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Capital punishment and the insanity defense


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The US Supreme Court is back to hearing cases. 

 On its very first day of the new session, it heard a dandy. KAHLER v. KANSAS asks whether, especially in the context of capital punishment, a state can constitutionally take the insanity defense off the table. 
The 14th amendment to the US Constitution provides that “no state shall … deprive any person of life, liberty, or property, without due process of law.”
The Supreme Court has long held that the due process requirement is most stringent for the first of those threats, a proposed deprivation of life: that is, there is a “super due process” required for application of the death penalty.
In a matter that the Court will hear Monday, lawyers for a death row inmate will argue that a Kansas law abolishing the insanity defense in a capital matter deprived their client of this necessary super due process of law, and they will ask that his sentence be overturned.
You might say, "ah, surely with the two new Trump appointed Justices the death-penalty hawks will win the day, will they not?" 
I would answer "not necessarily." The convention by which one counts heads on the court as "liberal" or "conservatives" and predicts the outcome of decisions based on how those ideological numbers comes out is very unreliable. Further, neither Gorsuch nor Kavanaugh owes the Prez who nominated him a darned thing, as the history of SCOTUS confirms. 
But let's not go back deep into history. Just look to last year's term, which featured TIMBS v. INDIANA and the Flowers case.
In TIMBS, SCOTUS had to decided whether the excessive fines clause of the bill of rights limits the states. It had never been incorporated into the 14th. But now ... it has been. The decision to do so was unanimous. Gorsuch wrote a concurring opinion saying "there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines." 
In FLOWERS v. MISSISSIPPI, also last term, SCOTUS found in a capital punishment context that there was clear error at the trial court level in that the judge had allowed for the peremptory exclusion of black jurors by the prosecution. A Trump appointee, Kavanaugh, wrote the opinion for the court on that one. 

 In the oral argument on KAHLER Monday, it was a George W. Bush appointee, Justice Roberts, who observed: "if it's historically established that you cannot punish people who don't know the difference between right and wrong, that certainly sounds like something that is rooted in the conscience and would be ranked as fundamental." 
Let's hope for another defeat here for the ideological-tagging theory of jurisprudence. 



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