Are they crazy? Right to insanity denied in ID, KS, MT and UT

In some places in the United States of America, the right to prove insanity is not available.

WASHINGTON, DC, November 29, 2012 - Four states and the Supreme Court must be crazy.  Idaho, Kansas, Montana and Utah do not allow the insanity defense in criminal prosecutions.  Most recently, the Supreme Court refused to hear a case on appeal from Idaho, leaving a conviction to stand, where the convicted killer claimed he was denied due process of law because he was not allowed to plead the insanity defense.

John Delling killed two people and injured a third in 2007 in Idaho.  He pled guilty.  There was ample evidence brought out during his trial attesting to his long-standing battles with acute paranoid schizophrenia.  He claimed he was in the midst of severe delusions when he killed the two men and wounded a third. 

Here is part of Idaho’s law on the insanity defense:  “… mental condition shall not be a defense to any charge of criminal conduct.”

There was also evidence that Delling knew what he was doing when he committed the murders.  He had four more names on a list of planned victims.  He injured Jacob Thompson in Tucson, Arizonia, by approaching Thompson’s truck and shooting him in the face, shoulder and arm.  He then flew to Boise, Idaho, rented a car, and waited for Bradley Morse.  He shot and killed Morse and then took Morse’s body and dumped it in a nearby pond.  Delling then went to Moscow, Idaho, knocked on David Boss’ door, and shot and killed Boss when the door opened.  All three victims were former high school classmates of Delling.

The insanity defense in a criminal law context means you did not have the capacity to know right from wrong.  The defense’s background, from 1843, is embodied in what has become known as the McNaughton Rule.  In England, McNaughton shot and killed the secretary of the British Prime Minister, believing the secretary was conspiring against him.  The criminal prosecution ended in an acquittal “by reason of insanity” and McNaughton was institutionalized for the rest of his life.  The rule of the defense from that case provides that if, at the time of committing the (criminal) act, the accused was laboring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.

Following the assassination attempt on the President Reagan, in 1984 Congress passed the Comprehensive Crime Control Act, which established the federal standard for proving insanity as a defense to a criminal act:  The Defendant must prove, by clear and convincing evidence that at the time of the commission of the acts… the Defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.

Elizabeth Wydra, the chief attorney at the Constitutional Accountability Center, in Washington, D.C., in a prepared statement released after the Supreme Court refused to hear the case, said  “courts dating from ancient Greece have held that the integrity of the criminal justice system requires an insanity defense… the court should have taken Mr. Delling’s case to make sure that every state in the nation respects this long history of legal and moral tradition and provides constitutionally-mandated due process of law.”

The issue here is not whether Mr. Delling was insane, literally or legally. It is that he was denied the right to use that defense. 

In my early years as an attorney, I defended individuals charged with crimes.  On numerous occasions I used the insanity defense.  Some of my former clients were convicted, others not based on “insanity.”  I cannot imagine how this defense is not available in the above mentioned four states.

I called David Smethers, Esquire, of Boise, Idaho and asked him about Idaho’s law.  He told me that  a defense attorney, albeit a Defendant, cannot mention or argue that they were “insane.”  He told me that the only shot at approaching this defense in Idaho is to argue and attempt to prove that the Defendant did not have mens rea, meaning they were incapable of forming the intent to commit a crime.  David said that defense NEVER works.  Interestingly, Idaho does have civil commitment procedures where someone judged mentally incompetent can be locked away, forever, or until they are “cured.”  Sending someone to such a facility though does not happen as a result of a criminal prosecution.  Hypocritical?

The Supreme Court refused to hear this case on a 5-4 vote, following typical “party” lines.  Justices Breyer, Sotomayor and Ginsburg wrote the Dissenting Opinion.

The first line of the Dissent:  The law has long recognized that criminal punishment is not appropriate for those who, by reason of insanity, cannot tell right from wrong.

I practice civil law, dealing with compensation for wrongfully injured people.  I gave up my practice of criminal law in the 1980’s.  I do not like criminals.  I believe people who commit crimes should be punished.  I think there are way too many who feign “insanity” to “get off” once they get caught committing a crime.  It is easy to say “he must be nuts, look what he did…”

John Hinckley is the best example of the system “working” I can provide.  From all accounts, he truly was “insane” and he thereafter received the appropriate treatment for his assassination attempt on President Reagan.  I loathe that he has been allowed to walk free, even for one second. 

There clearly are those unfortunate folks whose suffer from mental disease and who commit crimes.  They must be treated differently.  They can be committed after a finding that they committed the act. 

I am without words to understand how the RIGHT to try to prove insanity is not available in some places in the United States of America.  From ancient Greece, to mother England, to “modern day, clearer-thinking” USA legal minds, the insanity defense remains.  Except not in Idaho, Kansas, Montana or Utah.  Unbelievable.  Not in the Supreme Court of the United States.


Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.





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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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