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November 26, 2012

Over dissent of three Justices, SCOTUS refuses to review Idaho's restriction of insanity defense

As reported here at SCOTUSblog, the Supreme Court returned to work today with an orders list that included no new certiorari grants and a few notable denials of cert.  One such denial generated a multi-Justice dissent: "Among the Court’s more significant orders denying review, it refused to hear a claim that the Constitution requires states to allow an accused an opportunity to use insanity as a defense to a criminal charge.   The case of Delling v. Idaho (11-1515) was denied over the dissents of three Justices — Stephen G. Breyer, joined by Ruth Bader Ginsburg and Sonia Sotomayor."  Here are a few excerpts from Justice Breyer's dissent (with some quotes and cites eliminated), which in part explain why I am not troubled by this SCOTUS cert dodge:

Idaho provides that “[m]ental condition shall not be a defense to any charge of criminal conduct.” Idaho Code §18–207(1) (Lexis 2004). Another provision of the same statute provides, however, that the above restriction is not “intended to prevent the admission of expert evidence on the issue of any state of mind which is an element of the offense.” §18–207(3). And the Idaho courts have made clear that prosecutors are still required to prove beyond a reasonable doubt that a defendant had the mental capacity to form the necessary intent. Thus, in Idaho, insanity remains relevant to criminal liability, but only in respect to intent. Insanity continues to have relevance at sentencing as well. A court must “receiv[e]” evidence of mental condition at sentencing and, if mental condition proves to be a “significant factor,” must consider a string of issues deemed relevant to punishment, including, notably, “[t]he capacity of the defendant to appreciate the wrongfulness of his conduct.”  Idaho Code §19–2523 (Lexis 2004).  In addition, if the court imposes a prison sentence on a person who “suffers from any mental condition requiring treatment,” Idaho law appears to mandate that “the defendant shall receive treatment” in an appropriate facility.  See §18–207(2).

Still, the step that Idaho has taken is significant.  As that State’s courts recognize, it may allow the conviction of persons who may be insane by some former insanity test or medical standard, but who nevertheless have the ability to form intent and to control their actions. That is, the difference between the traditional insanity defense and Idaho’s standard is that the latter permits the conviction of an individual who knew what he was doing, but had no capacity to understand that it was wrong....

I would grant the petition for certiorari to consider whether Idaho’s modification of the insanity defense is consistent with the Fourteenth Amendment’s Due Process Clause.

In the lingo of many criminal law theorists, the insanity defense is classic "excuse" defense to criminal responsibility, not a "justification" defense.  Though I think the Constitution might well limit the authority of states to eliminate entirely certain justification defenses (like, for example, self defense), I am not quite sure why a state should not be allowed to get rid of certain excuse defenses as long as it preserves some role for excuse considerations at sentencing.  Indeed, ever the sentencing geek, I have long believed it might be wise for many theoretical and practical reasons — as well as constitutionally permissible — to eliminate all pure excuse defenses in order to turn them into (required) sentencing factors.

Criminal law theorists and/or long-time readers might rightly conclude that my general disaffinity for excuse defenses is just one part of my general disaffinity for retributivist theories of punishment (as well as my view that guilt determinations should be principally concerned with offense conduct and that sentencing is the place for broader consideration of offender characteristics).  I fully understand, though do not find compelling, a certain retributivist viewpoint that a just system of criminal punishment must preserve some traditional form of the insanity defense to criminal liability.  Consequently, I am inclined to view this notable denial of cert as an indication that there are not currently four Justices drawn to the notion that the Constitution's Due Process Clause includes certain retributivist criminal justice fundamentals.

An interesting follow-up question to this cert denial for even utilitarian-minded folks is whether and when the diminution of mental condition considerations at sentencing might present Eighth Amendment issues.  Especially in the wake of the Supreme Court's recent work in Graham and Miller, it is intriguing to consider a potential Eighth Amendment challenge to any mandatory LWOP sentence given to a clearly insane person in a state like Idaho that has precluded raising an insanity defense at the guilt stage of proceedings.  Ever the fan of a robust Eighth Amendment jurisprudence, I might be more drawn to this kind of constitutional claim than to one based in the Due Process Clause.

November 26, 2012 at 12:15 PM | Permalink


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The intent component of each element of a crime is plagiarized from the Catechism analysis of mortal sin. It is therefore 1) a form of supernatural mind reading, and impossible in nature; 2) copied from the Catechism, and in violation of the Establishment Clause; 3) not correlated in any way with public safety. Say I am 80, and plow onto a sidewalk, killing many preschool children shorter than the height of my car hood. I had no intent. Yet, I am one of the most dangerous mass murderers around if released to kill again. Ahunter shooting another thinking it a deer may be far more dangerous than one shooting another because the other's wife paid him $10,000.

Retribution is itself from the Bible, and an immature aim of the Iraqi tribal culture of the authors of the Bible. It is a dumb idea leading to cycles of centuries long vendettas.

The sole aim of the criminal law is public safety, and the sole mature, effective tool is incapacitation. Paranoid schizophrenics kill 2000 of the 17,000 murder victims a year. So the lawyer is totally responsible for Arizona, Colorado, the Unabomber, and Virginia Tech. All those people neede treatment but were tprotected by the laywer from forced treatment. Insanity should be an aggravating factor increasing dangerousness.

Posted by: Supremacy Claus | Nov 26, 2012 7:16:37 PM

Breyer's slipping. He never was very good, but his statement on the denial of cert. is just terrible. This quote is simply baffling:

"In view of these submissions, I would grant the petition for certiorari to consider whether Idaho’s modification of the insanity defense is consistent with the Fourteenth Amendment’s Due Process Clause."

The way Breyer puts it, there is some Platonic ideal of an insanity defense, upon which there are Due Process Clause limitations. But hey, after a ruling that a person who gets a fair trial can complain about the violation of judge-made rule about the right to paid-for counsel, why shouldn't these libs on the Court push hard. You'd wish they'd be a little less obvious about the penchant for bending the criminal justice system to their wills. Looks bad. Justice Y dwarf Breyer strikes again.

Posted by: federalist | Nov 26, 2012 9:27:13 PM


Do you have any citations or proof whatsoever for your claim that "paranoid schizophrenics kill 2000 of the 17,000 murder victims a year."

Posted by: Steve Erickson | Nov 26, 2012 10:46:06 PM

Here is a nice place to start. The fraction is between 10 and 15% of homicides around the world.


Posted by: Supremacy Claus | Nov 26, 2012 11:40:45 PM

Assume a high end of 1% of males are schizophrenic. It is more likely to be 0.5%. That figure makes the schizophrenic 10 to 20 times more likely to kill than other males. They are more murderous than people with antisocial personality disorder, the highly validated diagnosis most associated with criminality.

Posted by: Supremacy Claus | Nov 26, 2012 11:44:11 PM


That study, nor others that are easily found on the internet, support your assertion. I agree that the risk of violence is higher among those with severe mental illness, but the data doesn't support the notion that nearly 9% of homicides are committed by those with paranoid schizophrenia.

Posted by: Steve Erickson | Nov 27, 2012 10:37:28 AM


Your 8th Amendment idea is interesting, but isn't that a retributive claim? So do you find retributive theory only helpful in sentencing and not in guilt? If so, isn't that quite a disjointed theory of criminal law?

Posted by: Steve Erickson | Nov 27, 2012 10:41:03 AM

Hey Steve: I tend to be more of a textualist and structural legal process guy rather than a punishment theory guy when it comes to interpretations of the Eighth Amendment. Ergo, my stated Eighth Amendment concerns stem from a view that it would be both cruel and unusual --- as well as inconsistent with balance of power structural consideration --- for a legislature to prohibit a defendant from claiming, and to prohibit a sentencing authority from giving effect to, compelling mitigating evidence concerning a defendant's limited mental capacities.

As for retributive theory, I do not generally find it especially compelling in the sentencing arena either. Put more precisely, most retributivist claims in criminal law have always seemed to me more based on faith and feelings than on verifiable evidence and data. I can understand and appreciate how other can be moved and base systems of law on faith and feelings, but I personally am more drawn to verifiable evidence and data in the criminal law realm.

Posted by: Doug B. | Nov 27, 2012 11:10:46 AM

But how does the structure of the 8th Amendment get us any closer to defining what is cruel and unusual punishment? And isn't any argument regarding the structure of power inherently a normative judgment anyway? That judgment can be informed by many factors, including empirical ones, but at heart there is a fairness argument that asks the essential retributive question: what does the defendant deserve?

Let's consider SC's assertion and the issue of mental illness and crime more generally. We now have considerable empirical data demonstrating a link between severe mental illness and crime. What does a CJ system devoid of the retributive lens do with this information? I'm not sure mitigation is the word of the hour. But even so, it's retributive concerns that grant mitigation even among these sad cases.

Posted by: Steve Erickson | Nov 27, 2012 12:42:01 PM

Interestingly, in the case of the Tuscan shooter (who shot a Congresswoman and killed a Federal District Judge)there is a profound contrast between the Federal insanity defense (as modified by Congress after John Hinckley was found not guilty by reason of insanity after shooting President Reagan in 1981)and Arizona state law which is like that in Idaho, in that no insanity defense is available. In his Federal case, the Tuscan shooter pleaded guilty and received 7 life sentences, in exchange for prosecutors taking the death penalty off the table. In doing so, he waived a potentially potent insanity defense to his crimes and saved the Government the expense of trial. Instead of an insanity defense, Arizona state law provides that a jury may find a defendant "guilty but insane", which only affects where he will serve his sentence, a hospital for the criminally insane, as opposed to a prison. In light of the 7 life sentences imposed in the Federal case, it remains to be seen whether the Arizona state case (12 counts murder and attempted murder) will ever proceed to trial or plea.

Posted by: Jim Gormley | Nov 27, 2012 12:53:23 PM

Would you draw any distinction between abolishing the defense of insanity and defense of minority (absolving of criminal liability children below certain age level)?

Posted by: Gene | Nov 27, 2012 2:56:52 PM

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