, which was developed in
England in the early nineteenth century, but not adopted by a U.S. court until 1887,42
stated that a defendant is not legally responsible for the defendant's unlawful conduct
if the two following conditions occur:

35. See Fahey, Groschadl, & Weaver, supra note 23 at 814. Although M'Naghten was attempting to
kill Prime Minister Peel, a leader in the Tory party, he mistakenly killed Peel's personal secretary, Edward
Drummond. See American Academy of Psychiatry and the Law, supra note 30 at S5; Fahey, Groschadl,
& Weaver, supra note 23 at 814.
36. See American Academy of Psychiatry and the Law, supra note 30, at S5 (discussing historical
development of the M'Naghten test for insanity).
37. M'Naghten's Case (1843) 8 Eng. Rep. 718, 719; 10 CL. & F. 200.
38. See SLOBOGIN ET AL., supra note 21, at 636.
39. See Daniel Ward, The M'Naghten Rule: A Re-evaluation, 45 MARQ. L. REV. 506 (1962)
(discussing criticism of the M'Naghten test).
40. 1o. at 507.
41. See Edwin R. Keedy, IrresistibleImpulse as a Defense in the Criminal Law, 100 U. PA. L. REV.
956 (1952) (discussing history and status of irresistible impulse defense).
42. See id. at 991 (discussing adoption of irresistible impulse test by U.S. courts in late nineteenth
century).
40 NEW MEXICO LAW REVIEW Vol. 52

(1) If, by reason of the duress of such mental disease he had so far
lost the power to choose between the right and the wrong, and to
avoid doing the act in question, as that his free agency was at the
time destroyed; (2) and if, at the same time, the alleged crime was
so connected with such mental disease, in the relation of cause and
effect, as to have been the product of it solely.43

Whereas the M'Naghten insanity test focuses on the defendant's cognitive

incapacity, or the defendant's inability to know the nature, quality, and/or
wrongfulness of the act, the irresistible impulse test for insanity focuses on the
defendant's volitional incapacity, or the defendant's inability to control their
behavior; the premise of this test is that offenders who could not control their
behavior at the time of the offense and conform their behavior to the requirements
of the law due to a mental disease or defect should not be held criminally responsible
because it would not further the traditional goals of punishment. 44 Almost
immediately after the irresistible impulse test was articulated, courts encountered
practical difficulties in distinguishing between impulses that are truly irresistible and
impulses that are simply not resisted; the inability to clearly and consistently
differentiate between these two types of impulses led many courts and commentators
to conclude that the irresistible impulse test was not workable in practice. 45

3. Durham Rule
The United States Court of Appeals for the District of Columbia Circuit
subsequently developed the Durham Rule, also known as the Product Test, in 1954.46
The Durham opinion was authored by Judge David Bazelon, a forward-thinking and
progressive jurist, who offered a broad and seemingly straightforward test for
insanity by concluding that a defendant should not be held criminally responsible if
the defendant's unlawful act was the product of mental disease or defect.47 The
Durham Rule allows for more flexibility because it lacks both the cognitive
component of the M'Naghten test and the volitional component of the irresistible
impulse test, instead requiring a simple nexus between the mental disease or defect
and the unlawful act. Unfortunately, the lack of judicial guidance regarding what
satisfies the threshold requirement for a mental disease or defect and how it could be
determined that the unlawful conduct was the proximal result of the mental disease
or defect led to widespread abuse of the test and dissatisfaction among trial courts
faced with proffers of insanity. 48 Despite subsequent modifications of the test

43. Parsons v. State, 81 Ala. 577, 596, 2 So. 854, 866-67 (1887).
44. See SLOBOGIN ET AL., supra note 21, at 637.
45. See Morse & Hoffman, supra note 13, at 1095 ("How do we distinguish between an irresistible
desire and a desire simply not resisted?").
46. Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954); see also State v. Pike, 49 N.H. 399
(1870). Technically, this test was first articulated by the Supreme Court of New Hampshire in 1870, but
it was not adopted by any other jurisdictions until the test was (re)articulated in Durham.
47. See SLOBOGIN ET AL., supra note 21, at 637.
48. See American Academy of Psychiatry and the Law, supra note 30, at S5 (discussing
dissatisfaction with the Durham rule and subsequent legal developments to provide more guidance for
courts); see also Roszel C. Thomsen, Insanity as a Defense to Crime, 19 MD. L. REV. 271 (1959)
(examining criticisms of M'Naghten test and Durham Rule when determining criminal responsibility).
Winter 2022 MISUNDERSTANDING OFINSANITY 41

(including those by Judge Bazelon) intended to provide trial courts with more
guidance, 49 the D.C. Circuit Court abandoned the test in 1972,50 leaving New
Hampshire as the only state to still use the Durham Rule.51

4. American Law Institute Test

One year after the Durham decision, the American Law Institute (ALI)52
proposed the following test for insanity:

A person is not responsible for criminal conduct if at the time of

such conduct as a result of mental disease or defect he lacks
substantial capacity either to appreciate the criminality
[wrongfulness] of his conduct or to conform his conduct to the
3
requirements of law.5

The ALI test is viewed as a hybrid formulation of insanity because it has both a
cognitive component (similar to the M'Naghten test) and a volitional component
(similar to the irresistible impulse test). 54 However, a notable difference is that the
ALI test uses the phrase "lacked substantial capacity," which signifies that the
defendant's cognitive or volitional impairment does not need to be total to satisfy the
test; this is believed to enhance the utility and applicability of the test.55 After the
ALI formulated its version of the insanity test, the majority of federal courts adopted
the ALI test, although many states remain flexible with regard to the application
thereof.56

49. See McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962) (providing narrower definition of
mental illness intended to improve application of Durham Rule).
50. See Brawner v. United States, 471 F.2d 969 (D.C. Cir. 1972) (abandoning Durham Rule and
adopting ALI Test for insanity).
51. See SLOBOGIN ET AL., supra note 21, at 638; see also John Reid, Understanding the New
Hampshire Doctrine of Criminal Insanity, 69 YALE L.J. 367, 390-93 (1960).
52. The American Law Institute (ALI) is a private, nonprofit organization that publishes
Restatements of the Law, Principles of the Law, and Model Codes, with the express intent to remedy the
law's uncertainty and complexity. ALI publications are not controlling unless they are adopted by a
particular jurisdiction, but courts often view ALI resources as persuasive.
53. MODEL PENAL CODE § 4.01(1) (AM. L. INST. 2020).
54. See American Academy of Psychiatry and the Law, supra note 30, at S6 (discussing nature of
irresistible impulse test); David DeMatteo & Alice Thornewill, Irresistible Impulse Rule, in THE SAGE
ENCYCLOPEDIA OF ABNORMAL AND CLINICAL PSYCHOLOGY (Amy Wenzel ed., 2017) (providing
overview of irresistible impulse test and distinguishing it from other test of insanity).
55. See SLOBOGIN ET AL., supra note 21, at 638.
56. See Fahey et al., supra note 23, at 819 (noting ALI test was adopted by more than half of the
jurisdictions). The ALI Test contains an additional component, known as the caveat paragraph, that was
intended to exclude offenders with psychopathic personality from being eligible for the insanity defense;
see also SLOBOGIN ET AL., supra note 21, at 638. The relevant language from the ALI Test states: "As
used in this Article, the terms 'mental disease or defect' do not include an abnormality manifested only
by repeated criminal or otherwise anti-social conduct." MODEL PENAL CODE § 4.01(2) (AM. L. INST.
2020).
42 NEW MEXICO LAW REVIEW Vol. 52

5. Current State of the Insanity Defense

Most states do not use "pure" versions of any of the four insanity tests, so
the tests are best conceptualized as prototypes.57 Various authorities provide different
accounts of how many states have adopted each insanity test, 58 largely based on the
way in which certain jurisdictions' tests that contain components from multiple
insanity tests are categorized, but the U.S. Supreme Court provided the following
tally in its 2020 decision, Kahler v. Kansas: "[s]eventeen States and the Federal
Government use variants of the M'Naghten test . .. [t]hree States have adopted
M'Naghten plus the volitional test," ten states use the "moral incapacity" element
from the M'Naghten test, thirteen states and the District of Columbia use the ALI
Test, one state uses the Durham Rule, one state uses a test that focuses on the
defendant's ability to "comprehend the harmful nature or consequences of the
conduct" and on any impairment of the defendant's ability to "recognize reality,"
and five states do not provide an insanity defense. 59 Based on a different
categorization of state insanity tests, Slobogin, Hafemeister, and Mossman report
that twenty-nine jurisdictions use some version of the M'Naghten test (with three
adding an irresistible impulse component), seventeen jurisdictions use the ALI Test
(13 of which retained the capacity to conform prong), one state uses the Durham
Rule, and five states have provide no insanity defense and conclude that mental
disability is relevant at a criminal trial only on the issue of whether the criminal
defendant had the requisite mens rea for the offense. 60 It is not uncommon for the
Supreme Court to allow different jurisdictions to use different formulations of
doctrines based on the legislative beliefs of that community. This is not the issue
with the Supreme Court's jurisprudence; rather, the issue is the Court's continued
misuse of the term insanity.

B. Mens Rea 61

The insanity defense and mens rea both focus on the offender's mental state
at the time of the offense, but there are key differences between these two legal
constructs. 62 Unlike the insanity defense, the mens rea defense is not an excuse for

57. See SLOBOGIN ET AL., supra note 21, at 640-41.

58. See, e.g., SLOBOGIN ET AL., supranote 21, at 640-41.
59. Kahler v. Kansas, 140 S. Ct. 1021, 1046 (2020) (Breyer, J., dissenting).
60. See SLOBOGIN ET AL., supra note 21, at 640-41.
61. The mens rea defense is alternately referred to as the diminished capacity defense or specific
intent defense. See Jeff Feix & Greg Wolber, Intoxication and Settled Insanity: A Finding of Not Guilty
by Reason of Insanity, 35 J. AM. ACAD. PSYCHIATRY L. 172 (2007) (differentiating insanity from mens
rea). It is important to note that the defense of mens rea is not technically a legal defense; rather, it is the
inability of the prosecution to prove the mens rea element of the charged crime beyond a reasonable doubt.
As such, one court concluded that the mens rea defense is "not a defense at all but merely a rule of
evidence." United States v. Pohlot, 827 F.2d 889, 897 (3d Cir. 1987); see also Francis Bowes Sayre, Mens
Rea, 45 HARV. L. REV. 974 (providing early and interesting discussion of the development of mens rea).
A related but distinct legal concept is the diminished responsibility defense. This defense, which is
sometimes referred to as the partial responsibility defense, permits the court to consider mitigating
evidence relating to the offender's mental state at the time of the offense even if that evidence is legally
insufficient to successfully establish an insanity defense or mens rea defense. The mitigating evidence
can be used by the court to impose a lesser sentence. See SLOBOGIN ET AL., supranote 21, at 697-99.
62. See Morse & Hoffman, supra note 13, at 1085-91.
Winter 2022 MISUNDERSTANDING OFINSANITY 43

the defendant's unlawful behavior; rather, it focuses on the prosecution's inability to

prove the required level of intent of the charged offense.6 3 If the prosecution cannot
meet its legal burden of proving every element of the charged offense beyond a
reasonable doubt, it would be legally inappropriate to convict the defendant of that
charge. 64
In most jurisdictions, if the defense demonstrates that the prosecution did
not prove beyond a reasonable doubt that the defendant possessed the requisite mens
rea for the charged offense, the defendant is acquitted of the criminal charge
requiring specific intent (e.g., first-degree [premeditated] murder) but can
nevertheless be convicted of a lesser charge that requires a lesser degree of mens rea
(e.g., knowledge, reckless disregard) or general intent (e.g., manslaughter). 65
Another significant difference between insanity and mens rea relates to the legal
disposition of the offender. The result of a successful insanity defense is typically
the long-term and indeterminate incapacitation of the defendant in a maximum-
security forensic psychiatric hospital until the individual can show that they are no
longer mentally ill or dangerous, whereas a successful mens rea defense can result
in acquittal, conviction of a lesser crime, or a reduced sentence. 66

C. Guilty But Mentally Ill

For the sake of completeness, a brief discussion of a related legal concept-

guilty but mentally ill (GBMI)-is warranted. 67 Whereas insanity is most often an
affirmative legal defense and mens rea is the prosecution's failure to prove that the
criminal defendant had the requisite mental state for a specific intent crime, GBMI
is a verdict (not a defense). 68 There is some variability in how GBMI verdicts, which
are currently available in more than twenty states, work in different jurisdictions, but
the most common approach is that a defendant who pleads not guilty by reason of
69
insanity can be found guilty, not guilty, not guilty by reason of insanity, or GBMI.

63. See Fahey et al., supranote 23, at 819-20.

64. See id. at 820.
65. See SLOBOGIN ET AL., supra note 21, at 679. Criminal law grades culpability by the mental state
of the defendant at the time of the offense. Offenders who deliberately engaged in behavior that constitutes
a crime are viewed as more culpable that offenders who unintentionally or accidentally committed a crime
through their behavior. The term specific intent applies to the former category, while the term general
intent applies to the latter category. Stated differently, specific intent means that the offender intended the
outcome, while general intent means the defendant was aware or should have been aware of their actions
at the time of the offense. There are also strict liability crimes in which mens rea does not have to be
proven in relation to the actus reus. See id. at 679.
66. See id. at 696.
67. See Morse & Hoffman, supra note 13, at 1122-23; see also Christopher Slobogin, Guilty But
Mentally Ill Verdict: An Idea Whose Time Should Not Have Come, 53 GEO. WASH. L. REV. 494 (1985)
(analyzing and critiquing GBMI verdict, which was developed in response to the acquittal via an insanity
defense of John Hinckley after his attempted assassination of President Reagan in March 1981); John D.
Melville & David Naimark, Punishingthe Insane: The Verdict of Guilty But Mentally IZZ, 30 J. AM. ACAD.
PSYCHIATRY L. 553 (2002) (critiquing GBMI verdict).
68. See SLOBOGIN ET AL., supra note 21, at 734. In most states, the defense must prove insanity by a
preponderance of the evidence. However, roughly 25 percent of states place the burden on the prosecution
to disprove insanity beyond a reasonable doubt. In federal courts, the defendant must prove insanity by
clear and convincing evidence. Id at 642.
69. See id. at 734.
44 NEW MEXICO LAW REVIEW Vol. 52

The GBMI verdict provides a vehicle for a jury to find a defendant guilty of a crime
while simultaneously acknowledging that the defendant was not legally insane but
was nevertheless experiencing some form of mental illness at the time of the
offense. 70
Of note, a defendant found GBMI is considered fully culpable for the
offense, with no concomitant reduction in sentence;7 1 a defendant found GBMI can
receive any sentence, including a death sentence,72 that is appropriate for the offense
in that specific jurisdiction.7 3 Curiously, GBMI is also not a vehicle for providing the
convicted defendant with mental health treatment, despite the court's recognition
that the defendant is mentally ill.7 4 All inmates are entitled to mental health treatment
as part of a comprehensive health care system (per the Eighth Amendment), and a
GBMI verdict does not entitle the convicted defendant to any additional mental
health treatment.7 5 Typically, there are no direct benefits to defendants who are found
GBMI, although it arguably permits the identification of the defendant's mental
health needs and allows the jury to acknowledge the defendant's mental illness. 76
Because the focus of this article is insanity and the related concept of mens rea, the
authors now turn our attention back to those topics.
As discussed, although insanity and mens rea both relate to the defendant's
mental state at the time of the offense, there are fundamental differences-in terms
of definition, application, and defendant disposition-in these distinct legal
constructs. Now that these two legal constructs have been described, the authors turn
our attention to cases in which the U.S. Supreme Court has demonstrated a
misunderstanding of these legal concepts.

II. UNITED STATES SUPREME COURT CASE EXAMPLES

As noted previously, the U.S. Supreme Court has demonstrated a

fundamental misunderstanding of insanity and mens rea at every point in the judicial
process. This misunderstanding has led to a series of rulings that has infringed upon
the constitutional rights of defendants with mental illness, beginning in the early
stages of a criminal case involving the insanity defense (e.g., access to mental health
assistance in preparing the defense) and continuing through sentencing and
execution. The following U.S. Supreme Court case examples highlight the impact of
even small errors in language and understanding on essential jurisprudential
outcomes.

70. Fahey et al., supra note 23, at 825.

71. Morse & Hoffman, supra note 13, at 1122.
72. See Anne S. Emanuel, Guilty But Mentally Ill Verdicts and the Death Penalty: An Eighth
Amendment Analysis, 68 N.C. L. REV. 37 (1989) (discussing constitutionality under Eighth Amendment
of imposing death sentence on defendants found GBMI); People v. Crews, 522 N.E.2d 1167, 1180 (Ill.
1988) (holding defendant found GBMI was still eligible for death sentence).
73. See SLOBOGIN ET AL., supra note 21, at 734.
74. See Morse et al., supra note 13, at 1122; see also Fahey et al., supra note 23, at 825.
75. See Morse et al., supra note 13, at 1122.
76. See SLOBOGIN ET AL., supra note 21, at 741-44.
Winter 2022 MISUNDERSTANDING OFINSANITY 45

A. Misunderstanding the Right to Mental Health Assistance

The right to mental health assistance can set the stage for the success or
failure of a defendant's mental health related claim (insanity or mens rea). In Ake v.
Oklahoma7 7 and Mc Williams v. Dunn,78 the U.S Supreme Court acknowledged the
importance of the right to mental health assistance, but declined to resolve the
question of what kind of mental health assistance is required to satisfy due process.
In declining to create a uniform rule for the right to mental health assistance, the
Court has allowed jurisdictions to decide for themselves. As will be discussed, by
failing to provide a uniform description of the right to mental health assistance,
whether criminal defendants are entitled to an independent forensic evaluator or a
defense consultant, which are very different roles, is largely dependent on the
jurisdiction in which the defendant is charged.

1. Ake v. Oklahoma
Ake v. Oklahoma?9 is one of two cases in which the U.S. Supreme Court
confuses the roles of forensic mental health experts in criminal cases, specifically
the roles of forensic evaluators and forensic consultants. Whereas forensic evaluators
are required to be objective in their assessments and opinions related to a defendant's
mental health, even if those opinions are ultimately adverse to the legal interests of
the party that retained the forensic evaluator, forensic consultants are properly
viewed as part of the defense team. Therefore, confusing the roles of evaluator and
consultant can have significant repercussions. To wit, in his dissent, Justice
Rehnquist states that the Court should have "[made] clear that the entitlement is to
an independent psychiatric evaluation, not to a defense consultant." 80
In 1979, Glen Burton Ake was arrested and charged with two counts of
murder in the first degree and two counts of shooting with intent to kill after
murdering a couple and injuring their two children. 81 His behavior while in custody
pre-arraignment was "so bizarre" that the trial judge sua sponte ordered him to be
examined by a psychiatrist to determine whether Ake would need an "extended
period of mental observation." 82 The examining psychiatrist diagnosed Ake as a
"probable paranoid schizophrenic" and recommended a competency to stand trial
evaluation.83 The competency evaluation designated Ake as "a mentally ill person in
need of care and treatment" and concluded that he was incompetent to stand trial. 84
Ake was determined to be competent to stand trial six weeks later and, at the pretrial
conference, Ake's attorney informed the court that Ake would raise an insanity
defense. 85 Ake's attorney also stated that to effectively prepare and present an
insanity defense, Ake needed to be examined by a psychiatrist to determine his

77. 470 U.S. 68 (1985).

78. 137 S. Ct. 1790 (2017).
79. 470 U.S. 68.
80. Id at 87.
81. Id at 70, 72.
82. Id at 71.
83. Id
84. Id
85. Id at 71-72.
46 NEW MEXICO LAW REVIEW Vol. 52

mental condition at the time of the offense.8 6 Defense counsel further requested that
the court either arrange to have a psychiatrist perform the evaluation or provide funds
for the defense to do so, given Ake's status as an indigent defendant. 87 The trial court
denied the defense request on the basis of the U.S. Supreme Court's decision in
United States ex rel. Smith v. Baldi.88
At trial, Ake presented the sole defense of insanity. 89 Although Ake's
defense attorney called to the stand all the psychiatrists who had previously evaluated
Ake, there was no mental health expert testimony presented by either side on Ake's
mental state at the time of the offense, which is the key legal consideration in insanity
cases. Ake had never been examined for that purpose; Ake was instead evaluated
based on his behavior while in custody and awaiting arraignment.90 At the conclusion
of the trial, the jury was instructed that "Ake was presumed sane at the time of the
crime unless he presented evidence sufficient to raise a reasonable doubt about his
sanity at that time." 91 The jury rejected the insanity defense and found Ake guilty on
all counts. 92
At the sentencing hearing, the prosecution asked for the death penalty, and
rather than presenting new evidence, the prosecution relied on the testimony of the
state psychiatrists who testified during the trial that Ake was "dangerous to society"
to establish his likelihood of future dangerous behavior, 93 one of the statutory
aggravating requirements necessary for execution in Oklahoma. 94 "The jury
sentenced Ake to death on each of the two murder counts and to 500 years'
imprisonment on each of the two counts of shooting with intent to kill." 95 On appeal
to the Oklahoma Court of Criminal Appeals, Ake argued that he was entitled to the
services of a court-appointed psychiatrist to assist in preparation of his insanity
defense because he was an indigent defendant. 96 The appellate court rejected Ake's
argument stating, "We have held numerous times that, the unique nature of capital
cases notwithstanding, the State does not have the responsibility of providing such
services to indigents charged with capital crimes." 97 The case was appealed to the
U.S. Supreme Court to determine "whether, and under what conditions, the
participation of a psychiatrist is important enough to preparation of a defense to

86. Id at 72.
87. Id
88. 344 U.S. 561 (1953) (holding no additional assistance was necessary to provide to indigent
defendant when neutral psychiatrists examined defendant as to his sanity and testified on that subject at
trial).
89. Ake, 470 U.S. at 72.
90. Id
91. Id at 73.
92. Id
93. Id
94. See generally Mitzi Dorland & Daniel Krauss, The Danger of Dangerousness in Capital
Sentencing: Exacerbatingthe Problem ofArbitrary and CapriciousDecision-Making, 29 LAW & PSYCH.
REV. 63, 72-73 (2005).
95. Ake, 470 U.S. at 73.
96. Id
97. Id at 73-74 (quoting Ake v. State, 663 P.2d 1, 6 (Okla. Crim. App. 1983)).
Winter 2022 MISUNDERSTANDING OFINSANITY 47

require the State to provide an indigent defendant with access to competent

psychiatric assistance in preparing the defense." 98
The U.S. Supreme Court first stated broadly that indigent defendants are
entitled to "an adequate opportunity to present their claims fairly within the
adversary system" and that a criminal trial is "fundamentally unfair" if the State does
not make certain that an indigent defendant "has access to the raw materials integral
to the building of an effective defense." 99 The Court further elaborated on numerous
cases with the common theme of meaningful access to justice for indigent criminal
defendants. 100 The Court then analyzed the issue by considering the relevance and
importance of three factors: (1) the private interest that will be affected by the action
of the State; (2) the governmental interest that will be affected if the safeguard is to
be provided; and (3) the probable value of the additionally or substitute procedural
safeguards that are sought, and the risk of an erroneous deprivation of the affected
interest if those safeguards are not provided. 101
In addressing the first two factors, the Court held that both the State and the
individual have a compelling interest in accurate dispositions when the case involved
a criminal proceeding that places an individual's life or liberty at risk.10 2 Turning to
the third factor, the Court relied on the fact that "more than [forty] states as well as
the federal government have decided either through legislation or judicial decision
that indigent defendants are entitled, under certain circumstances, to the assistance
of a psychiatrist's expertise." 103 The Court reasoned that "when the state has made
the defendant's mental condition relevant to his criminal culpability and to the
punishment he might suffer, the assistance of a psychiatrist may well be crucial to
the defendant's ability to marshal his defense." 104 The Court then explained in detail
the role that a psychiatrist plays in a criminal defense. However, this is where the
Court begins to inappropriately blend the roles of an independent evaluator and a
defense consultant:

In this role, psychiatrists gather facts, through professional

examination, interviews, and elsewhere, that they will share with
the judge or jury; they analyze the information gathered and from
it draw plausible conclusions about the defendant's mental
condition, and about the effects of any disorder on behavior; and

98. Id at 77.
99. Id; see Ross v. Moffitt, 417 U.S. 600, 612 (1974).
100. See Griffin v. Illinois, 351 U.S. 12, 19 (1956) (holding that once a State offers to criminal
defendants the opportunity to appeal their cases, it must provide a trial transcript to an indigent defendant
if the transcript is necessary to a decision on the merits of the appeal); Burns v. Ohio, 360 U.S. 252, 257-
58 (1959) (holding that an indigent defendant may not be required to pay a fee before filing a notice of
appeal of his conviction); Gideon v. Wainwright, 372 U.S. 335, 342, 344 (1963) (holding that an indigent
defendant is entitled to the assistance of counsel at trial); Douglas v. California, 372 U.S. 353, 355 (1963)
(holding that an indigent defendant is entitled to the assistance of counsel on his first direct appeal); Evitts
v. Lucey, 469 U.S. 387, 396 (1985) (holding that an indigent defendant's assistance of counsel must be
effective).
101. Ake, 470 U.S. at 77.
102. Id at 78-79.
103. Id at 79. See also 18 U.S.C. § 3006A(e) (stating that indigent defendants shall receive the
assistance of all experts necessary for an adequate defense).
104. Ake, 470 U.S. at 80.
48 NEW MEXICO LAW REVIEW Vol. 52

they offer opinions about how the defendant's mental condition

might have affected his behavior at the time in question. They
know the probative questions to ask of the opposing party's
psychiatrists and how to interpret their answers. Unlike lay
witnesses, who can merely describe symptoms they believe might
be relevant to the defendant's mental state, psychiatrists can
identify the "elusive and often deceptive" symptoms of insanity,
and tell the jury why their observations are relevant. Further,
where permitted by evidentiary rules, psychiatrists can translate a
medical diagnosis into language that will assist the trier of fact,
and therefore offer evidence in a form that has meaning for the task
at hand. Through this process of investigation, interpretation, and
testimony, psychiatrists ideally assist lay jurors, who generally
have no training in psychiatric matters, to make a sensible and
educated determination about the mental condition of the
defendant at the time of the offense. 0 5

The Court starts by describing the role of an independent, objective

evaluator who testifies and informs the factfinder about relevant information relating
to the defendant's mental state. Then, the Court shifts to describing a defense
consultant when it mentions an expert who aids defense counsel in cross-
examination techniques.
It is important to note that leading ethics codes that govern forensic mental
health professionals strongly discourage psychologists and psychiatrists from
engaging in multiple/conflicting relationships in the same case, including serving as
an objective evaluator and consultant. 106 These ethics codes reason that the existence
of multiple relationships serves as a threat to the objectivity necessary for competent
forensic mental health practice. For example, if a forensic mental health professional
was initially asked to serve as a defense consultant and provide assistance with the
defense strategy, it would then be strongly discouraged-and inconsistent with
common sense-for that expert to serve as an independent, objective forensic
evaluator for the same defendant. Not only do these types of multiple relationships
constitute a conflict of interest, but the expert would likely have to defend their
objectivity during cross-examination, which would be challenging if not impossible.
The Court concludes that "without the assistance of a psychiatrist to conduct
a professional examination on issues relevant to the defense, to help determine
whether the insanity defense is viable, to present testimony, and to assist in preparing
the cross-examination of a State's psychiatric witnesses, the risk of an inaccurate
resolution of sanity issues is extremely high." 107 The Court ultimately held that
"when a defendant demonstrates to the trial judge that his sanity at the time of the
offense is to be a significant factor at trial, the State must, at a minimum, assure the
defendant access to a competent psychiatrist who will conduct an appropriate

105. Id. at 80-81 (emphasis added) (citation omitted).

106. See AM. PSYCH. ASS'N, ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT, at 6
(2017); AM. PSYCHIATRIC ASS'N, THE PRINCIPLES OF MEDICAL ETHICS WITH ANNOTATIONS ESPECIALLY
APPLICABLE TO PSYCHIATRY, at 10 (2013); AM. PSYCH. ASS'N, SPECIALTY GUIDELINES FOR FORENSIC
PSYCHOLOGY, at 11-12 (2011). See generally KIRK HEILBRUN, THOMAS GRISSO & ALAN GOLDSTEIN,
FOUNDATIONS OF FORENSIC MENTAL HEALTH ASSESSMENT (2009).
107. Ake, 470 U.S. at 82.
Winter 2022 MISUNDERSTANDING OFINSANITY 49

examination and assist in evaluation, preparation, and presentation of the

defense." 108 Again, the court confuses and combines the roles of a forensic evaluator
and a defense consultant in its holding.
Justice Rehnquist's dissent directly takes issue with the majority opinion's
blending of the roles of independent evaluator and defense consultant. Specifically,
he states "all the defendant should be entitled to is one competent opinion-whatever
the witness' conclusion-from a psychiatrist who acts independently of the
prosecutor's office." 109 Rehnquist further explains, "I see no reason why the
defendant should be entitled to an opposing view, or to a 'defense' advocate."" 0 The
dissent also took issue with both the idea that due process requires a State to make
available an insanity defense to a criminal defendant, and the unclear language
associated with requiring a "preliminary showing that his sanity at the time of the
offense is likely to be a significant factor at trial." 111

2. McWilliams v. Dunn
In McWilliams v. Dunn,11 2 the U.S. Supreme Court doubled down on its
position in Ake v. Oklahoma11 3 and declined to clarify what services forensic mental
health experts are required to provide to indigent defendants in criminal cases. In his
dissent, Justice Alito stated thatAke provided no clear guidance one way or the other
on whether an indigent criminal defendant must be provided with a defense
consultant or a neutral expert and "[t]he most reasonable conclusion to draw from
the Court's silence is that the exact type of expert required . . . remain[s] 'an open
4
question in our jurisprudence."'11
One month after the U.S. Supreme Court decided Ake v. Oklahoma, James
McWilliams was charged with rape and murder." 5 It was agreed by the defense,
prosecution, and court that McWilliams was an "indigent defendant," "his mental
condition was relevant to the punishment he might suffer," and "his sanity at the time
of the offense was seriously in question."116 The trial court granted defense counsel's
pretrial motion for a psychiatric evaluation of McWilliams' sanity, as well as any
mitigating circumstances related to his mental condition that should be considered at
sentencing, and it ordered the State to convene a "Lunacy Commission."117 A three-
member Lunacy Commission composed of psychiatrists provided the trial court with
three conclusions regarding McWilliams' mental state: (1) McWilliams was
competent to stand trial, (2) McWilliams had not been suffering from mental illness

108. Id at 83 (emphasis added).

109. Id at 92 (Rehnquist, J., dissenting).
110. Id
111. Id at 90-91.
112. 137 S. Ct. 1790 (2017).
113. 470 U.S. 68 (1985).
114. McWilliams, 137 S. Ct. at 1803-04 (Alito, J., dissenting) (citing Carey v. Musladin, 549 U.S. 70,
76 (2006)).
115. Id at 1794 (majority opinion).
116. Id at 1798 (citing Ake v. Oklahoma, 470 U.S. 68, 70, 80 (1985)).
117. Id at 1794.
50 NEW MEXICO LAW REVIEW Vol. 52

at the time of the alleged offense, and (3) McWilliams' performance indicated he
was "fak[ing] bad" and "grossly exaggerating his psychological symptoms."18
After being convicted by a jury during the guilt phase, the same jury
recommended imposition of the death penalty after the prosecution presented
multiple witnesses, including two of the psychiatrists who were on the Lunacy
Commission. 119 In the interim between the jury sentencing hearing and the judicial
sentencing hearing, the trial court granted McWilliams' motion for neurological and
neuropsychological examinations.120 Dr. John Goff, a neuropsychologist, examined
McWilliams and submitted his report to defense counsel two days before the judicial
sentencing hearing.12 1 In addition to Dr. Goff's report, defense counsel received both
hospital and prison records relating to McWilliams' mental health treatment shortly
before the sentencing hearing. 12 2
At the sentencing hearing, defense counsel moved for a continuance to
review all of the material provided to them in the prior two days and requested "an
opportunity to have the right type of experts in this field take a look at all of those
records and tell us what is happening with him." 1 2 3 The trial court denied the motion,
and defense counsel was unable to present any mitigating circumstances. 124 The trial
court sentenced McWilliams to death, stating in its sentencing report, "McWilliams
was not and is not psychotic, and ... the preponderance of the evidence from these
tests and reports show McWilliams to be feigning, faking, and manipulative." 1 2 5
McWilliams appealed his sentence, arguing that the trial court denied him
the right to "meaningful expert assistance" provided by the U.S. Supreme Court in
Ake. 12 6 The Alabama Court of Criminal Appeals affirmed McWilliams' sentence,
holding that Dr. Goff's examination satisfied Ake's requirement of "provid[ing] the
defendant with a competent psychiatrist." 1 27 The Alabama Supreme Court affirmed
the appellate decision, and McWilliams sought a federal writ of habeas corpus. 1 2 8 On
habeas review, the Magistrate found that Dr. Goffs examination satisfied the
requirements ofAke because the requested testing was completed. 1 29 After the United
States District Court for the Northern District of Alabama adopted the Magistrate's
report and denied the defense's requested habeas relief, and the United States Court
of Appeals for the Eleventh Circuit affirmed the District Court's decision, the U.S.
Supreme Court granted McWilliams' petition for certiorari. 130

118. Id at 1794-95.
119. Id at 1795. Under Alabama law in 1986, being sentenced to death required a jury
recommendation with at least ten affirmative votes and a later determination by the judge.
120. Id
121. Id at 1795-96. The report concluded that McWilliams had neuropsychological deficiencies
compatible with the type of injuries previously reported by McWilliams but was also exaggerating his
neuropsychological problems. Id at 1796.
122. Id at 1796.
123. Id at 1796-97.
124. Id at 1797.
125. Id
126. Id
127. Id at 1797-98.
128. Id at 1798.
129. Id
130. Id
Winter 2022 MISUNDERSTANDING OFINSANITY 51

The issue in this case, as framed by the majority, is "whether the Alabama
Court of Criminal Appeals' determination that McWilliams got all the assistance to
which Ake entitled him was contrary to, or involved an unreasonable application of,
clearly established Federal law." 131 There was some dispute over whether the
majority incorrectly framed the issue in this case, with the dissenting judges
proposing the issue to be whether Ake "clearly established that an indigent defendant
whose mental health will be a significant factor at trial is entitled to the assistance of
a psychiatric expert who is a member of the defense team instead of a neutral expert
who is available to assist both the prosecution and the defense." 2
After the Court established that the conditions that trigger Ake were present
in McWilliams' case, it rejected Alabama's argument that Ake's requirements were
irrelevant because McWilliams did not expressly ask for additional expert
assistance.13 3 The Court reasoned that defense counsel's request for a continuance at
the sentencing hearing was a request for additional assistance from mental health
experts. 134 McWilliams argued thatAke clearly established that "a State must provide
an indigent defendant with a qualified mental health expert retained specifically for
the defense team, not a neutral expert available to both parties." 1 3 5 In response, the
Court declined to decide whether McWilliams' claim was correct, and instead
redirected back to language from Ake, stating that "a defendant must receive the
assistance of a mental health expert who is sufficiently available to the defense and
independent from the prosecution to effectively assist in evaluation, preparation, and
presentation of the defense." 136 Although the Court acknowledged that the majority
of jurisdictions meet the Ake standard by providing a "qualified expert retained
specifically for the defense team," the Court considered it unnecessary to decide
"whether the Constitution requires States to satisfy Ake's demands in this way."?137
The Court then turned to whether the assistance Alabama provided was
contrary to clearly established federal law. The Court reasoned that Dr. Goff s
examination of McWilliams, while meeting the examination portion of the Ake
requirement, failed to meet the requirement to "assist in evaluation, preparation, and
presentation of the defense." 138 Of note, the court order did not require this assistance
from Dr. Goff; it merely asked for testing to be completed. 139 The Court held that Dr.
Goff s assistance fell "dramatically short of what Ake requires" and thus, affirming
McWilliams' conviction and sentence was "contrary to, or involved an unreasonable
application of, clearly established Federal law." 140
In Justice Alito's dissent, he argued that Ake does not provide clear
guidance on the type of expert assistance required by the Constitution, and he
believed that the Court should affirm the lower court's judgment because the

131. Id (quoting 28 U.S.C. § 2254(d)(1) (1996)).

132. Id at 1801-02 (Alito, J., dissenting).
133. Id at 1799 (majority opinion).
134. Id
135. Id
136. Id (quoting Ake v. Oklahoma, 470 U.S. 83 (1985)).
137. Id at 1800.
138. Id (quoting Ake, 470 U.S. at 83).
139. Id at 1801.
140. Id (quoting 28 U.S.C. § 2254(d)(1) (1996)).
52 NEW MEXICO LAW REVIEW Vol. 52

standard of "clearly established federal law" is difficult to satisfy. 141 Justice Alito
reasoned that "when the lower courts have 'diverged widely' in assessing whether
our precedents dictate a legal rule, that is a sign that the rule is not clearly
established." 1 42 Additionally, Justice Alito stated that "the Alabama courts held that
Ake is satisfied by the appointment of a neutral expert, and it is impossible to say that
there could be no reasonable dispute that they were wrong," given how a plethora of
courts and commentators have differed. 143

B. Misunderstanding the Impact of Not Guilty by Reason of Insanity

Verdicts on Jurors

When a criminal defendant raises an insanity defense at trial, it is ultimately

a jury (in most instances) that determines whether the defense was successful. The
fate of a criminal defendant rests in jurors' understanding of the relevant insanity test
to be applied and the nature of the defendant's mental illness. When a defendant's
mental illness makes them a present danger to the safety of the community, it is
understandable that jurors would experience conflict over wanting to acknowledge a
defendant's mental illness but not wanting the defendant released into the
community to commit further offenses and potentially jeopardize public safety.
Relatedly, it is unclear how the U.S. Supreme Court expects jurors to understand the
nuances associated with the insanity defense given its own confusion of
psychological principles at all stages of the judicial process.
In Shannon v. United States,14 4 the U.S. Supreme Court held that juries are
generally not permitted to be instructed concerning the consequences of an insanity
acquittal.1 4 5 In reaching this conclusion, the Court failed to give credence to the
danger that juror deliberations may be distorted with incorrect assumptions about the
consequences that follow a verdict of not guilty by reason of insanity (NGRI).
Before turning to the facts of Shannon, it is important to discuss the Insanity
Defense Reform Act (IDRA) of 1984. Prior to the enactment of the IDRA, federal
courts generally did not recognize a verdict of NGRI. 146 When defendants
successfully asserted an insanity defense, the factfinder would return a verdict of not
guilty, and jurors were not given any information about what would happen to a
defendant acquitted by reason of insanity. 147 However, in the District of Columbia,
a defendant who successfully asserted an insanity defense in a criminal case would

141. Id at 1802 (Alito, J., dissenting).

142. Id at 1804 (quoting Carey v. Musladin, 549 U.S. 70, 76 (2006)).
143. Id at 1806 (quoting Woods v. Donald, 575 U.S. 312, 316 (2015)).
144. 512 U.S. 573, 573 (1994).
145. Id at 575-76. The Court included at the conclusion of its opinion that there may be limited
circumstances where a jury instruction is necessary, such as when a prosecutor or witness states that a
defendant would "go free" if found not guilty by reason of insanity. Id at 587.
146. Id at 575.
147. Id at 575-76. See also United States v. McCracken, 488 F.2d 406, 408-09 (5th Cir. 1974)
(holding that the trial court erred by instructing the jury that if the defendant was found not guilty by
reason of insanity, he would be would be "turned a loose"); Evalt v. United States, 359 F.2d 534, 538 (9th
Cir. 1966) ("It was plain error for the trial court to permit the United States Attorney to tell the jury that
if they acquitted Evalt he would walk out of the court a free man.").
Winter 2022 MISUNDERSTANDING OFINSANITY 53

be subject to the federal commitment process. 148 Additionally, the United States
Court of Appeals for the District of Columbia (D.C.) Circuit endorsed instructing the
jury about the consequences of an NGRI verdict.149 The D.C. Circuit Court reasoned
that the doctrine that "the jury has no concern with the consequences of a verdict"
did not apply to this situation because while jurors "generally were aware of the
meanings of verdicts of guilty and not guilty, they were unfamiliar with the meaning
of an NGRI verdict." 15 0
The IDRA was enacted after public scrutiny of the insanity defense
following the NGRI acquittal of John Hinckley for the attempted assassination of
President Reagan in 1981.151 The IDRA accomplished three main goals: (1) it made
insanity an affirmative defense proven by clear and convincing evidence in federal
courts, (2) it created a special verdict of NGRI, and (3) it created a comprehensive
commitment procedure by which a defendant found NGRI is held in custody pending
a court hearing.15 2 In enacting the IDRA, Congress may have consulted the already
existing District of Columbia Code that established an NGRI verdict.1 5 3
In 1990, Terry Shannon attempted suicide with a firearm in front of a police
officer.15 4 Shannon survived the suicide attempt and was indicted for unlawful
possession of a firearm by someone previously convicted of a felony offense.1 5 5 At
trial, Shannon asserted an insanity defense and requested that the jury be instructed
that he would be involuntarily committed to a psychiatric hospital if found NGR. 156
The United States District Court for the Northern District of Mississippi denied
Shannon's request and instead instructed the jury that "punishment should not enter
your consideration or discussion." 157 The jury found Shannon guilty, and Shannon
appealed his conviction. 158 The United States Court of Appeals for the Fifth Circuit
affirmed the conviction, reasoning that under pre-IDRA precedent, juries were not
instructed about the consequences of an insanity acquittal and there was no statutory
requirement for the jury instruction in the IDRA. 159 On appeal, the U.S. Supreme
Court examined "whether federal district courts are required to instruct juries with
regard to the consequences of an NGI verdict." 160
The Court first established that as a general matter juries are not to consider
the consequences of the verdicts they hand down.1 61 Information about the

148. Id at 576 (citing Lyles v. United States, 254 F.2d 725 (D.C. Cir. 1957) overruledby United States
v. Brawner, 471 F.2d 969 (D.C. Cir. 1972)).
149. Id at 576-77.
150. Id at 576-77 (quoting Lyles, 254 F.2d at 728).
151. See Lisa Callahan, Connie Mayer & Henry J. Steadman, Insanity Defense Reform in the United
States - Post-Hinckley, 11 MENTAL & PHYSICAL DISABILITY L. REP. 54, 55 (1987).
152. Shannon, 512 U.S. at 577. The court hearing must occur within 40 days of the verdict and at the
conclusion of the hearing, the court determines whether the defendant will be hospitalized or released.
153. Id at 581.
154. Id at 577.
155. Id
156. Id at 577-78.
157. Id at 578.
158. Id
159. Id
160. Id at 579. The verdict NGRI is sometimes referred to as NGI.
161. Id
54 NEW MEXICO LAW REVIEW Vol. 52

consequences is both "irrelevant to the jury's task" and can be a distraction "from
their factfinding responsibility" or create "a strong possibility of confusion." 162 The
Court then addressed Shannon's two arguments in turn: (1) jury instructions about
the consequences of an NGRI are "required under the IDRA whenever requested by
the defendant," and (2) these jury instructions are required as a matter of general
federal practice.1 63
The Court first looked at the text of the IDRA statute and found that jury
instructions were referred to once, and it was only to describe the possible verdicts a
jury can return. 164 Therefore, the Court stated that the text of the IDRA "gives no
support to Shannon's contention that an instruction informing the jury of the
consequences of an NGI verdict is required." 165 Shannon additionally argued that by
modeling the IDRA on the District of Columbia Code, a canon of statutory
interpretation dictated in Capital Traction Co. v. Hof, 166 implies adoption of the D.C.
Circuit's decision in Lyles v. United States, 167 in which the D.C. Circuit Court held
that the jury should be instructed (in some contexts) about the consequences of an
NGRI verdict. The Court rejected this argument, stating that this canon is "merely a
presumption of legislative intention to be invoked only under suitable conditions." 168
The Court reasoned that the conditions are not suitable in this case because Congress
departed from the District of Columbia Code in several ways.1 69 These differences
include the standard of proof both at the guilt phase and the commitment hearing
(clear and convincing vs. preponderance of the evidence), the timeline for the
commitment hearing (40 days vs. 50 days), the conditions for release once committed
(substantial risk of harm to others or property vs. future danger to self or others), and
the test for proving the affirmative defense of insanity (i.e., IDRA's definition is
more restrictive). 7 0
Shannon additionally argued that the Court need not rely on the canon of
statutory interpretation because Congress made clear in the IDRA's legislative
history that it intended to adopt the Lyles practice on informing juries about the
meaning of NGRI verdicts.171 The Court dismissed this argument, reasoning that the
"single passage of legislative history" to which Shannon refers is not "anchored in
the text of the statute" because it does not explain or interpret any provision of the
IDRA. 172
Shannon's second broad argument is that the jury instruction is "required
as a matter of general federal criminal practice." 1 7 3 Shannon reasoned, as a matter of
policy, that "the instruction is necessary because jurors are generally unfamiliar with

162. Id
163. Id at 579-80.
164. Id at 580.
165. Cap. Traction Co. v. Hof, 174 U.S. 1, 36 (1899).
166. Id
167. 254 F.2d 725, 728 (D.C. Cir. 1957).
168. Shannon, 512 U.S. at 581 (quoting Carolene Prods. Co. v. United States, 323 U.S. 18, 26 (1944)).
169. Id
170. Id at 581-82.
171. Id at 580, 583.
172. Id at 583.
173. Id at 584.
Winter 2022 MISUNDERSTANDING OFINSANITY 55

the consequences of an NGRI verdict, and may erroneously believe that a defendant
who is found NGRI will be immediately released into society." 17 4 These jurors may
then return a guilty verdict in an attempt to ensure that a defendant who poses a
danger to the community will not be released, even when a NGRI verdict is more
appropriate. 175
The Court fell back on the "almost invariable assumption of the law that
jurors follow their instructions" and relied on the fact that Shannon's jurors were
instructed to not consider punishment in their discussion.17 6 The Court also compared
jurors' effort to ignore the consequences of the verdict to another situation: when the
government fails to meet the burden of proof for a dangerous defendant."17
Additionally, the Court reasoned that an accurate jury instruction may not assuage
jurors' fears of the defendant's dangerousness because there is no guarantee the
defendant will be held past the 40-day period.17 8 Lastly, the Court expressed concern
that if jury instructions were provided for every aspect of the criminal sentencing
process with which jurors were unfamiliar, the exceptions would soon swallow the
rule. 179

In his dissent, Justice Stevens cited a passage from Lyles:

"[A] verdict of not guilty by reason of insanity has no commonly

understood meaning ... It means neither freedom nor punishment.
It means the accused will be confined in a hospital for the mentally
ill until the superintendent of such hospital certifies, and the court
is satisfied, that such person has recovered his sanity and will not
in the reasonable future be dangerous to himself or others. We
think the jury has a right to know the meaning of this possible
verdict as accurately as it knows by common knowledge the
meaning of the other two possible verdicts."1 80

Justice Stevens additionally found it concerning that the Court opted to alter
"an established rule that Congress accepted and that protects defendants
meaningfully against an obvious risk of injustice.... "181 In support of its
conclusion, the majority cited Rogers v. United States1 8 2 to show that "juries should
not consider the consequences of their verdict." 183 However, Rogers actually stands
for the opposite proposition and illustrates "how concerned juries are about the actual
consequences of their verdicts." 18 4 Additionally, research suggests that "significant
numbers of potential jurors believe that an insanity acquittee will be released at once"

174. 1o.
175. Id
176. Id at 585 (quoting Richardson v. Marsh, 481 U.S. 200, 206 (1987)).
177. Id
178. Id at 585-86.
179. Id
180. Id at 588-89 (Stevens, J., dissenting) (quoting Lyles, 254 F.2d at 728).
181. Id at 590.
182. 422 U.S. 35 (1975).
183. Shannon, 512 U.S. at 590 (citing Rogers, 422 U.S. at 40).
184. Id at 591 (citing Rogers, 422 U.S. 40-41).
56 NEW MEXICO LAW REVIEW Vol. 52

and, thus, Justice Stevens concluded, there is no genuine, non-illusory reason to keep
this information from jurors, and every reason to make them aware of it. 18 5

C. Conflating Insanity and Mens Rea at Guilt and Sentencing

As discussed previously, insanity in the criminal context is typically defined

as the inability of a defendant with a mental disease or defect to know the difference
between right and wrong or to conform their conduct to the requirements of the law
at the time of the offense, 18 6 while mens rea refers to the defendant's intent when
committing the criminal act and is often a required statutory element that must be
proven by the prosecution beyond a reasonable doubt. 187 Though rare, there are
situations in which a defendant's mental illness is so severe that it prevents the
defendant from forming the requisite intent to kill; however, in most cases, it is
possible for an individual to lack an understanding that what they are doing is wrong
but still want to kill.188
Knowing the difference between right and wrong and developing the
requisite intent to act are two different legal standards that the U.S. Supreme Court
has historically and erroneously conflated, most notably in the cases Clark v.
Arizona189 and Kahlerv. Kansas.190 Inaccurate application of these standards impacts
both the guilt and sentencing phases of a criminal trial. First, considerations related
to examining and proving each standard are essential to ensuring the constitutional
protections provided in the Due Process Clause. Second, because questions regarding
mens rea and insanity impact both the guilt phase and the sentencing phase of a trial,
the misunderstanding and misapplication of these legal constructs can lead to
potentially unconstitutional outcomes for criminal defendants.

1. Clark v. Arizona
Clark v. Arizona presents one notable instance of this confusion between
the related, yet distinct, psycho-legal concepts of mens rea and insanity. In 2000,
Officer Moritz pulled over then 17-year-old Eric Clark after responding to a noise

185. Id. at 592-93 (Stevens, J., dissenting) (quoting United States v. Blume, 967 F.2d 45, 52 (2d Cir.
1992) (Newman, J., concurring)).
186. This is the second prong of the M'Naghten test - the first notes that where an individual, due to
a psychological illness, is unaware of their actions, they are not culpable for the action itself. M'Naghten's
Case (1843) 8 Eng. Rep. 718, 722; 10 Ct. & F. 200, 210.
187. Mens rea, or intent, is often divided into four subcategories, wherein a person may act: (1)
purposefully - i.e., with the intention of causing the direct result of the action; (2) knowingly - i.e., with
practical certainty that the result will follow; (3) recklessly - i.e., with disregard to the substantial risk
resulting from the individual's actions; or (4) negligently - i.e., with gross deviation from the standard of
care taken by an individual who should have been aware of the risk their action would cause. See MODEL
PENAL CODE § 2.02 (AM. L. INST. 2020). See also Mens Rea, LEGAL INFORMATION INSTITUTE,
https://www.law.cornell.edu/wex/mensrea.
188. LEGAL INFORMATION INSTITUTE, supra note 187. A more recent example of this is in the case of
State v. Yates, where Andrea Yates drowned her five children due to her belief that "[i]f I didn't do it,
they would be tormented by Satan." Timothy Roche, Andrea Yates: More to the Story, TIME (Mar. 18,
2002), http://content.time.com/time/nation/article/0,8599,218445-1,00.html. Again, Yates had the
express intention of killing her children but did not appreciate the wrongfulness of her actions. 1o.
189. Clark v. Arizona, 548 U.S. 735 (2006).
190. Kahler v. Kansas, 140 S. Ct. 1021 (2020).
Winter 2022 MISUNDERSTANDING OFINSANITY 57

complaint about Clark's music.191 During the encounter, Clark fatally shot the officer
and fled on foot before being apprehended and charged with first-degree murder.192
To satisfy the elements of first-degree murder in Arizona, the State needed to prove
that Clark acted "intending or knowing that [his] conduct [would] cause death to a
law enforcement officer." 193 After an initial delay in the trial proceedings due to
questions regarding Clark's competence to stand trial, the case proceeded in a bench
trial. 194 At trial, Clark raised two separate claims related to his mental illness. He
claimed that due to the effects of paranoid schizophrenia: 95 (1) he "did not know the
criminal act was wrong," thus satisfying the requirements of an insanity defense;1 96
and, alternatively, (2) he did not satisfy the mens rea of the charged offense because
his delusions precluded him from developing the requisite specific intent to kill
Officer Moritz. 19 7
Clark presented expert witness testimony that he was exhibiting symptoms
of paranoid schizophrenia and that he thought "aliens," including law enforcement
officers, were trying to kill him. 198 A psychiatrist testified for the defense that Clark
was experiencing a schizophrenic episode when he killed Officer Moritz, concluding
"that Clark was incapable of luring the officer or understanding right from wrong
and that he was thus insane at the time of the killing."1 99 A psychiatrist for the State,
however, testified that "Clark's paranoid schizophrenia did not keep him from
appreciating the wrongfulness of his conduct," citing Clark's actions before and after
the shooting (e.g., playing loud music from his car to "lure the officer" to him and
later evading apprehension) as evidence for his assertion that Clark knew his actions
were wrong. 200
The trial court found Clark guilty of first-degree murder and sentenced him
to life in prison with the possibility of parole after twenty-five years, noting that,
despite his documented diagnosis of paranoid schizophrenia, "the mental illness did
not ... distort his perception of reality so severely that he did not know his actions

191. 548 U.S. at 743.

192. Id
193. ARIZ. REV. STAT. ANN. § 13-1105(A)(3) (2009). This version of the law is not substantively
different from that in effect in 2000.
194. 548 U.S. at 743. Clark was initially found incompetent to stand trial. After two years in a state
hospital, his competency was determined to be restored. Id.
195. Perhaps one of the most misunderstood psychiatric diagnoses, "paranoid schizophrenia," as
referenced in Clark likely refers to Schizophrenia with associated paranoid delusions. See AM.
PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 99-101 (5th ed.
2013) [hereinafter DSM-5].
196. 548 U.S. at 745. The affirmative defense of "insanity," in Arizona, partially quoted here, is
outlined in ARIZ. REV. STAT. ANN. § 13-502(A) (2009). Importantly, this is distinct from the traditional
test under M'Naghten, which defines insanity under a two-part test wherein the defendant must not, due
to their mental illness, (1) know the nature and quality of the act, or (2) what that they were doing was
wrong. M'Naghten's Case, 10 CL. & F. 200, 8 ENG. REP. 718, 722 (H.L. 1843).
197. Id In this case, the standard was "intentionally or knowingly" killing an officer. ARIZ. REV. STAT.
ANN. § 13-1105(A)(3) (2009).
198. Id at 745.
199. Id
200. Id
58 NEW MEXICO LAW REVIEW Vol. 52

were wrong." 201 Citing State v. Mott, 202 the court also held that Clark could not rely
on evidence relating to insanity to argue against the mens rea element of the crime. 203
After exhausting review at the state level, the U.S. Supreme Court granted certiorari
to determine whether due process considerations prohibited Arizona from (1)
narrowing the scope of its insanity test, and (2) excluding Clark's proffered evidence
related to his mental illness from the issue of establishing the required criminal
intent. 204
On the first issue raised in Clark, the Court found that the State had not
denied Clark any due process rights by "streamlining" their test for insanity. 205 On
the second issue, the Court also found in favor of the State, holding that evidence of
mental disease and capacity can be held inadmissible to rebut the prosecution's
evidence of the mens rea element of the crime. 2 06 Furthermore, the Court agreed with
the State that mental health professionals may be allowed to testify regarding their
observations of the defendant but not specific diagnoses, essentially rendering them
lay witnesses. 207
Perhaps more important than the outcome of Clark is the Court's reasoning
in the case. Here, again, the fundamentally distinct psycho-legal constructs of
insanity and mens rea are inappropriately conflated. The Court cites Mott in
concluding that due process allows for the exclusion of expert testimony regarding
defendant diagnosis in the determination of the mens rea element of the crime, noting
"only opinion testimony going to mental defect or disease, and its effect on the
cognitive or moral capacities on which sanity depends under the Arizona rule, is
restricted." 2 08 However, the ruling in Mott was not about insanity but instead about
the constitutionality of restricting testimony regarding the mens rea element of the

201. Id at 746 (internal quotations omitted) (quoting Joint Appendix, Vol. II at 334, Clark v. Arizona,
548 U.S. 735 (2006) (No. 05-5966)).
202. State v. Mott, 931 P.2d 1046 (Ariz. 1997). In Mott, the Arizona Supreme Court held that "Arizona
does not allow evidence of a defendant's mental disorder short of insanity ... to negate the mens rea
element of a crime" and thus "refused to allow psychiatric testimony to negate specific intent." Id. at 1051.
203. 548 U.S. at 745.
204. Id at 747. The Court ruled that Arizona's narrowed definition of insanity does not violate due
process. A full discussion of its reasoning on that issue is beyond the scope of this article. Id. at 747-56.
205. Id at 753. ("[D]ue process imposes no single canonical formulation of legal insanity."). In
coming to this conclusion, the Supreme Court characterizes the M'Naghten rule as having both a
"cognitive" (i.e., awareness of the nature and quality of the act), and "moral" (i.e., awareness of the
wrongfulness of the act) component. Id. at 747. However, even this proposition is somewhat misguided,
as both are cognitive questions based in the defendant's knowledge either knowing what they are doing
(what the Court calls cognitive capacity) and knowing what is wrong (what the Court calls moral
capacity).
206. See id. at 756-65.
207. See id. Under the Federal Rules of Evidence, any witness can testify to their observations or other
personal knowledge relevant to the case. FED. R. EVID. 602. Any opinion they offer must be rationally
based on said observation, helpful to the case, and not based in specialized knowledge. FED. R. EVID. 701.
Expert witnesses, however, are afforded more leeway in their testimony due to their qualifications and
training they are allowed to offer scientific opinions as long as they are grounded in the science in which
they are an expert and helpful to the case. FED. R. EVID. 702.
208. Id at 760 (emphasis added). It is important to note that Mott centers around a slightly different
issue: whether voluntary intoxication may be used to rebut mens rea.
Winter 2022 MISUNDERSTANDING OFINSANITY 59

crime, specifically separating the rule regarding testimony from circumstances in

which the insanity plea is invoked.2 09
When the Court addressed the constitutional issues that arise when
testimony regarding the mens rea element of the crime is restricted, it again confuses
insanity and mens rea. In its reasoning on this issue, the Court states, "The
presumption of sanity is equally universal in some variety or other being (at least) a
presumption that a defendant has the capacity to form the mens rea necessary for a
verdict of guilt and the consequent criminal responsibility." 210 However, this
statement is not an axiom-as mentioned previously, the presence of legal insanity
does not necessarily equate to the absence of mens rea because a defendant may not
be able to appreciate the wrongfulness of their actions but may still be capable of
forming the specific intent to commit the criminal act in question. This distinction is
perhaps best explained in the dissent, which states that "the mens rea element of
intent or knowledge may, at some level, comprise certain moral choices, but it
rests ... on a factual determination,""' thus highlighting a key distinction between
insanity and mens rea.

2. Kahler v. Kansas

There are many parallels between the Court's decisions in Clark and
Kahler; in fact, the Court itself heavily cites Clark in the Kahler opinion. However,
these two cases, the reasoning in the cases, and the psycho-legal issues raised in both
cases are distinct and should be carefully circumscribed by legal scholars and
practitioners. In Clark, detailed above, the issue centered on Arizona's definition of
legal insanity (i.e., not knowing that a criminal act is wrong),2 1 2 while in Kahler,
discussed below, the issue centers on Kansas' definition of legal insanity (i.e.,
lacking the required culpable mental state because of mental illness).21 In Kahler,
the U.S. Supreme Court was asked to decide whether the Due Process Clause
"compels the acquittal of any defendant who, because of mental illness, could not
tell right from wrong when committing his crime," 21 4 or, in plainer terms, whether
the lack of the "right vs. wrong" element, a component of both the M'Nagthen and
ALI insanity tests, to Kansas' definition of legal insanity violates due process. 215 In
short, the Court held that it did not.216

209. Compare State v. Mott, 931 P2.d 1046, 1051 (Ariz. 1997) ("Consequently, Arizona does not
allow evidence of a defendant's mental disorder short of insanity either as an affirmative defense or to
negate the mens rea element of a crime.") (emphasis added) and Mott, 931 P2.d at 1054 ("We have
previously 'rejected the theory of diminished responsibility which allows evidence of mental disease or
defect, not constituting insanity under M'Naghten, to be admitted for the purpose of negating criminal
intent.") (citing State v. Laffoon, 610 P.2d 1045, 1047 (Ariz. 1980)) (emphasis added) with Clark, 548
U.S. at 761 ("[A]ll members of the Court agree that Clark's general attack on the Mott rule covers its
application in confining consideration of capacity evidence to the insanity defense.") (demonstrating some
acknowledgement of the correct scope of Mott).
210. 548 U.S. at 790.
211. Id At 790 (Kennedy, J., dissenting).
212. ARIZ. REV. STAT. ANN. § 13-502(A) (2009).
213. KAN. STAT. ANN. § 21-5209 (2011).
214. 140 S. Ct. 1021, 1024-25 (2020).
215. Id at 1027.
216. Id
60 NEW MEXICO LAW REVIEW Vol. 52

Understanding the facts of the case helps to inform the following legal
analysis. Karen Kahler filed for divorce from her husband, James Kahler, in early
2009.217 After the dissolution of his marriage, Kahler's behavior became erratic and
he lost his job as a result. 218 Months later, in November of that same year, James
drove to the house where Karen and their children were staying. 219 There, he found
his nine-year-old son, who he allowed to escape before killing Karen, her
grandmother, and his two teenage daughters. 220 At trial, Kahler presented evidence
of severe major depressive disorder, including the testimony of a forensic
psychiatrist who stated that Kahler's "capacity to manage his own behavior had been
severely degraded so that he couldn't refrain from doing what he did." 2 21 Kahler was
convicted of capital murder and sentenced to death. 222
Under Kansas law, Kahler was permitted to present evidence of mental
illness to show that he was unable to "form the requisite intent" required for the
criminal charge, but he was not able to use that same evidence to assert that he did
not have an appreciation for the consequences or wrongfulness of his actions. 223
Thus, in the terms established by the Court, Kahler's mental illness could be used to
establish that he did not have the "cognitive capacity" to commit the crime but not
for the purpose of addressing his "moral capacity," at least at the guilt phase of his
trial. 2 24 During the sentencing phase under Kansas law, however, a defendant is
permitted to present evidence that, due to a mental illness, they were unable to
"appreciate [the] act's moral wrongness" or "criminality" or that the illness
22 5
prevented them from "conform[ing their] conduct to legal restraints."
The Court reasoned that Kansas' statutory scheme did not run afoul of due
process requirements because it allowed Kahler to present evidence that "lessened"
rather than "eliminated" moral culpability during the sentencing phase, stating that
"sentencing is the appropriate place to consider mitigation: The decisionmaker there
can make a nuanced evaluation of blame, rather than choose, as a trial jury must,
between all and nothing." 226 Thus, Kansas took Kahler's mental health into account
in some way, just not in the way that is most widely accepted. 2 27
The Court's decision and reasoning reflect a fundamental misunderstanding
of the impact that mental illness has on mens rea. Primarily, the Court's decision
ignores a fact that is central to the conceptualization of mental illness, and, by
extension, legal insanity-i.e., "mental illness typically does not deprive individuals
of the ability to form intent. Rather, it affects their motivations for forming such

217. Id at 1026.
218. State v. Kahler, 410 P.3d 105, 113 (Kan. 2018).
219. 140 S. Ct. at 1027.
220. Id
221. 410 P.3d at 114.
222. 140 S. Ct. at 1027.
223. Id at 1030-31.
224. Id at 1025.
225. Id at 1026, 1030-31, 1049. See also KAN. STAT. ANN. § 21-6625(a)(6) (outlining "[t]he capacity
of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's
conduct to the requirements of law was substantially impaired" as a mitigating circumstance).
226. 140 S. Ct. at 1031.
227. Meaning not following the M'Naghten rule, outlined above. Id at 1037.
Winter 2022 MISUNDERSTANDING OFINSANITY 61

intent." 228 Using the M'Naghten case as an example, M'Naghten had the intent to
kill the Prime Minister, but his motivations for wanting to kill the Prime Minister
were based in his delusions. 229 Regardless, under the Kansas law, as interpreted by
the U.S. Supreme Court, M'Naghten would have been convicted of murder. 230
Mental illness rarely renders one incapable of forming intent to act; instead, it
impacts cognitive processes in a manner that can manifest in changes in behavioral
patterns. 231 As such, limiting the definition of insanity to reflect only a complete
breakdown of the ability to form intent severely limits its applicability. It renders the
statute essentially useless in many cases where a person with severe mental illness is
alleged to have committed a crime, thereby essentially eliminating the insanity
defense in Kansas.
Furthermore, examining the Kansas statute, which states "[i]t shall be a
defense to a prosecution under any statute that the defendant, as a result of mental
disease or defect, lacked the culpable mental state required as an element of the crime
charged," 23 2 a second issue should become immediately clear. If one is to simply
ignore the middle clause "as a result of mental disease or defect," the statute states a
legal truism-i.e., it is a defense to any crime that the defendant lacked the mens rea
to commit the crime. 233 Thus, it offers no real insanity defense, but only the rebuttal
of an element of the crime itself (which is mens rea). Instead of acting as an
affirmative defense, a plea of insanity in Kansas does no more than offer a well-
formed attack of the prosecution's ability to prove a required element of the crime,
again limiting the applicability of the statute in a way that severely and negatively
impacts criminal defendants with severe mental illnesses.
Finally, in confining insanity to the realm of mens rea, the Court condones
a statutory scheme that offers no real relief during the guilt phase to defendants who
are severely mentally ill-the impact of their mental illness on culpability (beyond
the "all or nothing" approach of their ability to form intent) is confined to the
sentencing phase. 2 4 If "mental disease or defect is not otherwise a defense," 2 5 then
the vast majority of defendants who are mentally ill will be found guilty under
Kansas law. Though, as discussed previously, some relief is offered during the
sentencing phase; "tradition demands that an insane defendant should not be found
guilty in the first place." 23 6 Given that sentencing is a discretionary phase, the dissent
properly notes that the scheme not only exposes these defendants "to harsh criminal

228. Id at 1048 (Breyer, J., dissenting).

229. See M'Naghten's Case (1843) 8 Eng. Rep. 718, 719; 10 Cl. & F. 200, 201. See also supraSection
I.A.1 for further explanation.
230. See supra notes 35-38.
231. This understanding of mental illness is so essential that entire theories of psychology and
psychological intervention are predicated on the idea that thoughts (directly or indirectly) impact behavior.
232. KAN. STAT. ANN. § 21-5209; 140 S. Ct. at 1025.
233. This is specifically in regard to legal arguments regarding mental health; for example, some states
do not allow voluntary intoxication to negate mens rea. In Kansas, voluntary intoxication is not considered
a mental disease or defect as defined by the statute, even after Kahler. See Fredrick E. Vars, OfDeath and
Delusion: What Survives Kahler v. Kansas?, 169 U. PA. L. REV. ONLINE 90, 95 (2020).
234. 140 S. Ct. at 1026.
235. KAN. STAT. ANN. § 21-5209.
236. 140 S. Ct. at 1049 (Breyer, J., dissenting).
62 NEW MEXICO LAW REVIEW Vol. 52

sanctions up to and including death," but it also does "nothing to alleviate the stigma
and collateral consequences of a criminal conviction."2 3 7
Thus, the Kahler decision, despite its parallels to Clark, is uniquely
detrimental to the defendants with mental illness the underlying statutory scheme is
supposed to protect due to Kahler's misunderstanding of mental illness and
conflation of the distinct legal concepts of mens rea and insanity.2 3 8

D. Confusing Insanity and Incompetence to be Executed

Fordv. Wainwright239 is one of the foundational cases related to issues of

mental health, competence, and the death penalty, and it also represents an example
of the Court confusing critical mental health terminology. 240 The decision came from
a fractured U.S. Supreme Court, with Justice Marshall writing for the plurality.2 4 1
Despite the differences in opinion among the justices, it is clear throughout the
opinion that the Court erroneously conflates the fundamentally distinct constructs of
insanity and incompetence. Whereas insanity focuses on the defendant's mental state
at the time of the offense and is relevant to the legal determination of a defendant's
criminal responsibility, competence refers to present-focused abilities (e.g.,
competence to stand trial) and has no relevance to legal culpability. 242
Alvin Ford was convicted of murder in 1974 and sentenced to death that
same year. 243 At the time of his original trial, he demonstrated no mental health
symptoms and no abnormal thinking patterns. 2 44 However, eight years after he was
sentenced, Ford began to exhibit changes in his thought processes and behaviors; he
45
developed obsessions regarding the Ku Klux Klan and delusions of persecution 2

237. Id at 1050.
238. See Eric Roytman, Kahler v. Kansas: The End of the Insanity Defense? 15 DUKE J. CONST. L.

&
PUB. POL'Y SIDEBAR 43 (2020) (examining whether Kahlerhas essentially eliminated the insanity defense
in Kansas).
239. 477 U.S. 399 (1986).
240. See, e.g., McGautha v. California, 402 U.S. 183 (1971) (declaring jury imposition of death
penalty without guiding standards unconstitutional); Furman v. Georgia, 408 U.S. 238 (1972) (all current
death penalty statutory schemes unconstitutional in violation of the Eighth and Fourteenth Amendments);
Gregg v. Georgia, 428 U.S. 153 (1976) (death penalty does not, in itself, violate the Constitution);
Woodson v. North Carolina, 428 U.S. 280 (1976) (mandatory death penalty imposition unconstitutional);
Atkins v, Virginia, 536 U.S. 304 (2002) (death penalty for intellectually disabled persons
unconstitutional); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty for juvenile offenders
unconstitutional).
241. As a demonstration of how divided the Court was on the topic, Justice Marshall wrote the opinion
for the Court in Part I and II. He was joined in Parts III and IV by Justice Brennan, Justice Blackmun, and
Justice Stevens. Justice Powell wrote a concurrence, which was joined by Justice O'Connor, who also
wrote her own dissent, which was joined by Justice White. Finally, Justice Rehnquist wrote his own
dissent, which was joined by Chief Justice Burger. See Ford v. Wainwright, 477 U.S 399.
242. See SLOBOGIN, ET AL, supra note 21, at 1045; see generally THOMAS GRISSO, EVALUATING
COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (2d ed. 2003) (providing overview of
various competencies in criminal and civil law).
243. 477 U.S. at 401.
244. Id at 401-02.
245. Id at 402. Delusions such as these are called "persecutory delusions," and they are the most
common type of delusions an individual may develop. DSM-5, supra note 195, at 87. Persecutory
Winter 2022 MISUNDERSTANDING OFINSANITY 63

that because of his "Klan work," there was a conspiracy to encourage him to commit
suicide.2 4 6 His delusions worsened considerably between 1982 and 1983, eventually
culminating in a belief that he was Pope John Paul III, had solved a major crisis that
was occurring in the prison,2 4 7 fired the prison officials involved, and "appointed
nine new justices to the Florida Supreme Court." 248
In 1983, Dr. Jamal Amin, a psychiatrist retained by the defense, evaluated
Ford and diagnosed him with a mental illness akin to "Paranoid Schizophrenia With
Suicide Potential" and noted that the mental health disorder was "severe enough to
substantially affect Mr. Ford's present ability to assist in the defense of his life." 249
During an evaluation with a second psychiatrist retained by the defense, Dr. Harold
Kaufman, Ford told Kaufman that he could not be executed because it was "illegal"
after he had won "Fordv. State," which prevented the practice. 20 Dr. Kaufman
concluded that Ford "had no understanding [that] he was being executed, made no
connection between the homicide of which he had been convicted and the death
penalty, and indeed sincerely believed that he would not be executed because he
owned the prisons and could control the Governor through mind waves."21
Pursuant to Florida law, Ford's attorneys requested that Ford undergo a
competency evaluation in which he would be evaluated by three psychiatrists to
determine whether he had "the mental capacity to understand the nature of the death
penalty and the reasons why it was imposed upon him." 2 2 The panel of psychiatrists
appointed by the Florida Governor determined that, despite obviously suffering from
severe mental health symptoms, Ford was able to understand his death sentence and
what consequences that carried.25s In response, the Governor signed Ford's death
warrant, and the case was eventually appealed to the U.S. Supreme Court to
determine "the important issue of whether the Eighth Amendment prohibits the
execution of the insane." 2 54

delusions encompass delusions that the individual or someone they know is going to be "conspired
against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed
in the pursuit of long-term goals" by another entity (individual, organization, government, etc.). Id at 87,
90.
246. 477 U.S. at 402.
247. Id Notable "hostages" included 135 friends and family members, "senators, Senator Kennedy,
and many other leaders." Id.
248. Id
249. Id at 402-03.
250. Id at 403.
251. Id
252. Id at 403-04 (quoting FLA. STAT. § 922.07(2) (1985)).
253. 477 U.S. at 404. The adequacy of the psychiatrists' evaluations has also been the subject of
controversy. All three psychiatrists met with Ford together at a single thirty-minute meeting, after which
they each diagnosed him with a different mental health condition (psychosis with paranoia, psychosis,
and severe adaptational disorder). Id
254. Id at 404-05. In Ford, the Supreme Court conflated insanity with the concept of competence to
be executed. See generally Patricia A. Zapf, Elucidating the Contours of Competencyfor Execution: The
ImplicationsofFord andPanettifor the Assessment of CFE, 37 J. PSYCHIATRY & L. 269 (2009) (providing
overview of competence to be executed). Of note, the Florida statute in question also conflates the term
"insanity" with "competence." FLA. STAT. § 922.07. Although the statute states "When the Governor is
informed that a person under sentence of death may be insane, [the Governor] shall stay execution of the
64 NEW MEXICO LAW REVIEW Vol. 52

After reviewing the case, a divided U.S. Supreme Court held that the Eighth
Amendment "prohibits a State from carrying out a sentence of death upon a prisoner
who is insane."255 However, a closer look at the reasoning of the Court is warranted.
In coming to its conclusion, the Court reasoned, "[W]e may seriously question the
retributive value of executing a person who has no comprehension of why he has
been singled out and stripped of his fundamental right to life." 2 56 In reviewing the
procedure by which Ford was evaluated, the Court discussed the competency panel's
"agree[ment] on the ultimate issue of competency" as compared to the report of Dr.
Kaufman, which "concluded that the prisoner was not competent to suffer
execution." 257 The Court then concluded "that the State's procedures for determining
sanity [were] inadequate" 258 before reiterating the importance of sound procedure in
determining "the prisoner's ability to comprehend the nature of the penalty." 25 9 In
the final paragraph of the opinion, the Court stated that "[i]t is no less abhorrent today
than it has been for centuries to exact in penance the life of one whose mental illness
prevents him from comprehending the reasons for the penalty or its implications,"
and as such, the "petitioner is entitled to an evidentiary hearing in the District Court,
de novo, on the question of his competence to be executed." 26
Throughout the entire opinion in Ford, the terms and concepts of insanity
and competence are used interchangeably, which is fundamentally incorrect. This
theme is carried on through the concurrence and dissents. In Justice Powell's
concurrence, he writes, "At least in the context of competency determinationsprior
to execution, this standard is no different from the protection afforded by procedural
due process . . . Thus, the question in this case is whether Florida's procedures for
determiningpetitioner'ssanity comport with the requirements of due process." 261 In
Justice O'Connor's dissent, she writes that they are in "in full agreement with Justice
Rehnquist's conclusion that the Eighth Amendment does not create a substantive
right not to be executed while insane" but "cannot agree, however, that the federal
courts should have any role whatever in the substantive determination of a
defendant's competency to be executed." 2 62 Finally, in Justice Rehnquist's dissent,
he summarizes that "[i]t is Florida's scheme-which combines a prohibition against
execution of the insane with executive-branch procedures for evaluating claims of
insanity-that is more faithful to both traditional and modern practice." 2 63

sentence and appoint a commission of three psychiatrists to examine the convicted person," it goes on to
explain that "[t]he Governor shall notify the psychiatrists in writing that they are to examine the convicted
person to determine whether he [or she] understands the nature and effect of the death penalty and why it
is to be imposed upon him [or her]." § 922.07(1). This definition follows the standard for competency,
not insanity, and is used throughout the statute despite its association with the incorrect use of the legal
term "sanity."
255. 477 U.S. at 409-10 (emphasis added).
256. Id at 409.
257. Id at 413.
258. Id at 416 (emphasis added).
259. Id at 417.
260. Id at 417-18.
261. Id at 424 (Powell, J., concurring in part) (emphasis added).
262. Id at 427-28 (O'Connor, J., concurring in part and dissenting in part) (emphasis added).
263. Id at 433 (Rehnquist, J., dissenting).
Winter 2022 MISUNDERSTANDING OFINSANITY 65

The primary problem with Ford is that the legal issue was unrelated to
insanity, despite the Court's repeated use of that term, and instead is firmly focused
on whether the defendant was competent to be executed. Insanity and competence to
be executed are distinct and unrelated legal concepts that pertain to distinct legal
questions, with insanity focusing on the offender's mental state at the time of the
offense and competence focusing on the offender's functional abilities near the time
of execution. Even though Ford was found to have a severe mental illness and, thus,
may have met the legal criteria for insanity, he was adjudged to be competent to be
executed.
Knowing the nature and/or quality of an action, or whether the act is
wrong, 264 is fundamentally different than knowing why you are being punished and
knowing the consequences of that punishment. 2 65 A person, therefore, can be
declared legally sane in that they are aware of the quality and wrongfulness of their
actions but also legally incompetent in that they are unaware of why they are being
sentenced to death and the permanence of that sentence at the time of execution.
Thus, in some ways Ford exemplifies the scope of the problem regarding
how what may seem like a small misunderstanding or misapplication of psycho-legal
principles can have a resounding impact on constitutional issues throughout a
defendant's trial. However, the Court's struggle to define how mental health is
associated with competence to be executed did not end with Ford. Ford'sprogeny,
including Panetti v. Quarterman,2 66 continue to demonstrate this fundamental
misunderstanding.

III. COSTS, CONSEQUENCES, AND MOVING FORWARD

Why does it matter that the U.S. Supreme Court has presented a convoluted
picture of insanity from the selection, allegiance, and role of mental health experts
(in Ake and McWilliams) to the legal meaning of the term insanity (in Ford), with
the Court creating additional confusion surrounding insanity's definition and its
differentiation from mens rea (in Clark and Kahler), and what jurors hear about it
(in Shannon)? It suggests that the Court is fundamentally confused about this
doctrine. These misunderstandings have significant implications for the legal field,
mental health professionals that work in this area, and the general public who may
be called upon to offer decisions in the context of court cases. Noted commentators
have argued that "[t]he defense of insanity is probably the most controversial issue
in all of criminal law" and that "[t]housands of pages have been written debating the
value of a defense that provides an excuse for antisocial actions." 2 67 This controversy
and the extensive scholarship devoted to it are unlikely to decline unless more
understandable and comprehensible legal precedents originate from our country's
highest court. Without more effective guidance and direction-based on a clear and

264. See M'Naghten's Case (1843) 8 Eng. Rep. 718, 722; 10 CL. & F. 200, 210.
265. See Ford, 477 U.S. at 422-23.
266. 551 U.S. 930, 958-59 (2007) (broadly defining incompetence to be executed as defendants whose
"mental state is so distorted by a mental illness" they lack a rational understanding of the reasoning for
their execution while acknowledging "a concept like rational understanding is difficult to define").
267. MELTON ET AL., supra note 8, at 195; see generally, MICHAEL L. PERLIN, THE JURISPRUDENCE
OF THE INSANITY DEFENSE (1994).
66 NEW MEXICO LAW REVIEW Vol. 52

accurate understanding of the relevant legal concepts and constructs-insanity

jurisprudence has the potential to further devolve into something resembling other
notable "misadventures" of constitutional law, such as the First Amendment's
Establishment Clause and nativity scenes in public venues.2 68
The most troubling aspect of the Court's jurisprudence involving insanity
is best described as definitional. Allowing jurisdictions to construct (or not-in the
jurisdictions that do not currently have an insanity defense) their own explicit,
idiosyncratic formulations of insanity's components 269 and to implement their own
standards and burdens of proof for insanity is not necessarily problematic. Stated
differently, the fact that some jurisdictions use variants of the M'Naghten rule while
other have adopted aspects of the ALI standard with GBMI as an alternative verdict
is not the central issue with this jurisprudence. It is not uncommon for the Court to
allow different jurisdictions to use different formulations of doctrines based on the
legislative beliefs of that community. However, the Court's fundamental misuse of
the term insanity is more troubling, as the construct itself is purely a legal creation.2 70
In Ford, as noted previously, the Court treats competence to be executed as
synonymous with insanity271 even though the two constructs involve different time
periods (mental state at the time of the offense vs. mental state at time of execution)
and foundational abilities (knowledge of whether what they did was right vs. wrong
or uncontrollable behavior vs. understanding the reasons for being punished). This
lack of verbal specificity or verbal misstep will exacerbate confusion for legal actors,
mental health professionals, and a public that is already suspicious of the relationship
between mental illness and culpability.2 72
Yet, even more troubling and dangerous is the Court's clear
misunderstanding of the difference between mens rea and the insanity defenses in
Kahler. In treating the two legal constructs as identical, the Court has either expanded
insanity doctrine to include mens rea defenses (which is a conflation of distinct legal
defenses) or failed to recognize the fundamental differences between the two.
Following Kahler, Kansas seemingly has an insanity defense, which will be
surprising to most psycho-legal scholars who have listed Kansas among the states
that does not have one. 273 Given its recency, it is not clear how courts will implement
Kahler, but it is likely to cause a good deal of confusion among both legal
professionals and forensic mental health experts.

268. See Lynch v. Donnelly, 465 U.S. 668 (1984) (creating what is known as the "Three Reindeer
Rule" which bars municipalities from presenting religious symbols in nativity scenes unless non-secular
items such as reindeer are in close proximity). The difficulty and absurdity of this stream ofjurisprudence
has led one federal judge to quip, "No holiday season is complete, at least for the courts, without one or
more First Amendment challenges to public holiday displays." Skoros v. City of New York, 437 F.3d 1,
3 (2d Cir. 2006).
269. See supra pp. 9-12 and notes 55-57.
270. See generally, MELTON, ET AL., supra note 8.
271. It should be noted that psycho-legal scholarship is not immune from lack of clarity with regard
to the term "insanity". For example, the seminal article on civil commitment diagnosis, On Being Sane in
Insane Places, by a leading psychology and law scholar, David Rosenhan, confused civil commitment
and insanity. D. L. Rosenhan, On Being Sane in Insane Places, 179 SCIENCE 250 (1973).
272. See MELTON, ET AL., supra note 8, at 201.
273. Id at 204. ("[F]our states (Kansas, Idaho, Montana, and Utah) have abolished the defense
although expert testimony is still admissible for mens rea.").
Winter 2022 MISUNDERSTANDING OFINSANITY 67

For mental health professionals who specialize in legal assessments for the
courts (i.e., forensic psychologists and forensic psychiatrists), and are ethically
obligated to understand laws surrounding their areas of practice, 2 74 the Kahler
decision also presents an added layer of difficulty. Should a forensic mental health
professional now treat mens rea defenses the same as insanity defenses for
assessment purposes? Additionally, forensic psychologists have already been noted
to evidence lower reliability between examiners when performing insanity
evaluations compared to other legal evaluations for the courts, 275 and this revision of
insanity law will likely only make their reliability lower.
For a public that is already distrustful of the insanity defense, the additional
complexity of the revised legal insanity doctrine they will be asked to apply as jurors
will also likely lead to unreliability in decision-making and possible injustice. 276 It
may also further cement jurors' lack of understanding of the legal nuance
surrounding the insanity defense, causing them to ignore the law completely and
instead follow their "commonsense" notions ofjustice. 277 Jury research demonstrates
that this is already occurring with regard to different formulations of the insanity
defense (e.g., M'Naghten, Durham, ALI, no legal standard), with different insanity
standards rarely producing different outcomes in experimental studies. Finkel (1995)
aptly summarizes this research, noting:

Tests with markedly different criteria failed to produce

discriminably different verdicts, and failed to produce verdicts
discriminably different from those produced by a no-test
condition ... jurors do not ignore instructions but they construe
instructions, employing their constructs of "sane" and "insane" to
determine their verdict, despite the wording of the legal test given
to them. 2 78

These problems are likely to be confounded and exacerbated by jurors'

additional misunderstanding of what happens to defendants who are adjudicated
NGRI because courts have no obligation to correct these mistaken notions. 279 More
broadly, greater misunderstanding and confusion concerning insanity will surely not
lead to more substantial support for insanity laws, and it may lead the public to ask
for ill-conceived changes to existing laws. In a legal context already surrounded by
controversy and often subject to revision based on the public's knee-jerk reaction to

274. AM. PSYCH. ASS'N, SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGY supra note 106, at 9.
275. See W. Neil Gowensmith, Daniel C. Murrie & Marcus T. Boccaccini, How Reliable are Forensic
Evaluations of Legal Sanity?, 37 L. & HUM. BEHAV. 98, 100-05 (2013) (finding that three forensic
evaluators only reached unanimous agreement regarding legal sanity in 55 percent of cases for 165
criminal defendants). For comparison purposes, a similar research study involving competency to stand
trial found 70.9 percent unanimous agreement for three evaluators. W. Neil Gowensmith, Daniel C.
Murrie & Marcus T. Boccaccini, FieldReliability of Competence to Stand Trial Opinions:How Often Do
EvaluatorsAgree, and What Do Judges Decide When EvaluatorsDisagree?,36 L. & HUM. BEHAV. 130,
133-36 (2012).
276. See generally NORMAN J. FINKEL, NOT FAIR! THE TYPOLOGY OF COMMONSENSE UNFAIRNESS
(2001).
277. See, e.g., NORMAN J. FINKEL, COMMONSENSE JUSTICE: JURORS' NOTIONS OF THE LAW (1995).
278. Id at 282.
279. See discussion of the Shannon decision and accompanying text supra pp. 27-33.
68 NEW MEXICO LAW REVIEW Vol. 52

high-profile cases, the U.S. Supreme Court's lack of clarity will only further worsen
the situation.
Moving forward for the courts, several aspects of the insanity doctrine and
legal practice could be improved. First, the courts need to be exceptionally careful
concerning the use of the term "insanity" and not fall prey to using it in a colloquial
manner rather than in its strict legal sense. Insanity is a term of art that has an explicit
legal meaning that needs to be followed when it is used in the legal arena. This will
hopefully limit misunderstanding and mistaken notions that exist among legal actors
and which can trickle down to the general public through their widespread use.
Second, the Court needs to clarify whether mens rea defenses are part of
the insanity doctrine or are something distinctly different. The Kahler decision raises
the specter that something has fundamentally changed about insanity law, and the
Court needs to make clear if this is indeed the case. As the authors have hopefully
effectively argued in this article, this decision represents a fundamental misstep
concerning insanity and mens rea that needs to be corrected. Although mens rea and
insanity both involve mental state at the time of the offense, they call upon different
ideas of intentionality, the relationship of mental illness to cognitive and behavioral
actions, and legal justification for their use. These differences are fundamentally
important to our ideas of justice and need to be consistently recognized by the
decisions of the U.S. Supreme Court.
Third, the role of mental health professionals in legal proceedings involving
insanity needs to be both better understood and clarified by the courts. Mental health
professionals cannot ethically act as both a consultant and evaluator for the defense.
The ethical rules of conduct for psychologists clearly state that this behavior
represents multiple roles for the psychologist, and such behavior should not occur
unless there are substantial reasons that make it necessary. This is almost never the
case with regard to insanity evaluations, and the courts need to join the field of
psychology in prohibiting (or at least strongly discouraging) such conduct.
Fourth, the public and jurors are especially confused by the insanity defense
and its repercussions for the defendant. Allowing jurors to be instructed about what
results from a finding of NGRI would likely improve their understanding, without
increasing misinformation. It would also encourage and likely increase jurors' ability
to follow the law in their decision-making instead of relying on inaccurate
misunderstandings. As a result, clear jury instructions concerning the defendant's
often automatic psychiatric commitment following an NGRI adjudication is sound
and should be implemented.
The U.S. Supreme Court has severely muddled insanity doctrine from start
to finish through its decision-making over the last half-century. Through a series of
cases, the Court has created widespread confusion concerning: (1) the role and
allegiance of mental health professionals in insanity evaluations; (2) juror
understanding of the disposition of insanity acquittees following trial; (3) the
differences between mens rea and insanity defenses; and (4) the equivalency of
competence to be executed and insanity. Taken together, this jurisprudence
represents a fundamental misstep in guidance and direction in an already
controversial area of law. It has further led the legal field, mental health
professionals, and the public to have fundamental misunderstandings of this area of
law. It is essential that the courts begin the process of remediating these mistakes,
Winter 2022 MISUNDERSTANDING OFINSANITY 69

and construct, interpret, and apply insanity laws and procedures that both serve their
purpose and correct this rampant confusion.