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8 Kan. J.L. & Pub. Pol'y 253 (1998-1999)
Insanity Denied: Abolition of the Insanity Defense in Kansas

handle is hein.journals/kjpp8 and id is 387 raw text is: Insanity Denied: Abolition of the Insanity Defense in Kansas Marc Rosen I. Introduction The legal test for insanity, designed to identify the scope of the insanity defense, has changed over the years.' For thousands of years, society, however, has recognized a fun- damental belief that it is unfair to hold insane persons responsible for their criminal behavior regardless of the crime.2 Despite its extensive history and firm entrenchment in common law, the insanity defense engenders a national mood of skepticism. In order to soothe public con- cerns and gain popularity, the Kansas Legislature, in 1995, enacted Kan. Stat. Ann. § 22-3220 which states: It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not other- wise a defense. The provisions of this section shall be in force and take effect on and after January 1, 1996. Thus, the insanity defense in Kansas, which has been in existence since 1884,3 is no longer a viable affirmative defense. Defendants can no longer be exonerated, as they could under the traditional defense, for not knowing the nature and quality of their actions or for not knowing right from wrong with respect to their actions. Even if the defendant was insane, but had the requisite mental state required for the crime he or she is charged with, he or she cannot plead insanity as a defense. This article does not join the debate with regard to how insanity should be substantively defined by the courts. Instead, the article focus- es exclusively on the issue of abolishment of the insanity defense, particularly in the state of Kansas. First, abolition of the insanity defense in Kansas was unwarranted. The Kansas Legislature abolished the defense because the public wanted it abolished. It made good polit- ical sense. After all, as elected representatives of the state, the Kansas Legislators adequately represented their constituents by giving them what they wanted. Yet the public was, and still is, remarkably uninformed about the actual use of the insanity defense. The public's call for abolition was based on several misperceptions that were either empirically untrue or unjusti- fied. Instead of educating the public on the actual use of the insanity defense, the Kansas Legislature catered to the public's mispercep- tions by abolishing the defense. Second, Kansas's new mens rea approach is too nar- row. Proclaimed as a balance between the rights of mentally ill defendants and the pub- lic's outcry for reform, the new mens rea approach is unfair when compared to the for- mer insanity defense. This is evidenced by the fact that some of the most debilitating mental Marc Rosen is a third-year law student at the University of Kansas School of Law in Lawrence, Kansas.

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