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In 2009, a distraught and depressed James Kahler drove to Burlingame, Kan., where he shot and killed his wife, two daughters and his wife’s grandmother. He allowed his then-10-year-old son to escape, ostensibly because the son sided with Kahler in a bitter marital dispute.

Convicted of murder and sentenced to death, Kahler, a onetime city official in Columbia, Mo., is being held at the El Dorado Correctional Center.

But on Monday, Kahler’s lawyers appeared before the U.S. Supreme Court to argue that he was improperly denied the opportunity to argue that he’s not guilty of murder in connection with the shootings because he was insane at the time.

Unlike Illinois and 44 other states, Kansas law does not permit criminal defendants to argue they were insane when they committed a crime. Instead, the law there allows a defendant “to argue that he could not have intended to commit the crime because of his mental illness but makes clear that mental illness ‘is not otherwise a defense,’” according to legal analyst Amy Howe.

States are considered to be laboratories of democracy, free to adopt their own policies in keeping with traditional mores and legislative goals.

Kahler’s lawyers seek to go over the heads of state legislators and persuade the high court that the U.S. Constitution — through the Eighth Amendment ban on “cruel and unusual punishment” — mandates criminal defendants be afforded the opportunity to present an insanity defense.

“My guess is that the court is going to have a hard time finding a right to an insanity defense in the Eighth Amendment,” said University of Illinois law Professor Andrew Leipold. “But I wouldn’t bet a lot of money on it.”

Although the insanity defense is familiar to a wide segment of the public, it’s rarely used and even more rarely used successfully. It’s high profile because of the cases in which it’s been successfully raised, most prominently in the 1981 attempted assassination of President Ronald Reagan.

Locally, prosecution and defense lawyers have come to common agreements on the resolution of some cases involving defendants who are severely mentally ill.

Take the fatal 2011 shooting of prominent Champaign resident Harlan James by his cousin Gerard James.

Gerard James was found not guilty by reason of insanity, but has been confined since then to a mental hospital

More recently, a Champaign County judge rejected the insanity defense offered by Thomas Boitnott. His lawyers argued that Boitnott didn’t understand the criminality of his actions when, in June 2015, he abandoned his infant daughter in a soybean field. Boitnott was found guilty but mentally ill and sentenced to 18 years in prison.

Kansas law holds an individual legally responsible for his criminal conduct if he intended to commit a criminal act. It does not focus on the issue, as laws in many other jurisdictions do, of whether the individual knew his conduct was wrong.

Leipold said “even people who are legally insane can still ‘intend.’” The question, he said, is often what’s driving intent, like a person hearing voices telling him to kill.

Supreme Court Justice Anthony Kennedy addressed that issue with a clever question during oral arguments.

Referring to two hypothetical killings of a man named Smith by two different killers, Kennedy said, “The first defendant thinks that Smith is a dog. The second defendant knows (Smith) is a person, but thinks a dog told him to do it. OK? What’s the difference?”

The question of mental health has long been a part of the criminal-justice process, one example being that an individual cannot be brought to trial if he is not mentally fit enough to understand the nature of the proceedings or cooperate with his lawyer.

Legal insanity, of course, is a different question that goes to guilt or innocence.

Kahler’s lawyers argue that when Kansas eliminated the insanity defense, it was a radical and unconstitutional departure from legal norms.

Kansas’ lawyers respond that it’s nothing of the sort, merely the kind of legal tinkering that states are allowed under the U.S. Constitution.

During oral arguments, at least one justice, Samuel Alito, cited evidence that indicated Kahler knew what he was doing when he killed his family members. He suggested an insanity defense, even if raised, would not have been successful.

Kahler’s lawyers acknowledged that the facts are “hard in this case” but contended tahat their client still ought to be allowed to raise insanity as a defense.

The legal question, of course, goes to whether the Constitution mandates an insanity defense as an option, not whether it’s a good idea that legislatures should have statutes authorizing it.

Noting that the Constitution is silent on the issue of insanity, Illinois appeals court Justice Robert Steigmann described it as a “limited document” that leaves considerable discretion to Congress and the states.

“All that is good is not required by the Constitution,” he said. “And all that’s bad is not prohibited by the Constitution.”

Jim Dey is a staff writer for The News-Gazette. His email is

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Jim Dey is a staff writer for The News-Gazette. His email is