It’s Unconstitutional Not To Allow Insanity Defense, Professor Tells Supreme Court

Nearly 300 Law Professors Sign On to Richard Bonnie’s Amicus
Richard Bonnie

Richard Bonnie is the Harrison Foundation Professor of Medicine and Law and an expert in mental health and criminal law. Photo by Tom Daly

October 10, 2019

A defendant has the constitutional right to plead insanity. That’s the assertion of Professor Richard Bonnie ’69 of the University of Virginia School of Law in a recent amicus brief he co-authored in connection with a case currently before the U.S. Supreme Court.

Bonnie, responding to Kahler v. Kansas with University of Pennsylvania Law School professor Stephen J. Morse, argues that the state of Kansas, in denying defendants the option of an insanity plea, violates due process. Nearly 300 co-signers who are experts in either criminal law or mental health law joined the brief, which was filed in June.

“The affirmative defense of legal insanity has such a strong historical, legal, moral, and practical pedigree and is so widely accepted that providing such a defense is a matter of fundamental fairness in a just society,” the authors write.

Bonnie and Morse followed up on their advocacy with a Sunday op-ed in The Wall Street Journal. They have made the argument in favor of the insanity defense before, including in a 2013 paper for the Journal of the American Academy of Psychiatry and the Law.

Bonnie played a key role in insanity defense reform in the wake of the trial of John Hinckley Jr., the man who attempted to assassinate President Ronald Reagan in 1981. Bonnie was a principal architect of common positions by the American Bar Association and the American Psychiatric Association in favor of narrowing the insanity defense while preserving it. Congress embraced that position in the Insanity Defense Reform Act of 1984. He is author of “The Trial of John W. Hinckley, Jr.: A Case Study in the Insanity Defense,” with UVA Law faculty members John C. Jeffries Jr. ’73 and Peter Low ’63.

For the amicus’ co-authors, mental state is inextricable from the question of culpability.

“There is no dispute that severe mental disorder can strongly affect an individual’s cognitive and self-regulation capacities and that in extreme cases, the defects are sufficiently grave to negate any attribution of fault because such offenders do not know, understand or appreciate the wrongfulness of their actions,” they write in their brief. “Criminal blame and punishment are fundamentally unfair because such offenders are not responsible for their criminal conduct.”

In Kahler v. Kansas, petitioner James Kahler, who shot and killed four members of his family in 2009, claims severe depression led to his actions and argues that he was unfairly deprived of his right to an insanity defense. Kansas abolished the defense in 1995.

Other UVA Law professors among the 290 signers of the amicus brief were Darryl Brown ’90, Anne Coughlin and John T. Monahan. The bipartisan group represents a mix of professional backgrounds that include both defense and prosecutorial experience.

At UVA, Bonnie is the Harrison Foundation Professor of Medicine and Law; professor of Psychiatry and Neurobehavioral Sciences; director of the Institute of Law, Psychiatry and Public Policy; and professor of Public Policy at the Frank Batten School of Leadership and Public Policy.

He is currently assisting a commission of the Virginia General Assembly charged with reforming mental health services.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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