Editorial: Fairness is at stake in two Supreme Court arguments


The U.S. Constitution contains an array of protections for those who are caught up in the criminal justice system. But they would be far less meaningful were it not for what some call the “activist judges” of the Supreme Court.

For example, it was the court that held that the 4th Amendment’s ban on unreasonable searches requires law enforcement officers to obtain a warrant before eavesdropping on a telephone call or rifling through the contents of a smartphone belonging to someone under arrest. And it was the court that insisted that, to honor the 5th Amendment’s protection against self-incrimination, police must tell suspects in custody that they have a right to remain silent and a right to a lawyer — part of the so-called Miranda warning.

On Monday, the first day of its new term, the court will hear two cases that will allow it to burnish — or tarnish — its reputation as a champion of the rights of the accused.

First, the justices will hear the appeal of James Kahler, who was convicted in Kansas of the 2009 murders of four family members. The crime was heinous, but Kahler’s lawyer argued at trial that his client’s actions resulted from depression so severe that he couldn’t form the necessary criminal intent.


The jury wasn’t convinced, but it might have reacted differently if Kahler had been able to plead “not guilty by reason of insanity.” That option was unavailable, however, because Kansas is one of several jurisdictions that have abolished or weakened the insanity defense. A major factor in that trend was public outrage over the insanity acquittal of John W. Hinckley, Jr., who attempted to assassinate President Reagan in 1981.

Contrary to public belief, defendants acquitted because of insanity aren’t free to walk the streets. More commonly, they are committed to mental hospitals for long periods. Hinckley remained in a Washington, D.C., hospital until 2016 (though he was allowed to make visits to his parents’ home in later years).

The insanity defense, though rarely asserted, isn’t some newfangled notion from modern psychology. The definition of legal insanity used by about half the states including California (and formerly used by Kansas) traces back to the so-called M’Naghten Rule adopted in Britain in the 19th century. It defines legal insanity as the inability of an individual, because of a mental disease or defect, either to understand the “nature and quality” of his act or to realize that it’s wrong. That’s a vitally important principle.

On Monday, Kahler’s lawyer will argue that Kansas’ abolition of the insanity defense violates the 8th Amendment’s prohibition of cruel and unusual punishments and the 14th Amendment’s guarantee of due process of law. That is how the court must rule.

Monday’s other major criminal-justice argument involves Evangelisto Ramos, who was convicted in 2016 of murdering a woman named Trinece Fedison whose body was found in a New Orleans trash can.

But only 10 of the 12 jurors voted for conviction, a practice permitted by Louisiana law at the time for cases that didn’t involve the death penalty. Louisiana requires unanimous jury verdicts for serious crimes committed after Jan. 1 of this year, but Oregon continues to allow non-unanimous verdicts in felony cases. Other states could do so unless the court rules for Ramos. It should do so for two reasons.

In the film “12 Angry Men,” a lone juror holds out when the rest of the jury is in a rush to convict the defendant, and eventually the other jurors agree on acquittal. Idealized as the movie’s plot may be, it communicates an important truth: that the unanimity requirement encourages serious deliberation and prevents some jurors from being ignored or excluded. (In a friend-of-the-court brief, the NAACP Legal Defense and Educational Fund suggests that non-unanimous juries in Louisiana were historically designed ”to nullify the votes of black jurors and allow white jurors to more easily convict black defendants.”)


The second reason Ramos should prevail is that the court in recent decades has made it clear that, because of the 14th Amendment, most provisions of the Bill of Rights apply in identical fashion to the federal government and the states.

That sensible view clashes with the peculiar outcome of a 1972 decision in which the court seemed to say that while juries in federal trials must be unanimous, states were free to allow non-unanimous verdicts. This two-tiered interpretation of the 6th Amendment’s guarantee of a jury trial makes no sense. If Ramos had been tried in federal court, he could have been convicted only by a unanimous vote. The court must insist that the states abide by the same requirement.