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Death Is Different No Longer: Abolishing the Insanity Defense Is Cruel and Unusual under Graham v. Florida

56 Pages Posted: 28 Aug 2012 Last revised: 11 Jul 2013

Elizabeth Bennion

affiliation not provided to SSRN

Date Written: 2011


The U.S. Supreme Court's obliteration of the "death is different" doctrine in Graham v. Florida (2010) has opened the door for Eighth Amendment-based categorical protections from punishments beyond death. Among the first through that door should be this nation's severely mentally ill -- beginning with categorical protection from any criminal punishment for those who did not understand the nature of their actions, did not understand the wrongfulness of their actions, or could not control their actions at the time of their alleged crimes. Such constitutional protection of insanity defenses is logically required by Graham and would be an important first step in stemming the insanity of some American insanity laws.

Graham did not address the mentally ill, but much of its reasoning is remarkably applicable to that population. This Article argues that Justice Thomas is correct in his dissent in Graham that the case's reasoning logically leads to constitutional protection of other groups besides juveniles who have not been convicted of homicide. But this Article takes issue with his claim that there are “[n]o reliable limiting principle[s]” to establish boundaries regarding which groups should be protected from which punishments. Applying limiting principles derived from Graham, the absolute abolishment of insanity as an independent defense is unconstitutionally cruel and unusual.

This Article’s Part II examines the historical development of the Cruel and Unusual Punishment Clause jurisprudence, highlighting the battles within the Court that led to the Justices' positions in Graham as well as noting relevant references to mental illness. Part III presents an in-depth analysis of the principles and rules arising out of Graham and how the case has changed the playing field. Part IV applies the rules and principles derived from Graham to show why the case logically requires the conclusion that abolishment of insanity defenses is unconstitutionally cruel and unusual. It also briefly examines which states have abolished the defense and why the reasoning of their respective supreme court opinions cannot withstand a Graham analysis.

Keywords: Graham v. Florida, insanity defense, Eighth Amendment, sentencing and punishment, cruelty, cruel and unusual punishment, death penalty, proportionality, lessened culpability, mentally ill, mental illness, insane, criminal punishment

Suggested Citation

Bennion, Elizabeth, Death Is Different No Longer: Abolishing the Insanity Defense Is Cruel and Unusual under Graham v. Florida (2011). DePaul Law Review, Vol. 61, pp. 1-56, 2011. Available at SSRN:

Elizabeth Bennion (Contact Author)

affiliation not provided to SSRN

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