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19 Seattle J. Soc. Just. 441 (2020-2021)
Sentencing Alternative to an Insanity Defense

handle is hein.journals/sjsj19 and id is 463 raw text is: 441 Sentencing Alternative to an Insanity Defense Michael Mullan* L INTRODUCTION In the 2020 case Kahler v. Kansas, the U.S. Supreme Court held that under the Due Process Clause of the Fourteenth Amendment, it is constitutional to abolish the affirmative insanity defense.1 The Court accepted the view that Kansas's provision for mental illness evidence to be introduced at the sentencing stage of a criminal trial, as well as to be adduced to deny mens rea at trial, was a constitutionally acceptable alternative to an affirmative insanity defense. This article focuses on the sentencing alternative. The alternative to the insanity defense of making mental illness solely relevant at the sentencing stage of a criminal trial is insufficient given the profound legal, historical, and moral underpinnings of the defense itself 2 First, the facts of the case and the issues that Kahler had with the Kansas provisions will be examined. In then analyzing the sentencing alternative, this article will highlight the reality that mental illness often works to aggravate, not mitigate, criminal punishment, and that separate sentencing discretion restraints, such as mandatory minimum sentences and future * S.J.D. Candidate, American University Washington College of Law; LL.M, Harvard Law School, 2017; LL.B., Trinity College, University of Dublin, 2014. Michael would like to thank his wife Mel and his family for bringing this publication to print. Thank you also to Dr. David Prendergast, Prof Michael A. Stein and Prof Michael L. Perlin for acting as Michael's mentors and for inspiring him. Also, thanks to Michael's medical team at Dana Farber, particularly Dr. Toni Choueiri, Dr. Douglas Brandoff Megan English and Ally Mulloy, for the great care that they showed to Michael over the years. Kahler v. Kansas, 140 S. Ct. 1021 (2020). 2 KAN. STAT. ANN. § 21-6815(c)(1) (2019); KAN. STAT. ANN. § 21-6625(a) (2011); MICHAEL L. PERLIN, THE JURISPRUDENCE OF THE INSANITY DEFENSE (1994); MICHAEL L. PERLIN & HEATHER ELLIS CUCOLO, MENTAL DISABILITY LAW: CIVIL AND CRIMINAL (3d ed. 2016).

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