Kahler v. Kansas: So what else is new?

By David Shapiro, Ph.D.
April 13, 2021 - Last updated: April 12, 2021

On March 23, 2020, the U.S. Supreme Court issued its ruling in Kahler v. Kansas. To understand the importance of this case,

we need to put it in historical context and examine the misunderstandings through the years of the defense of not guilty by reason of insanity.

For many years, most states embraced the so-called M’Naghten rule, which originated in 1843 in England. It said the standard for insanity would have three parts: The defendant was mentally ill; that illness resulted in an inability to know the nature and quality of his or her actions, or the illness resulted in an inability to know the wrongfulness of his or her actions.

Some states supplemented this with an “irresistible impulse test,” but it was never widely adopted because of the difficulty of measuring the strength of impulse control.

In 1954, a broader test (Durham v. United States) proposed

that an insanity defense was applicable if the criminal

behavior was the product of mental disease or defect.

This standard was short-lived as there were many difficulties and

controversies regarding the definition of mental illness and the definition

of “product.”

In 1972, the courts adopted the American Law Institute Standard, which was essentially an update of M’Naghten and irresistible impulse control. The insanity defense would apply if the defendant was mentally ill and the mental illness resulted in a substantial inability to appreciate the wrongfulness of his or her actions or a substantial inability to conform his or her behavior to the requirements of the law.

This standard lasted until Congress passed the Insanity Defense Reform Act of 1984, which was essentially a return to the old M’Naghten standard. Here the impact of impulses and delusions was discarded in favor of a rigid standard that restricted insanity to someone who was severely mentally ill and therefore unable to appreciate the nature and quality or the wrongfulness of his or her behavior. Even if a person’s crime were due to a delusional system, if the defendant showed any awareness of wrongfulness, such as fleeing the scene, he or she would not meet the criteria for insanity.

Several states then abolished the insanity defense and others restricted it dramatically. Some experimented with what was called “guilty but mentally ill” in which a defendant would be convicted of a crime, but because of mental illness would be sent to a psychiatric facility until the illness was in remission. Then the defendant could be transferred to prison for the remainder of the sentence.

Attorneys in several states then raised issues relevant to the restriction or elimination of the insanity standard. The Kahler case was one. Kansas had abolished the insanity defense and substituted it with a “mens rea” test. This was a narrow and strict interpretation of the first prong of M’Naghten (appreciation of the nature and quality of the act). It held that insanity could be asserted only if the defendant did not know he or she was committing an act that could be considered criminal. So, if someone thought that he or she had shot a hat rather than a person, insanity could be a defense.

The Supreme Court ruled that this restrictive insanity defense was not a violation of the 14th Amendment (due process) or equal protection under the law. The court deferred, as it had on several previous occasions, to the right of states to make laws and interpret them as they saw fit.

Essentially, the high court was saying that as long as mental health issues were considered by the state, there was no constitutional violation. The Supreme Court had ruled similarly in 2008 in Clark v. Arizona. Eric Clark contended that Arizona’s statute restricting an insanity defense to the inability to appreciate wrongfulness deprived him of the right to assert that he could not appreciate the nature and quality of his act. (Clark had shot a police officer he perceived was an alien trying to kill him.) This is, in a sense, the exact opposite of the Kahler case, illustrating that there is little consensus on these matters.

What are the implications of these narrow and restrictive laws?

Clearly, defendants who are seriously mentally ill but do not fit into the neat cubbyhole carved out by a legislature for legal insanity will not get the treatment they need.

The number of mentally ill inmates in prison has increased dramatically since the 1980s, when about 4 percent were found to be mentally ill. The current figure, depending on the state, is between 18 and 25 percent.

We cannot attribute this increase solely to the tightening of the insanity defense standards. Future research should delve into this.

FAA will skip latest version of MMPI

By Chuck Nelson, Associate Editor
April 13, 2021 - Last updated: April 12, 2021

The Federal Aviation Administration (FAA) will continue to use the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) test to evaluate pilots and other

aerospace personnel, forgoing the latest variants of the test, including the newest one released late last year.

That decision has renewed a debate in psychology circles documented in earlier editions of The National Psychologist (“The more things change … Friedman and Nichols react to a new version of the MMPI,” March/ April 2018 and “MMPI-3: Revision of MMPI-3 or marketing hype?” Nov./ Dec. 2017). Much of the controversy surrounds which versions of the tests build on prior versions and which should be viewed as alternatives rather than replacements as well as the accuracy of earlier vs. later versions.

That debate was rekindled in November with the release of the MMPI-3 by the University of Minnesota Press. The publisher bills the MMPI-3 as “the first full revision of the test since the late 1980s” and says the new version was designed to more closely match 2020 U.S. Census projections for race and ethnicity, education and age.

But the FAA and others argue that the MMPI-3 builds off of the MMPI-2-RF

(reformatted), which they say “was a completely new test and not a revision

of the MMPI/MMPI-2.”

“Rather than being the latest in a potential line of MMPI revisions, such as the

MMPI-2, the MMPI-3 is, instead, simply a revision of the MMPI-2-RF,” the FAA

said in a statement released in November.

“Research conducted by the FAA found the MMPI-2-RF to be less sensitive than

the MMPI-2 in identifying confirmed aeromedically disqualifying psychopathology

among ATCS (air traffic control specialists) applicants,” the FAA said. “Further research with over 21,000 ATCS applicants confirmed the stability of the MMPI-2 ATC norms and the utility of the MMPI-2 in the evaluations of ATCS applicants.”

The authors of the new test call the FAA an outlier for its stance and note that other federal agencies – as well as several large police forces – have used the MMPI-2-RF “and some are transitioning to the MMPI-3.”

The original MMPI dates back to 1937 when Starke Hathaway, Ph.D., a clinical psychologist, and J. Charnley McKinley, M.D., Ph.D., a neuropsychiatrist, developed the test at the University of Minnesota Hospital. A manual for the test was published in 1942 by the University of Minnesota Press. That version became widely used in general medical settings as well as for military personnel and people employed in positions of high stress and responsibility for public safety.

Auke Tellegen, Ph.D., was involved in MMPI-2 – a substantial updating of the original test – in 1989. His further development with Yossef Ben-Porath, Ph.D., resulted in the MMPI-2-RF in 2008 as well the new MMPI-3.

“The primary goals for the MMPI-3 were to enhance the item pool, update the test norms, optimize existing scales, and introduce new scales where warranted,” the publishers said in a statement. “Additionally, for the first time, Spanish-language norms are available for use with the U.S. Spanish translation of the MMPI-3. New scales assess disordered eating, compulsivity, impulsivity and self-importance and several existing scales have been enhanced.”