Kahler v. Kansas
harvardlawreview.org
harvardlawreview.org
I feel like this is fundamentally misguided on some level when, apparently, there's fundamentally no one charged with any meaningful duty towards protecting those who get victimized. But most people never have to think about this, so how many even think about kids who find brain matter from a badly beaten "hat" staining the basement walls?
I share your skepticism, but unfortunately I don't think anyone else has that ability either. So any time anyone who raises an insanity defense is allowed to go free, society is taking a risk.
In the particular case discussed in this article, I'm not sure there was much of a risk, since the reason for the claimed insanity was a very particular situation and it was directed at particular individuals. There was no evidence that the defendant was likely to harm anyone else. But of course that's not true in many cases involving an insanity defense.
To me the idea of denying this in a judicial setting even as a possibility is absurd. Maybe I misread it, but I thought the piece was arguing against the broader rationales about grounds rather than anything about the disposition of the particular case per se.
"A bizarre example may shed light on the paradoxes of a legal tradition that has lost contact with its theological sources. If a sane man is convicted of murder and sentenced to death, and thereafter, before the sentence is carried out, he becomes insane, his execution will be postponed until he recovers his sanity.
Generally speaking, this is the law in Western countries and in many non-Western countries as well. Why? The historical answer, in the West, is that if a man is executed while he is insane he will not have had the opportunity freely to confess his sins and to take the sacrament of holy communion. He must be allowed to recover his sanity before he dies so that his soul will not be condemned to eternal hellfire but will instead have the opportunity to expiate his sins in purgatory and ultimately, at the Last Judgment, to enter the kingdom of heaven. But where none of this is believed, why keep the insane man alive until he recovers, and then kill him?
The example is, perhaps, of minor importance in itself; but what it illustrates is that the legal systems of all Western countries, and of all nonWestern countries that have come under the influence of Western law, are a secular residue of religious attitudes and assumptions which historically found expression first in the liturgy and rituals and doctrine of the church and thereafter in the institutions and concepts and values of the law. When these historical roots are not understood, many parts of the law appear to lack any underlying source of validity." (pp 165-166)
If you strip away this interesting theological context, the insanity defense doesn't make any sense.
It’s very much a product of the enlightenment and post-enlightenment and post-enlightenment liberalism.
It doesn’t exist under Roman Catholic canon law - which lumps the mentally ill together with children as “lacking reason.”
The quote you’re citing isn’t about the insanity defense. It’s about not carrying out a sentence on someone found guilty. That’s a very very different thing than the insanity defense.