Cruelty to the Mentally ILL: An Eighth Amendment Challenge to the Abolition of the Insanity Defense

This Comment addresses the present gap in insanity-defense laws created by the defense’s abolition and offers an Eighth Amendment based remedy. Part I reviews the history and evolution of the insanity defense in Anglo-American law. It then describes how four states have statutorily abolished the defense. It concludes with a discussion of Clark v. Arizona, the Court’s most recent decision on the constitutionality of the insanity defense. Part II turns to the Eighth Amendment, examining its historical understanding and the contemporary evolving-standards-of-decency analysis, through which the Court assesses the constitutionality of modern-day punishments. Part II concludes with a discussion of Robinson v. California and Powell v. Texas, two non-death-penalty Eighth Amendment decisions that illustrate contrasting approaches to Eighth Amendment interpretation. Part III examines the Court’s recent Eighth Amendment death-penalty jurisprudence, focusing on two decisions involving mentally deficient offenders, Roper v. Simmons and Atkins v. Virginia, where the Court expanded the Eighth Amendment to protect two groups—minors and the mentally retarded—against the imposition of capital punishment. Part IV argues that these recent precedents are sufficiently analogous, legally and factually, to the insane-offender context; therefore, the Court should apply the rules and reasoning of these decisions to the issue of punishing the insane. Part V then applies the Roper and Atkins Eighth Amendment analyses to the issue of criminal punishment for otherwise insane offenders, the end result of abolishing the insanity defense. Part V concludes that under these new precedents, abolition of the insanity defense results in unconstitutionally excessive punishments, in violation of the Eighth Amendment to the Constitution. Accordingly, this Comment concludes that the safeguard against this constitutional violation—the affirmative insanity defense—merits constitutional protection