“A Most Damnable Fraud?” Public (Mis)conceptions and the Insanity Defense

James Kahler murdered his two daughters, ex-wife, and grandmother in Kansas on Thanksgiving in 2009. Kahler’s defense team wanted to use an insanity plea, but Kansas is one of only four states that does not allow for this defense. Quickly, the focus of his trial shifted from the question of his mental health to a constitutional challenge concerning his right to use a “not guilty by reason of insanity” (NGRI) plea. Kahler’s attorneys argued that the inability to use the insanity defense violated Khaler’s 8th and 14th Amendment rights to protection from cruel and unusual punishment and due process. The United States Supreme Court agreed to hear Khaler’s case just this past March. The court will now effectively decide if there is a constitutional right to the insanity plea.

Since the 1980s, several states have reformed and repealed insanity defenses. Thirteen states allow “guilty but mentally ill” (GBMI) pleas for criminal charges.¹ Kansas, Idaho, Montana, and Utah do not allow for an insanity plea to stand in as a defense to criminal charges. The repeal of the insanity plea in these states dates to a flurry of insanity defense reforms in the 1980s inspired by John Hinckley Jr.’s attempted assassination of Ronald Reagan in 1981. Public backlash to the insanity defense was swift when the court found Hinckley, who claimed he wanted to impress actress Jodie Foster, NGRI. Timed with this public condemnation was the reform of the insanity defense in several states’ legislatures in the years immediately following Hinckley’s trial. Soon after, a study on public opinion of Hinckley’s trial showed the extent to which medical professionals influenced the public’s reactions to the trial. The public’s increased trust in psychiatrists correlated with opinions that Hinckley’s sentence of institutionalization was fair. However, only 12.5% of participants were “very confident” in psychiatric testimony given in court; 87.1% still saw the insanity defense as a loophole to exploit.²

Underlying the public’s negative response to Hinckley’s trial was the persistence of misconceptions surrounding the use of the insanity plea: that it is a means to escape punishment, that it is overused, and ultimately, that it is feigned.³ Such perceptions of the plea are no contemporary construction. Indeed, these attitudes have a history that stretches back to the early nineteenth century, when doctors began to assert their knowledge of the mind, and are an artifact of the public’s wariness of medical expertise. Shifting perceptions of the plea, then, can be mined for what they reveal about the public’s persistent power to shape legal practice.

By the early 1800s, American doctors increasingly viewed disease, instead of deviance, as a primary cause of abnormal behavior.⁴ At the same time, questions concerning the perceptions of the mentally ill within the judicial system presented themselves in popular print sources. “It is a matter of importance as well as of singular interest to investigate the sources from whence the popular feeling and intelligence concerning madness have been derived” noted one doctor in the Boston Medical Intelligencer in 1824.⁵ Of course, these perceptions were a foremost concern to doctors when any defendant would face a jury of their male peers. Juries now incorporated their perceptions of experts into their judgments of both insane men and women in the courts.

The increased specialization of doctors in the field of psychiatry revealed some of the tensions that existed between the public and the expert. It was no easy task to show the obvious signs of “madness.” One anonymous doctor writing in the Boston Medical Intelligencer drew on the prominent example of London’s Bethlem Hospital to illustrate public perceptions of insanity. Asylum visitors were “most eager to penetrate into the recesses of the furious and naked maniac; the hideous howlings of these violently affected, forcibly arrested their attention. With the insane of a milder case, they were but slightly interested.”⁶ While the “violently affected” captured the public’s attention, they also shaped the public’s perception of mental illness as something that was easily observable. The public’s fascination with more extreme, and thus observable, cases of insanity lent a certain legitimacy to them, but obscured the existence of “milder” forms of mental illness from public view. Specializing in the field of mental health granted doctors the supposed ability to identify these most covert forms of mental illness, even “the insane of a milder case.” While they claimed that this specialized knowledge helped to illustrate all forms of insanity — both mild and severe — it was still difficult to demonstrate this to a wider audience. The public expected insanity to be immediately recognizable and obvious, even if this was not always the case.

From the 1820s to the 1840s, condemnation of the insanity defense in the press focused on the difficulty of assessing the insanity of individuals who used the defense. How could any expert say with certainty that a criminal was insane? In 1829, one anonymous professor asserted of the insane that “frequently, their feelings are of a malignant character, whilst, at the same time, they are extremely cunning, and deceive and throw off their guard those whose duty it is to attend to them.”⁷ Public opinion saw mental illness as something that could be feigned, with experts unable to judge the case correctly. In 1842, another anonymous writer for a New York-based penny press claimed that “we find a man named John Buchanan, applying to a physician for a certificate of insanity, obtaining it, and then posting off with the document in his pocket, and attempting to kill his wife.”⁸ While showing a certificate of insanity after attempting a murder was not quite how the insanity plea was used in reality, the story reflected a view that doctors helped facilitate the use and “abuse” of the plea. As a result, public doubt in doctors’ abilities to identify insanity went hand in hand with their doubt of the insanity defense.

Consequently, doubt in the defense manifested in vitriol, with newspapers propagating many of the same myths that we hear in contemporary times. In 1840, a writer criticized the plea for its “almost universal success” and as “the only chance of escape for the accused,” within American courts — in this case, specifically those occurring in New York and Pennsylvania.⁹ Public perceptions persisted in their belief that the plea was easily feigned, overused, and primarily a means to escape punishment (whether it be incarceration or death). Even fifty years later, one writer remarked that “the insanity plea is a most damnable fraud, and it should become abhorrent to all law-abiding Kentuckians.”¹⁰ Even in the face of major legislative changes, and developments in psychiatry, perceptions of the insanity defense remained much the same throughout the nineteenth-century.

More than anything, popular backlash has shaped the plea, to the degree that it is now a matter before the Supreme Court. As June 2019, legal historians and sociologists submitted a brief as amici curiae in support of Kahler. As they rightfully point out, the legal history of the defense is essential to understanding its enduring role within the courts. However, it is just as vital to understand the origins of public perceptions of the insanity defense and their potential influence in the courts. As doubts in medical expertise within the courts continues alongside a criminal justice system that often serves as an unwelcome space for the mentally ill, the insanity defense remains a fundamental protection. Come this fall, we will see if the Supreme Court agrees.

Steph Chevalier-Crockett

Steph Chevalier-Crockett is a graduate student at Concordia University. Her work focuses on the interactions between law, psychology, and popular culture in nineteenth-century America.

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