Practical Considerations In Raising a Mental Disease or Defect Defense

by Kelson Bohnet, Senior Assistant Capital Defender

Recently, the Death Penalty Defense Unit researched the practical realities of commitment for clients who are found not guilty because of mental disease or defect (MDD). We have gathered some limited, though valuable, information about what a successful MDD defense means for clients. Here, we want to share that information so that attorneys can have honest and productive discussions with clients, and so that attorneys can make informed choices on the wisdom of using MDD at trial.

MDD is Kansas’ version of an insanity defense. It is an affirmative defense that can apply when “the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged.” K.S.A. 21-5209. That includes the mental states of “intentionally,” “knowingly,” or “recklessly.” See K.S.A. 21-5202(a); State v. McLinn, 307 Kan. 307, 318-23 (2018). It is one of the narrowest mental state defenses in the country, but the United States Supreme Court, unfortunately, upheld MDD on the grounds that other forms of mental illness can still have a role in mitigating the sentence. See Kahler v. Kansas, 140 S. Ct. 1021, 1030-32 (2020). Winning an acquittal in an MDD case is extremely difficult for many reasons.

Even when MDD is a legitimate option, the client can still face serious problems. Someone who is found not guilty by MDD does not get to go home at the end of the trial. Instead, these clients are committed to a “state security hospital or an appropriate secure facility” until they are no longer “likely to cause harm to self or others.” K.S.A. 22-3428. There is no time limit on how long a person can be committed after a not-guilty-by-MDD verdict. Even if the client is released from a state security hospital, they still can be held in a less secure facility, or be put onto a stringent form of conditional release under the supervision of a community mental health center. The process of securing step-downs or release is extremely deliberate and complicated.

When an attorney starts a conversation about MDD, there should always be a discussion about what “winning” and being committed means. Until now, what the commitment and release standards looked like in practice was a complete mystery to most. Attorneys only had anecdotes to rely on. Now, there is some limited data to shed light on these issues.

The Kansas Department for Aging and Disability Services (KDADS) handles MDD commitments. That department provided the Death Penalty Defense Unit with data from Larned State Hospital and Osawatomie State Hospital, the two secure state facilities where all MDD commitments begin. Here are the highlights:

• From 1973 through 2022, there have been 298 total MDD commitments to those facilities.

• During that same period, only 191 MDD clients had any kind of status change in their commitment. That is about 64% of the total.

• At Larned specifically, the first MDD admission was in 1973. The first MDD status change was not until 1986, when there were 15 people who had been committed.

• At Osawatomie, which began accepting MDD commitments in 1992, only 3 of the 105 people committed there for that reason have ever had a status change.

• Notably, a status change is not the same as a discharge or release. It could be a simple transfer between the hospitals or a step-down to a less secure facility.

• Because of protected health information and data collection issues, there is, unfortunately, no specific information available for the average length of commitment or average time to conditional release. Generally, KDADS cannot connect admission dates and status changes for individual cases.

Even though this data is relatively limited, there are two important takeaways.

First, a huge percentage of MDD commitments – at least a third and perhaps many more – have remained in the state’s most secure hospital facilities and have never left. This means we cannot tell our clients that, in practice, they will definitely be released someday. This is especially true when we consider that, even for those who do leave these facilities, it may just be for transfer or a different level of commitment.

Second, data from the two hospitals suggests that clients who do make it to conditional or full release do not get there quickly. It took 13 years for Larned to change anyone’s status after its first admission. There is no guarantee that the first status change went to the first person admitted 13 years prior. Moreover, virtually no one ever gets a status change upon entering Osawatomie. When considering all of the other caveats discussed above, it is very likely that many not-guilty-by-MDD clients are confined to Larned or Osawatomie for multiple decades before there is any change in their circumstances. 

Here is what this means, in practical terms: you should not present an MDD defense at trial unless your client is already looking at a life or life-equivalent sentence. It is always tempting to play our “best card” for trial, and we do occasionally have clients whose mental condition and conduct fit the narrow definition of MDD. Sometimes, prosecutors may even agree to MDD findings and verdicts in obvious cases. However, this small statistical glimpse shows a genuine danger that not-guilty-by-MDD can lead to more confinement than a long prison sentence. This is especially true for clients with intractable conditions that cannot be improved with medication or therapy.

You should always use mental illness as mitigation, and there are ways to use mental condition evidence at trial outside the confines of MDD. However, next time MDD seems like a legitimate option, think very carefully about the nature of the case and the needs and wishes of your client. Until the law changes in Kansas, we must consider that a finding of not guilty because of MDD will simply result in a life sentence by another name.