Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea

23 Pages Posted: 6 Sep 2019

See all articles by Michael Louis Corrado

Michael Louis Corrado

University of North Carolina School of Law

Date Written: August 25, 2019


In October of this year, the United States Supreme Court will hear the case of Kahler v. Kansas, and it will have the opportunity to answer a question that it has been avoiding for some time: Does the United States Constitution — in particular, do the Due Process and the Cruel and Unusual Punishment clauses — require each of the jurisdictions of the United States to provide an affirmative defense of insanity for those accused of a crime? The petitioner, Kahler, argues that the right to an affirmative defense is "deeply rooted" in our history and tradition, and so is embedded in our Constitution. To undermine that argument, the State of Kansas attempts to show that eliminating the affirmative defense and limiting the admissibility of evidence of mental illness to its role in rebutting mens rea is consistent with history and tradition. This paper argues that the State misreads the history of mens rea, and that that misreading leads to an equivocation in the State's argument. (This is a pre-review draft of a paper written for the National Law School of India at Bangalore Review.)

Suggested Citation

Corrado, Michael Louis, Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea (August 25, 2019). UNC Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3442475 or http://dx.doi.org/10.2139/ssrn.3442475

Michael Louis Corrado (Contact Author)

University of North Carolina School of Law ( email )

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