Are Criminals Bad or Mad? — Premeditated Murder, Mental Illness, and Kahler V. Kansas

Harvard Journal of Law & Public Policy, Forthcoming

42 Pages Posted: 3 Aug 2019 Last revised: 21 Aug 2019

See all articles by Paul J. Larkin, Jr.

Paul J. Larkin, Jr.

The Heritage Foundation

GianCarlo Canaparo

Georgetown University Law Center

Date Written: August 20, 2019

Abstract

Neither the Due Process Clause nor the Cruel and Unusual Punishments Clause contains a directive ordering the federal or state governments to define the substantive criminal law in any particular fashion. The Due Process Clause prohibits the government from punishing someone until he has been convicted of a crime under the governing jurisdiction’s laws, but it does not instruct legislatures how to define those crimes and whether or how to recognize defenses to them. The Cruel and Unusual Punishments Clause has even less relevance to the content of the substantive criminal law. It only comes into play after an offender has been convicted of a crime and focuses entirely on the punishments that he can receive. The criminal law recognizes various defenses — self-defense, defense of others, duress, necessity, consent, and so forth — but the Framers did not incorporate any of them into the text of the Constitution. Indeed, with the exception of the Treason Clause, the Constitution leaves entirely to the political process the definition of the penal code because the judgments involved in drafting it involve precisely the type of moral decisions that the public and its elected representatives are fully competent to make. The most that could be required of the federal or state governments is to make a non-arbitrary choice. The judgment that Kansas made easily passes that test.

Keywords: Insanity, Insanity defense, diminished capacity defense, mental illness, mental disease or defect, competence to stand trial, competence to be executed, due process clause, cruel and unusual punishments clause

Suggested Citation

Larkin, Jr., Paul James and Canaparo, GianCarlo, Are Criminals Bad or Mad? — Premeditated Murder, Mental Illness, and Kahler V. Kansas (August 20, 2019). Harvard Journal of Law & Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3426522 or http://dx.doi.org/10.2139/ssrn.3426522

Paul James Larkin, Jr. (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States
202-608-6190 (Phone)

GianCarlo Canaparo

Georgetown University Law Center ( email )

Washington, DC 20057
United States

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