moral judgment to discern and to choose between right and wrong the insane lack that capacity this understanding of insanity has persisted since the fifteen hundreds and remains the rule in forty eight jurisdictions today but kansas scrubs moral capacity from its criminal law and runs afoul of the th and the th amendments kansas rewrites history in two ways st by elevating the wild beast test one that was never used in this country and only rarely in england and secondly by conflating common law intent which required a vicious well it was bound up in moral capacity with what it applies today a morality free modern mens rea as such kansas up roots the deeply rooted by eliminating any mechanism to assess whether defendant's capacity for moral judgment was intact or was irretrievably compromised by mental illness now i'd like to turn briefly to due process st and explain why the moral capacity notion is and always has been fundamental in our system the model penal code is an exact excellent example as criminal law evolved the drafters moved to more precise mental states when they did that though they retained the compelling mechanism to show insanity we could do that the drafters said because we kept this this narrow remnant of common law criminality in clark to this court recognized both the presumption of sanity and that evidence of insanity trumps mens rea this demonstrates the continued need for a mechanism to rebut the presumption of sanity even when even though a defendant harbors the requisite mental state and it was not only the mechanism that was important clarke the substance was to this court said arizona could do that it could eliminate the st part of the mcnaughton test because it kept this the right and wrong principle that subsumes it so i'd like to now turn back for models and one is what's known as a judgment guilty but insane that is to determine a made did the defendant do  incapacitation in a mental institution guilty and not insane will lead to incarceration in prison with surface again if adopted by a state of the united states violate process yes it would justice ginsburg and i think it would because the conviction itself carries collateral consequences which and we have never as a country treated the insane as culpable and that conviction would  would impose collateral consequences on the same person who really should be excused but i would have thought you would want collateral consequences imposed as i understood your submission because the idea is that someone acquitted by reason of insanity would not go free but wouldn't be committed to mental care yes that's right your honor but why would we put out a plan to the consequence of the system justice ginsberg was talking about guilty but insane i don't understand why that's not exactly the sort of course you're looking for well i want to rewind a little bit your honor because really what we're talking about is the mechanism to be able to show that you lack moral capacity the back end of it as long as you have the mechanism to show that you lack moral capacity that you can choose right from wrong or can't do that then the ultimate result is not all that determine if guilty but insane means that you if you end up in exactly the same place then i suppose the label doesn't matter but what i'm nervous about actually is if you have a guilty but insane some of those statutes in some jurisdictions are you're guilty you go and get treatment and then once you are well i put the nickel is the question of where the person is in class rated is determined nd it has no collateral consequences if you have committed the conduct charge but because you are insane you go to a mental institution so we take any kind of collateral consequences that would label you on the criminal side it's just you have committed the charged with  are insane therefore you go to a mental institution that you think with well a good question well your honor you know to the extent so i guess i would go back to history on this and what we know is that these people were not even subject to prosecution at all hawkins in his plea of the crown said so but as long as it's a mechanism as long as the mechanism for the defendant to present his lack of moral capability at the back end if the regime protects him in that way but i also disagree honor that the conviction doesn't stigmatize or show that he is guilty i mean if you're found guilty you have that conviction i do think that the insane need mental treatment they need commitment so i guess i'm not in the last i'm missing your point i believe it's more about the mechanism not allowing a conviction of an insane per your talking about lack of moral capacity would it be unconstitutional if a state a person is sane if the person knows that the act is illegal even if the person no thinks that the act is moral so the right and wrong principle your honor includes both knowledge of legal wrong and knowledge of moral wrong there's very little light between the two well i don't know that that's the case someone can know that something is it legal but feel very strongly that it is moral so what's the answer to my question justice alito it's not about a belief it's about a capacity fuelled by mental illness so if a person justifies or believes that they are justified in acting in that way they're not covered by this baseline standard well if the universe if the person has the capacity to know that what he did was a violation of the criminal law and that's the defense is provided by the state is that unconstitutional no so long as it encompasses it can't just be that you are that you you forgot what criminal law is what justice breyer said in the dissent from the denial of certain delling was that what legally wrong means and it still falls within the right and wrong print principle what legally wrong means is that you are unable to comprehend the actual nature of of the act such that you believe for example that you're falling into a defense well there are many many people who believe maybe not so much for murder but certainly for a lot of other offenses that things that are violations of the law are nevertheless moral and so if that were the general rule in criminal law that you cannot be convicted if you if you know that  if you believe that what you've done is moral that would revolutionize com one and the only element that you are adding to that is that this is caused by a mental disorder so it becomes important to understand what you mean by mental disorder and what do you mean by a mental disorder or do you mean everything that is listed as a mental disorder in the latest edition of the d s m your honor it's not about the diagnosis and you asked what mental capacity means and what mental illness means i can put it this way it is as if a person it's again it's not about a belief it's not about justifying it's about you actually can't in to the part of your brain that allows you to choose right versus wrong and juries have in forty eight jurisdictions been able to make this distinction regardless of what the diagnosis what is the answer to my question is it sufficient if the person has something that is considered to be a mental disorder in the d s m and it's been calculated that one in five people in the united states has some mental disorder so we're talking about sixty plus sixty million  people all of them can go to the jury on the question of whether they had the capacity to know that what they were doing when they committed the crime was morally wrong justice alito they should be given the opportunity to at least try this shouldn't be legislatively cut off at the knees there are many mechanisms in place in our trial system many hoops that they would have to jump through but if they have a mental disease that is diagnosed then they should at least be able to get in the door and get evaluated and then proceed  about a premise of your argument and that's that if we look to history and if history supports what you say then we're obligated to go with it now and i just want to ask how and why that so because there are many ways in which understanding of criminal culpability change over the years and and how do we figure out which are the ones that the constitution change what do we do what we're not stuck with all of history our way so if we're if we're not stuck with all of history why are we obligated to keep this part of that well your honor because that's the test that this court has set out for due process and criminal the law of olden times seems remarkably archaic to us now marital rape exception maybe sodomy laws i'm sure that there are others that i could list you know what to stoop to require we hang on to not withstanding changing times and guess what is criminal not what is what is the due process cause require that we hang on to it notwithstand ing the judgments of some states that the time for this has come and gone but we are we actually have sort of a perfect confluence justice kagan because we have not only the history that goes back maybe a one thousand years and certainly since the mid fifty's hundreds but we also have the modern practice of fundamental rule of fundamental fairness currently in operation in forty eight dollars of fifty three dollars u s jurisdictions so it's not just the history it's the fact that we look and everyone has retained or nearly everyone has class ration worse than prison did we take that into account and deciding the function of the insanity defense i don't think you need to take it into a kind of think with the fundamental princip is is that the good and evil principle of right and wrong principle as applied to the insane it's the application to the end saying that has is deeply rooted in our country and where those people i mean in today's time those people wouldn't be right we know after five to that this those people are sent to an institution so no i don't think it's how they were historically where they ended up they ended up in a lot of places just skins work sometimes they ended up there sometimes they were released to their families so th that i think is underlying a lot of the debate is the expansive notion of what counts as evidence in the in your brief you say the  defend in this case was this is evidence to support his insanity claim was described by some as a tightwad who would for example borrow rather than purchase tools and in the same page again this is evidence that you selected in the put in your brief of his mental disorder that he thrived on self importance community prestige and being perceived as having an ideal or perfect marriage no maybe that's not the best way to order your life but if that's what you mean by insanity you can understand why that might cause some reservations your honor mr chief justice let me just tell you why those facts are in there and why they're not why they were there and that will shed light on it what we know is that mr kaylor had a major desk depressive disorder he had a qualifying mental illness those facts are in there to show that there was an entire other category of evidence that in combination with that major depressive know you can't you're mr chief justice you can't take that one fact out of context but the most important thing is that juries are able to take the collection of evidence and that is presented to them and decide they decide whether the person is insane whether they an able to tell right from what evidence is there that he was unable to make that distinction on the current record which of course was not developed with a right and wrong principle i would point you to the joint appendix of eighty seven where his expert said  that he couldn't rule out short term dissociation if you were offline in that way he couldn't appreciate right versus wrong but again i'd like to point out that he was he was not even given the opportunity to put forth that and to develop other evidence that would have shown because i didn't know that what i was doing was morally wrong and you'd think that if the jury believed that they wouldn't have imposed the death penalty but they did and we have to keep in mind what he did this is an intelligent man and he sneaked up on the house where his wife and her mother and his children were staying he killed his ex wife he killed his ex her mother he executed his two teenage daughters one of them is heard on the tape crying he nevertheless shot her to death he spared the son because he didn't think the son was siding with the mother and then he ran away and turn himself in the next day or now this is the stuff from which you're going to make a defense he didn't know that what he was doing was morally wrong much less he didn't know what he was doing was legally wrong just as legal answer the st part sentencing is not a substitute because we know from the briefs that jurors make up their mind at the guilt  fact that dissenting justice in the opinion below said we should not let what happens at guilt indicate what happens at sentencing him because he lacked that the jury lacked that lens to consider the moral capacity principle you can't draw any it would be speculative to say what the capital jury would have decided is that realistic on the jury and i say well now i've i've convicted this guy i found him guilty of having done that even though i think that he didn't know that what he was doing was morally wrong i'm going to vote to impose the death penalty is not realistic it is realistic because we know from the briefs that they that jurors are swayed by what they decide at the guilt phase and if they have lacked the mechanism and the opportunity to look through the lens of capacity for moral judgment then then we can't draw any conclusions about that now the facts are hard in every case and they are hard in this case but what we're talking about is an opportunity a mechanism for all defendants to be able to get into the threshold and let a jury decide you for ferde several times to the jury and one of the debates that has occurred over the last several decades is the capacity of juries to be able to parse these fine concepts and one of the things that leading scholars have said is that this may be beyond the capacity of jurors to do in a principled way so why can't a state say this justice alito points out we're going to take this away from the jury as a separate defense put it in the men critiques or the debates were not about abolition they were not about scrapping the defense entirely those should be handled through instructional or evidentiary mechanisms sort interrupted i think one of the debates was in fact about putting it into a mens rea a defense has kansas's gone in part because that the concept as a separate defense was too confusing for yours professor goldstein pointed that out in his book and that it's been part of the debate so they present in the mens rea approach is nothing more than what winship requires and we know that it is not sufficient because it doesn't allow it doesn't allow a jury or or the defendant to raise his capacity for moral judgment which if you go back through history was important component of the criminal cop mission do you have any information about how this works in the forty six states that have the rule that you prefer in other words how often do people raise insanity defenses how often do juries actually find insanity if this were in one of the other forty six states how would it operate but they are not of this case was i mean honestly you can't say this but i can this in one of these forty six states  you know what i found out if you'd like me to that's not it contained in the record but i do know that it is raised in the right and wrong states and that there are quibbles every year and so can i just one other question about the extent of how far this goes  see this is a capital case but how how far down the road would you say this defense must be extended as a matter of due process to all homicides to all felonies where do you think the line would be drawn i don't think that you draw the line justice or such a punishment so an insanity defense is required with respect to any criminal complaint even a regulatory strict liability  misdemeanor this court has never well so it's our position we're making official child so it's our position that it should be applied everywhere but this court has never definitively ruled on the extent of strict liability crimes i think it could carve that out but i think what's important are two things justice course which st of all this is a rarely used offense it's invoked in less than one percent of the cases and successful in only a quarter that we're not talking about a huge number of people but for the people that it really matters there is no mechanism in these states to protect them to let them be excused or let the jury consider their actual couple ability when they can't tap into their brains in the way other people's people can and i think jurors are able to decide that they decided the term reasonable is all the time if the state adopted the irresistible impulse to fence with up young constitutional this cortland said that it is not a constitutional force so no not whether it's required but would that be unconstitutional because it does not ask where the person knew right from wrong i think yes it would also have to include the right and wrong principle i'd like to turn briefly to the th amendment the original public meaning of that term was that it would be cruel and unusual to punish the insane in eight hundred and sixty eight dollars with the reconstruction amendments were adopted every single jurisdiction had an insanity defense and even if you rewind back to seven thousand nine hundred and one dollars it would have been cruel and unusual to punish the insane they were either handled outside of the legal process or they were allowed to come in and plead and prove insanity because the th amendment was was intended as a check on sovereign power states are simply not free to legislatively redefine culpability in a way that is inconsistent with history and longstanding practice but that is what kansas has done here it is an outlier it prevents people from it well by taking away the mechanism they ensure that insane people will be punished in their borders didn't reach that question so you're asking us to decide it as a matter st impression no justice ginsburg and this is you know this was vetted at the search stage and i would point this court to the addendum to at our search reply page eighteen in one thousand because there it's clear that this notion of applying wrongfulness to the insanity defense came up at oral argument was argued in that post argument memo counsel said we believe that this issue is presented we're going to if you want supplemental briefing will provide it but we believe it is an issue that is implicit in this court's ruling what do you do with the statement of justice marshall for plurality in power versus texas nothing could be less fruitful than for this court to be impelled in defining some sort of insanity defense or insanity test in constitutional terms and quote i think pointing out the difficulty of us through the due process clause wading into this policy debate and figuring out what the wind is just as coming out that in powell was not an abolition case st of all but secondly what justice powell said there was a reflection of the facts of that case that case had to grapple with leeland and the only mechanism or the only test that would have applied in powell is an irresistible or compulsion based task so our standard the right and wrong standard among those who have studied it which is true as to this as for the kansas approach as well there's wide disagreement but some of advocated for that oh well leland also recognized that the right and wrong principle was the majority  and briefly ok justice alito it's not that they were wrong it's just they were talking about a different scenario a non evolution case dealing with a test that is north of our standard thank you counsel this court indicated in power nearly fifty years ago nothing would be less fruitful than for this court to select a rigid rule of constitutional law of insanity and that admonition rings as true today as it did fifty years  think i'd like to talk about is that it's not deeply rooted the right vs wrong test is a relatively recent vintage the historical basis for it started somewhere around the eighteen hundreds and therefore is not deeply rooted in addition the states have had historical and traditional discretion to both define the elements of the criminal law the defenses that are available in those criminal justice proceedings and the substantive rules at which those defenses and elements are met and consistent with that discretion the state of kansas has a holistic approach to the mental illness problem starting at the time the criminal justice proceeding is initiated throughout the guilt phase as well as in the punishment phase and continuing on even with regard to the sentence carried out whether being in a prison or in a mental hospital these doctors confirm that petitioner is not mccary the heavy burden to identify a single rule that is clearly established and required by the fundamental elements of  process and for that reason we believe that the state supreme court judgment in cancer should be affirmed and so unless there are additional questions this court would have i'd like to st turn to the answer of justice alito is question and the answer is the right and wrong task has multiple components there is no consistent element or definition of how about applied in any of the forty six dollars jurisdictions as our brief points out there are a host of different factions and different ways in which those elements would be met and we or her what to do and they have no volition to fight back they many of them know they're killing somebody so intent on to your  men they absolutely know they're killing someone they just have no ability to say no they don't they can't because of their either mental illness is lunacy all of the and if the individual can't formulate the in criminal intent in kansas that that is a sufficient offense and that has not been it's not how i read your charge when i read the charge here doesn't talk you're talking  you have criminal intent that's right i would have no there's no yes you're adding a volition but what i'm saying is you're this test standing alone doesn't do that and so as i understand petitioners testers they want to ask the question of whether or not the individual knows that it's either legally or morally right versus wrong what qantas does is if you have criminal intent you are responsible but well you're conviction then you have the opportunity to assert a right versus wrong test well  that's the point which is that issue which is after conviction what she's been arguing is that since the beginning of time both under english law and at the time of the founding all the states then and frankly and so i think the one thousand nine hundred and seventy s all fifty states didn't make it a subject of sentencing they made it a reason for why you should be excused from your conduct for your conduct you're saying the same thing with something like to arrest i intend to kill someone but it's because somebody is holding a gun to my head all fifty states would let you off  you're now saying it's ok to stigmatize you with a criminal conviction even though in fact you may be insane i'm saying what the state of kansas has done is it's defined its mental illness defen handled everything with regard to criminal incidental crouse could you assume for a moment that i disagree with you on the reading of the historical record and just let's say that the historical record actually that there's much more evidence than you are suggesting that a defendant had to have a guilty mind meaning an understanding that what he was doing was immoral as well as the inability to form a specific criminal intent and if that's the case if you look at the the cases and say you know case after case after case what they're talking about is something more than criminal intent what they're talking about is some kind of moral understanding if that's the case what's your best argument that you should win so i think i have three the st one is the existence of strict liability the nd would be the existence of corporate liability and rd i think there's just the general understanding that criminal intent has always been separated from moral and moral capacity and even with regard to i think the hypothetical you've suggested i think we would have to know whether or not the right versus wrong test is being defined in a legal sense or a moral sense and even if so the states that have adopted the right versus wrong test have variations within them some for example like the federal government minder standing would require the severe mental you know i guess i understand that there are some variations in the historical record and even in states now but but there are some number of states a great number forty six states forty eight states whatever it is the go further than you do and turn as of saying something more is required distinguish between right and wrong and again let's just assume that that that's what the historical record said i know you don't agree with that but let's assume that that is what the historical record indicated could you still win and why i could because of the nature of this court in court this court has to i'm sorry petitioner has to satisfy a high burden to identify a particular rule that the absence of which kansas law would constitute a violation of a deeply rooted rule and that simply doesn't exist based upon the very generalities that we've talked about today seems it by its nature if the principle is as justice kagan suggests hypothetically if it's historically established that you cannot punish people who don't know the difference between right and it certainly sounds like something that is rooted in the conscience and it would be ranked as fundamental well i think what the what and i don't mean to fight the hypothetical or but my understanding of the history is that what has been dealt with throughout our time is how to resolve and handle mental illness within the criminal capability system and what this court's decision arizona versus clarke said is that there is no  fundamental going to get it exactly i mean it is and it is a nightmare trying to figure out exact standards i agree with but my question which i just hope you would clarify because it's stumbling on it imagine t shoots and kills smith the nd defendant shoots and kills germs the st defendant thinks that smith is a dog the nd defendant knows it to person  thinks the dog told him to do it ok what's the difference so i think that's the difference is criminal intent in the st situation because as i understand the hypothetical the individual intends to commit a crime against a human i'm a no no these are words you see i want it looking for something in terms of prim in a law or a legal purpose or human purpose or whatever that would treat the two why treat them differently one answer you've given you said it's so hard figure a car i'd agree to hard to get a definition that's going to be true in both cases you say criminal corporate criminal liability regulatory offenses i agree with you you have to carve out exceptions and that is not easy to do ok i've got those words but i'm looking for something different between the two defendants the dog there is the dog he told me to do it you're both crazy and why does kansas say one is guilty the other is not guilty so i think this court cases have a storage leak allowed legislative i don't care what the cases say at this moment i read cases on my law clerk as found force instances going back to brockton you know where it seems to be against you but i'm not interested in that i'm interested in a practical pragmatic purpose in why the law should treat those two cases differently same question i've just now repeated it three times and i am listening for your answer so and i apologize for not getting to the answer of your question i think the problem is that states of grappled with this and they have made different moral judgments as to who is morally responsible or not and this court's cases allow the state legislatures or federal congress to determine whether that person should be or should not be held dog the dog told me to do it differently but my question was why well i think it's a spectrum as to what the states believe is appropriate in delaware for example my understanding is that individual would not be convicted whereas in illinois that person could be convicted because they know that shooting a human being is legally wrong do you think general crouse that you could also eliminate consideration of the morrow understanding at sentencing in other words t ake the justice prior example and the dog told me to do it would it be unconstitutional if you were state did not have a procedure for considering that sentence and so you know obviously different question and i think it also engender a different test i think that that if you're considering what is available at the sentencing or whether it violates the constitution would implicate the th amendment well let's put the th amendment to the side that say that this isn't a capital case all right the state just have to have a way to consider at sentencing somebody is complete lack of understanding of the morality of his actions i don't believe that this court's cases would indicate that the states have to consider the morality  required as a matter of due process that some inquiry into mens rea is required in these cases and if so why and if not why yes yes i would except that carving out strict liability in the corporate liability context why and how do you reconcile that with our strict liability cases well i think what this court has done is historically guarded men's rights because that's what separates innocent conduct from criminal conduct and that's what kansas has done so you say you accept that there is a constitutional minimum floor below which the state states cannot proceed with respect to mental capacity and insanity you just suggest that you've met that standard so that the the nub of the argument then i think i would finally parse that a little bit i would i say admit that there is a mens rea a requirement with regard to how one would define insanity i don't believe that this court has identified a floor and suggested that there are variations of ways to hand that sure i understand except that states can define strict liability crimes i don't know if you can answer just discourse which is question which is could could you do away with the dennis rader defense could you simply say we in kansas believe if you kill someone regardless of the reason is if you've done the act you've committed murder period end of story no ministry of defense no nothing again i think that i much more difficult situation and i i think that would present a lot of additional problems for the state of kansas because of that this court's requirement of having a mens rea baseline could you  cross could you get rid of other defenses you know the rest could you get rid of that arrest offense so i think the same historical analysis that we have undergone with regard to the insanity test is something that we would have to look at i haven't done the individual on the search speaking countries that have ever said that killing another person is a strict liability offense knowing and kansas certainly doesn't do that on the history and the justice kagan was asking about i think your primary answer was that there's been no particular test that it has to work we rooted but isn't there a baseline that is historically rooted above which there been a variety of tasks that have been accepted by the states until it's just a sort of my were said until the end of the th century i think i would agree that the states have organized societies have consistently struggled with how to define and handle mental illness but i don't believe that there is have been a baseline that has been established beneath which the states could go well since the early th hundreds at least to the late th century in the united states didn't every state allow some form of a separate insanity defense at the guilt phase my understanding is that the treatment of insanity has varied within particular parameters for example some states would require an affirmative defense kansas for example didn't have a separate defense it but all separate and we just focus on my question all all the states had something separate from the mens rea approach at the guilt phase through the end of the th century isn't that correct as a matter of historical practice and you can still win the cases justice kagan noted but just to make sure we're on the scene and i'm not trying to skip the answer because i think kansas actually included it as part of the guilt phase it didn't have a separate insanity defense so for example it came in with a different definition when you're saying that all states had a separate insanity defense and seven hundred and ninety one i mean i don't believe i was saying that they have separate defense i think they handled it differently some of them defined it as an affirmative case regardless of whether the person claims to be mentally ill and the men's wear element would be consistent and intent to commit a crime yes so if the mens rea element traditionally incorporate it  a requirement of moral capability moral culpability that would apply across the board would it not not just the cases where the person says this is i have this lack of capacity due to mental illness but i have it due to political  brainwashing more religious fanaticism or any other reason that's correct just as miss that was that the traditional understanding of men's rights so i don't believe that was consistent with the historical understanding of mens rea and i think i also inconsistent with general criminal principles in which we don't look at the motive of the individual committing the crime would you agree that historically if you go back and you look at the cases you see this operating in two categories of cases one is for insane people and one is yes you know that you lack the moral capacity to understand what you're doing and therefore the criminal system ought to operate differently on your list and isn't that right so i would push back only in regard to whether or not it was a moral capability i think historically it's looked at a cognitive capability as to whether we could impute can take intent to commit a crime and i don't think that the moral capacity came in until the monotony era as to wh oligarch mr chief justice and may it please the court petitioner bears the burden of establishing that substantive due process principles override the kansas legislature's judgment in this case in adopting a mens rea a test of insanity and he has not carried that burden petitioner suggests that this court should recognize a theory of moral culpability and impose that uniformly across the states but the problem with that approach is both as a matter of history and contemporary practice there has been no agreement on the precise circumstances when mental illness should excuse criminal responsibility and i'd like to begin actually with the hypotheticals that just a sort of maior and justice briar brought up because i think that this actually illustrates that even in contemporary jurisdictions today there is a basic divide on one someone should be entitled to invoke the insanity defense and this gets to the difference between go wrong and moral wrong even in those actions that adopt a wrongfulness test the one the petition proposing there is differential treatment of defendants based on whether they could appreciate that their conduct violated the law and constitute a crime or not so imagine the defendant who hears voices that command him to kill in order to save the human race he knows that murder is a crime and that he be violating the law but he thinks the action is morally justified because of his mental illness in a substantial number of jurisdictions he would not be entitled to invoke the insanity defense and so to try to recognize or cure late at theory of moral culpability i think has has no roots in history and would actually raise the possibility of challenging state laws across the nation excuse me we've heard every state has a direct reference they were very different exceptions they all her different articulation there's never been a common one but all fifty of them and the essence of it is defined very simply as duress compulsion we give wide wide incredible latitude to the states to  y those circumstances i think what your adversary is is that making this go simply to intent and taking out so differentiation from the true lunatic who knows or trying to kill a person but the t v made him do it no volition whatsoever to conform his conduct to the wall no ability i think has recognized cognitive capacity as the way that you excuse criminal more sponsibility when you're assessing these difficult issues of how mental illness should function to excuse criminal culpability in a criminal justice system but that's where we differ but to because you  something's against the law and still not have the ability to conform your conduct but make a moral choice i could say if it's only a moral choice i could say i don't wish to do it because of my moral physically stop myself yes someone who has a saying can't even physically stop themselves and i thought it's a different sort of i absolutely agree it's a different test of insanity as this court has recognized jurisdictions have struggled with this across time and across different places and they've settled on different variants in trying to identify the precise circumstances but usually all someone totally outside the realm of criminal is program would years of just him is a test for insanity is not a test for insanity it's just the usual intent requirement that we apply to all defendants of the defendant doesn't have the intent to kill then the defendant is not culpable for that and it has nothing to do with his insanity or not and i think that the question is just a of my or is asking is is there something else that's necessary and we would leave a lot of flexibility to the states but that something else is something that relates particularly to unseen defendants to you know their ability to say because i have a mental illness there has to be something more so i don't think that there's something else here and if this court has recognized the guy posted history what petitioner needs to do is come forward with some kind of historical consensus establishing that there is a fundamental principle that kansas's mens rea approach is violating and actually the mens rea approach is itself one that was linked to the common law really articulations of insanity i was long understood that one of the ways you might try to identify that class of individuals who should be declared legally insane as a legal concept was to look at those who didn't have capacity to form criminal intent and i want to posit i mean let's just say i disagree with this that when i look back at the history i see lots of cases rex we are no billingham a number of others which make it quite clear i mean these are all people who had an intent to kill and what the common law was so yeah it was that even though they had the intent to kill there was going to be a further inquiry into how their insanity limited their moral understanding their understanding of wrongfulness of their act so if i think that that's kind of all over the history how do i find for you well i want to make clear that even if you thought this was a novel approach that didn't have roots in history of the court has many times recognized that outlier states are necessarily violating substantive due process and versus organ for example was a case where organ was the only state in the nation that required defendants to prove their insanity beyond a reasonable doubt so i don't think that that's cause alone to think that somehow this is violating a fundamental principle and i think actually looking at the jury instructions and some of the cases that you mentioned justice kagan like rex versus arnold the jury was instructed there that the defendant had to be shown to have no understanding or memory such that he could form no intent whatsoever that is a restrictive test of insanity it's focused on the same idea of co suggests that there was something more than a requirement that the defendant have be able to form an intent to kill the does up then when i don't think so because still bears the burden of trying to articulate with precision what that something more is and i think you can use your i mean what was the point of more cross or think the law has many many ways of interferen circumstances trying to separate out individuals for whom the criminal justice system is just not going to work in terms of preventing its outre the crime is one the wind blew my arm ok duress case you're looking to see could the could the defendant have done otherwise with insanity you're close to that often it's a question of could the defendant have done otherwise and even where or not it is is this individual so different from an ordinary individual that it just doesn't make sense to apply the law now if something like that is going on then my question if in fact he's the dog out why isn't it the dog told me to do it now that's the th time i've asked but i would like to know what you think about it so these are obviously difficult questions just as prior there ones that societies have wrestled with for centuries and trying to balance that the medical and moral and legal judgments that go into crafting an insanity rule this court has long recognized the states have principal responsibility to do that and i think that there are various ways states could decide that they want to distinguish between those two defendants for one thing that cognitive incapacity test which focuses on whether the individual thinks that the person he shot was a dog might be an easier inquiry for juries to undertake might be a more readily observable sign of mental illness and less likely to lead to confusion about what was actually in the defendant's mind and whether he was considering right versus wrong address diction i also think that looking at considerations of individual assuming we find that since the beginning of modern thought that there is an irreducible minimum of due process that requires how you define who is the insane that's a legal concept it's one that's yielded no single formulation and i think for this court to try to articulate a theory of moral culpability could throw into question state laws across the nation that are trying to make these difficult judgment motivation fueled by mental illness that explains defendants act and that has been a part of our history for centuries and that gets to the dog or the dog example it's completely arbitrary i don't know why if you think why one defendant who thinks that a dog he's shooting a dog versus another one who thinks the dog is ordering him to shoot someone else makes any difference whatsoever the st person is quoted and let out on the street and the nd is put in jail and maybe put to death the nd piece of this and so there's no safety net basically what kansas does actually is even more extreme because it limits the kind of mental illness evidence that can come in and it is essentially advocating and it never explains why are whether there is any light between the wild beast test and the mcnaughton one test but either way it is fundamentally different than what we have had historically and what forty eight jurisdictions retain nd i'd like to turn to my friend on the other side  notion that that there are some limits he actually doesn't suggest anything and if you look at page thirty nine and forty of their brief basically everything is up for grabs there can be no mens rea they can make everything strict liability dress self defense all of these defenses are on the line because according to them all that's required in kansas is a voluntary act and intentionality and finally turning back to history it's just not right to say that the right and wrong principle is a th century invention there is a wall of cases and authorities starting in the fifteen hundreds and continuing uninterrupted all the way through until eight hundred forty three dollars when mcnaughton was formed there's literally scores of cases here and in england applying the right and wrong principle to contrast that with the test that they suggest which is essentially the wild beast test that was invoked maybe two or three times it was a blip so history favors us and although due process is a rigorous burden for a petitioner to meet we satisfied here because they have taken something out of our fundamental criminal culpability what we believe is a country they have scraped it out and they are punishing the insane as a result if this court has no further questions we would ask you to please recall i wouldn't ask you a question a few things if you finished your your comments that you want to make in your reply brief you say that the states promise is that insanity was traditionally tied to a lack of women's right the insanity was traditionally tied to a lack of mens rea a true but men's way historically required precisely the moral blameworthiness that kansas law now excludes so that's your historical position that's half of are now do you reconcile that with the fact that men's rights does not vary from crime to crime so if that was the understanding of men's rights that would apply in every case and there would have to be moral blameworthiness in every case not just those  an evil person and he's go do evil things no justice alito because the only people that were that this has traditionally been applied to are the insane and maybe infants and that's what you're your arguing for is separate insanity defense and that was mcnaught but that's inconsistent with that the historical record as you yourself understand it which is that it was tied to men's right which is categorical applies in every single case where what is wrong with our position is that to the that wrong mr chief justice i want to answer this is simply it's not about what mental illness was or wasn't it's about how we treated insane people this narrow group of them i think everybody knows who they are when they are forced to decide it and it's about not punishing people who don't know right from wrong thank you thank you counsel the case is submitted