University of Florida Journal of Law & Public Policy


Mia C. Larson


This Note sheds light on varied insanity defense formulations which fail to adequately protect the constitutional rights of people deemed legally insane. An emerging trend has arisen whereby states adopt alternative approaches to legal insanity focused solely on the mental state of a criminal offender at the time the offender committed a crime. Rather than operating as an excusal from criminal liability, this alternative approach offers insanity as mitigating evidence to be used at the sentencing phase of trial. The result is that a person deemed not guilty in a state employing the affirmative defense could be deemed guilty in a state employing an alternative defense. Mere inquiry into an offender’s mental state takes no account of the offender’s cognitive capacity to appreciate the moral wrongfulness of the offending conduct. A person who lacks moral blameworthiness in the same way as a child or wild animal is not properly the subject of punishment under American criminal law. The Supreme Court has repeatedly addressed the issue of whether states are constitutionally required to employ an affirmative insanity defense. Most recently, in Kahler v. Kansas, the Court answered this question in the negative. This Note focuses on the inadequacies of alternative insanity defenses and advocates for treating the affirmative insanity defense as a constitutional baseline for due process of the legally insane.