The Insanity of the Mens Rea Model: Due Process and the Abolition of the Insanity Defense

Full-text available at SSRN. See link in this record.In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense. During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to present an affirmative defense of insanity. Unfortunately, the Court chose to not to answer the question. Although scholars have poured over the Clark v. Arizona decision, there is very little discussion about whether the abolition of the insanity defense does in fact violate the Due Process Clause. This article addresses that question. The article argues that mens rea includes not just the intent to act, but moral blameworthiness. As such, an affirmative defense of insanity cannot be constitutionally abolished. The article traces the history of mens rea and establishes that blameworthiness has been a component of mens rea since the 12th century and certainly exited at common law. As common law is the basis for defining due process protections, moral blameworthiness, as a component of mens rea, is constitutionally protected. The article examines the state court opinions that have upheld the abolition of the affirmative defense of insanity and explains how they fail to either understand the duality of mens rea or apply it in a helpful way. The next section addresses the Supreme Court opinion in Clark. Despite the Court passing on the opportunity to rule on the issue, the opinion establishes that the Court is open to the idea that an insanity defense is constitutionally required. Finally, the article provides the analysis of mens rea and due process that the Court should have made and concludes that an affirmative defense of insanity cannot be constitutionally abolished