Three Mountain West States Don't Have A Traditional Insanity Defense. That Could Change Soon.

Nov 12, 2019

Last year, on a warm Saturday evening in Boise, Idaho, Timmy Earl Kinner Jr. walked into the birthday party of a family. In a random attack, he stabbed nine people, including the birthday girl Ruya Kadir. That little girl died at just three years old.

There’s a gag order on the trial so information is sparse, but we know the judge found that Kinner was not mentally competent to stand trial  – until recently.

“Because the court has determined that you are competent to proceed in this matter, I am going to take the opportunity to re-arraign you on the charges,” Judge Nancy Baskin told Kinner in court on October 23.

Kinner is facing the death penalty. However, Baskin noted that the U.S. Supreme Court case Kahler v. Kansas could change the outcome for him.

The idea that people who suffer from severe mental illnesses shouldn’t be charged with crimes goes back centuries. In some writings, the mythological figure Hercules even went mad, killing his wife and children. That’s why he was doing all those physical trials: to repent and make amends.

But the way we define insanity and prosecute those who do heinous acts under psychosis has never truly been standardized. Tests vary across the world, and in the U.S., four states don’t even have a traditional insanity defense. Three of those are in the Mountain West. 

While that defense doesn’t affect a lot of criminal cases – less than one percent of felony defendants  – a U.S. Supreme Court case could set the first baseline defense in the nation, forcing states like Idaho, Montana, Utah and Kansas to change their laws. 

Back Story

Idaho hasn’t had an insanity defense since 1982. It was part of a nationwide uproar after John Hinkley Jr. was found not guilty by reason of insanity after attempting to assassinate President Ronald Reagan. 

In response, many people feared killers would be let loose on the streets using the defense. A Wyoming study in 1982 showed that people were significantly overestimating the number of times alleged criminals who tried to use the defense.

Federal and state laws around the nation narrowed people’s ability to use the traditional insanity defense. But Idaho, Utah and Kansas went a step further. They decided to follow a decision Montana had already made back in the 70s: eliminate the insanity defense altogether. 

This data shows whether a state has a traditional insanity defense, who must prove that someone qualifies for that defense and the type of rule each state uses to determine whether someone qualifies for the defense. The map shows the patchwork of ways states apply insanity defenses around the nation.

Instead, those states focus on a different approach – mens rea, which roughly translates to guilty mind in Latin. That defense says that if you don’t know you’re committing a crime, you can’t be convicted (like if you think you’re flying a kite instead of committing that crime). 

However, if you knowingly kill a person, mens rea won’t protect you from being found guilty, even if mental illness affected your ability to know the difference between right and wrong.

And that defense is at the heart of Kahler v. Kansas, the case that could change how Mountain West courtrooms use the insanity defense. That case involves a Kansas man charged with murdering his ex-wife, her mother and his two teenage daughters. He let his young son go free – the one he liked the most. His lawyers argue he has a major depressive disorder, which affected his actions.

While justices were vocally skeptical whether Kahler would be eligible for any kind of insanity defense, Justice Stephen Breyer repeatedly asked the attorneys for the state of Kansas to explain how mens rea meets constitutional muster. He gave them a hypothetical based on an imaginary murder victim called Smith.

“The first defendant thinks that Smith is a dog. The second defendant knows it’s a person, but the dog told him to do it. OK? What’s the difference?” he asked.

Theoretically, the difference is that under mens rea, the defendant can only use that defense if they think the person is a dog. The other person technically knew they were murdering a person. 

But Kansas Solicitor General Toby Crouse argued there’s no clear answer. Instead he pointed to the inconsistencies in states that use the traditional insanity defense.

“I think that the problem is that states have grappled with this and they’ve made different moral judgements as to who is morally responsible,” he said.

Crouse argued there’s just no consensus among those states on which tests to use. He also pointed to the various forms of insanity defense used over centuries, with varying outcomes. 

But critics of Kansas’ position say that at least the traditional insanity defense usually offers this.   

“I certainly think the jury deserves to hear expert testimony,” said Joel Dvoskin, a psychologist and a professor at the University of Arizona. 

Dvoskin is talking about expert testimony on a defendant’s history of mental illness. That’s not guaranteed with a mens rea defense, though the judge can take it into account during sentencing.  

Dvoskin helped run the forensic and correctional mental health system for New York state, and he said the criminal justice system is not the place for the mentally ill. 

“If you believe in rehabilitation, you're fixing the wrong thing if you put them in prison. If you believe that, well, this will teach them a lesson not to do it again, that implies that they knew what they were doing was wrong,” he said.

And he said even if someone is found “not guilty by reason of insanity,” they’re not getting off. They’re held in a mental health facility until they’re not a threat, possibly years longer than a prison sentence.

Attorneys general in Utah, Montana and Idaho refused to comment, but all were part of a brief that said states should have the power to establish their own type of insanity defense, including mens rea. In a separate brief, two victims groups argued that the insanity defense could give victims less of a say in court proceedings, but neither returned calls for comment.

Changing The Defense In Utah

Utah representative Carol Spackman Moss (D-Holladay) is on a mission to get the insanity defense back in her state, with or without the U.S. Supreme Court. She presented a bill last legislative session, but “the judiciary committee thought it was just a big idea and a big change that we should have further study ... So we’re preparing another bill for this session.”

For Moss, it’s personal. A man who grew up four houses down from her in Holladay, Utah, murdered his parents. Moss knew Robert Liddiard and his family well, including his struggles with mental illness. He worked as a nurse but had stopped taking the medications that controlled his mental illnesses, including schizophrenia and bipolar disorders.

“And on a Saturday morning, he killed his parents," she said. "Called his sister and said, ‘I had to kill mom and dad because Satan was in them.'"

After the murders, he was sent to jail to await his trial. Moss said he continued deteriorating in his cell. 

“His delusions were worse. He wasn't given his regular medication. He was diabetic, didn't have an insulin pump that worked. And he became catatonic, they had him in solitary and he was dying,” she said.

So Liddiard was moved to a state hospital where he’s now waiting to be deemed competent enough to stand trial. 

Mark Moffitt is on Moss’ committee looking into bringing back the insanity defense to the state “and we are in the process now of redrafting some legislation.”

Moffit is a criminal defense attorney. He says in some states people can plead guilty and mentally ill. They may serve some time in a hospital, but once they reach a certain point in treatment, they can be sent back to prison. Moffit wants to change that.

“Is it good criminal justice policy to punish people for crimes that they commit when they are incapable of discerning the difference between right and wrong?” he asked.

He doesn’t think so.

Neither do the lawyers representing a Kansas defendant accused of murder. If they get their way, though, it won’t just be Utah re-introducing an insanity defense. It would be Kansas, Montana and Idaho, too. 

State Hospital South Administrator James Price was cautious when talking about the potential for the insanity defense to come back into Idaho. He didn't give an opinion on whether he'd want it to return, but did explain that he had concerns.
Credit Madelyn Beck / The Mountain West News Bureau

The State Hospital

At least one of Idaho’s hospital administrators is concerned about how an insanity defense would be applied.

“For those who might have received a long sentence based on the nature of the crime, how long would they be required to stay in a hospital?” asked James Price, administrator for State Hospital South in Blackfoot, Idaho. 

Price says that already about a third of the 90 or so adult patients there are waiting to be found competent to stand trial.

“Probably 90% or more of the patients who are committed in a criminal case are restored to fitness and so they end up returning back to jail to proceed with their criminal case,” he said.

Those kinds of cases take precedence over people who would be civilly committed if they’re acting in a way that could present a danger to themselves or others. 

“We've always had a waiting list,” he said. 

Price took me to one of the hospital wings where many patients struggle with schizophrenia, bipolar disorder or both.  

On the outside, it was pretty nondescript. It looked like a grade school with dark-colored bricks and a gazebo, though its black fences were a bit higher than usual, curling inward at the top. 

Inside the wing, it looked like a mixture between a hospital, an elementary school and a college dorm lobby. The cinder block walls were painted light blue and there was a mural showing what the area looked like in the 1800s. There was a fish tank and festive fall decorations. A nursing station sat at the front with male and female patients wandering around.   

People working there were proud of the facility, often talking about ways to make residents feel more at home. They even take some of them for golf cart rides outside the facility.

Price wanted to make a point: his hospital isn’t a prison. Criminally committed patients there are treated like civilly committed patients, which means they aren’t usually locked in their rooms.

“If we use seclusion and restraint, it has to be on a very limited basis, only to address a particular incident and can only last for as long as needed to make the environment safe,” he said. 

So he said if the law changes, they may have to treat more patients in dangerously ill conditions. While that’s often temporary, he worries it could put staff and other patients at risk. 

Timmy Kinner in Idaho was found “dangerously mentally ill,” so instead of going to Price’s facility, he was held in the state prison. While he did receive treatment there, prisons generally involve less autonomy and concentrate far less on homey touches like the state hospital. 

Moss in Utah says her state bill would address some of Price’s concerns through funding. Generally, she wants more money to go into the mental health system to take care of these high-needs patients and potentially prevent them from ever committing a crime.

“I think it’s really a mark of society how we treat people that are ill and, you know, that are treatable, but it does take money,” she said. 

The jury is still out on her proposal, but the Supreme Court ruling on Kahler v. Kansas is expected by June. 

For alleged criminals like Timmy Kinner in Idaho, that ruling could be the difference between life and death.

Find reporter Madelyn Beck on Twitter @MadelynBeck8

Copyright 2019 Boise State Public Radio

This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUER in Salt Lake City, KUNR in Nevada, and KRCC and KUNC in Colorado.