Amidst all the interest in Hamdan, criminal law types out there won’t want to miss today’s opinions in Clark v. Arizona, on the constitutional requirements of the insanity defense. The vote was 6-3, with Justice Souter writing the majority opinion joined by Breyer, Thomas, Scalia, Roberts and Alito. From the majority opinion:
[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice. Indeed, the legitimacy of such choice is the more obvious when one considers the interplay of legal concepts of mental illness or deficiency required for an insanity defense, with the medical concepts of mental abnormality that influence the expert opinion testimony by psychologists and psychiatrists commonly introduced to support or contest insanity claims. For medical definitions devised to justify treatment, like legal ones devised to excuse from conventional criminal responsibility, are subject to flux and disagreement. There being such fodder for reasonable debate about what the cognate legal and medical tests should be, due process imposes no single canonical formulation of legal insanity.
Justice Kennedy dissented, joined by Stevens and Ginsburg.
While I have not reviewed the decision and am mostly working off the description of a friend who follows mental-health law more closely than I do, as I understand things the evidence in question was better characterized as an attempt to rebut the prosecution’s prima facie case by showing the defendant was incapable of holding the right mental state than to raise an affirmative defense. If you frame it as “may the rules of evidence exclude, by statute, evidence that tends to rebut the prosecution’s prima facie case” rather than “does the Constitution require an insanity defense” things look rather different.
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Elliot: a major point.
The Constitution, I would think, should never be read to bar a defendant’s attempt to rebut the prima facie case.
Prosecutor: D had the necessary mens rea.
Defendant: Did not either.
Prosecutor: Did so!
Etc.
If the defendant can’t even use evidence, expert or otherwise, to try to argue “Did not either,” then what’s the point of having a right to a trial?
Prof. Stephen J. Morse of Penn Law heavily emphasizes the difference between an excuse/justification defense, versus the substantive defense of “lack of necessary mental state.” I would be utterly unsurprised if he was involved in the case.
It’s too bad the majority chose an inappropriate filter to examine the case through – a typical mistake in SCOTUS criminal law decisions.
Elliot, that is actually part of Kennedy’s point in his dissent. He argues that the majority changed the question avoids the question that was actually posed. Souter seems to indicate that it is just semantics but given that with the law, words are everything I’m not sure that argument really holds water (for full disclosure, Souter never actually says that, I’m just attempting to read between the lines which can be dangerous).
Also, has anyone ever heard of a justice joining the majority opinion in all but 2 subparts and disagree with the outcome as Justice Breyer did in this case? I know it’s common for justices to join parts of the opinion and part of the disposition but I’ve never seen a justice join the majority but dissent from the ultimate holding. Any thoughts?
Mike G: I don’t know of another case of a justice joining a majority, but dissenting from judgement, but I find notable that Justices Marshall and Blackmun, if I recall correctly, joined Justice O’connor’s concurrence in the Oregon Peyote case, that would have kept the old freedom of religion balancing test, but, unlike O’connor, didn’t concur in the judgement, because they disagreed with her view that the lack of a religious exception to the law would have survived even the old standard.