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Wednesday, January 06, 2010

Terrorism Trials and the Constitutionality of the Religious Insanity Defense

    Will any terrorism defendants raise a religious insanity defense?  If so, courts may have to squarely address the constitutionality of such a defense.  I have written about this in the past, and have a forthcoming article in the Journal of Law and Religion with more discussion of the problem that will hopefully come out just in time to be completely mooted by exciting developments in the coming year.  But I can make revisions right up to press time!
    Here’s the issue: In most jurisdictions, a defendant states an insanity defense if he can show that by reason of mental disease or defect, he was unable at the time of the act to appreciate its nature or its wrongfulness.  Here, for example, is the Model Instruction from the Fifth Circuit: “The defendant was insane as the law defines that term only if, as a result of a severe mental disease or defect, the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.”  “Mental disease or defect” can include an “insane delusion,” which is a specific belief, usually temporarily held, that motivated the crime.  Here’s how Texas defines it: “the belief of a state of supposed facts that do not exist, and which no rational person would believe.” Knight v. Edwards, 264 S.W.2d at 695.
    The interesting constitutional and theological problem arises because defendants who kill for religious reasons have regularly asserted their religious beliefs as insane delusions that prevented them from appreciating the wrongfulness of their conduct, and many courts have allowed that defense.  Not every court has gone as far as Benjamin Cardozo’s “deific decree” theory– which in its strongest form holds that a belief that God mandated a killing is per se an insane delusion– but in just about every case (more on the one outlier in a moment) courts allow defendants to make the argument.  Here, for example, is a recent comment from the Tenth Circuit, explaining what a habeas petitioner would have needed to believe in order to state a claim:

    If, however, his delusions went further and he thought that he had a mandate from God or President Clinton to kill Mr. Casey, or if he believed that Casey was not really a human being and that killing him would only remove an evil spirit, then he would be legally insane.

Diestel v. Hines, 506 F.3d 1249, 1274 (10th Cir. 2007).  (This guy’s delusion didn’t go far enough, said the court, because he simply believed, falsely, that his victim was a serial rapist who deserved to die.)
    Here’s why this is an interesting constitutional problem: there’s also an important strand of First Amendment law that says that courts are not allowed to find that a person’s religious beliefs are false.  The leading case is called Ballard, from 1944, authored by Douglas, and you see its echoes in the fact that you can’t get your money back from a faith healer whose expensive laying-on-of-hands didn’t cure your cancer, or in the careful calibration of what Scientologists can and cannot say about what their “e-meters” can do for you.  Well, what about insane delusions?  Is there any constitutional problem with a court making a finding that a defendant’s religious beliefs are false such that no rational person would believe them?  More after the fold.
    American courts have had quite a bit of practice handling religious insanity cases, and, as I’ve noted, almost always allow the defense.  One possible reason for this is that virtually every case has involved a fundamentalist Christian parent who kills their child (or children) in some sort of Biblical re-enactment.  Here are some recent examples, some of which you might remember: Andrea Yates (killed children because she believed they were pure and would go to heaven, but that she was a bad person and so if she continued raising them they would be damned); Deanna Laney (killed children because she believed that they were pure and would go to heaven, and that the Apocalypse was upon us and she was being called to serve Jesus in his battle with the devil); Theresa Archie (killed daughter because she thought daughter was worshiping the devil and she had a Biblical duty to kill her); Brian Kelley (killed daughter as sacrifice to God because daughter was pure like Isaac); Robert Blair (same); Jacques Robidoux (killed son at God’s command to teach his wife to be obedient).
    All of these defendants raised insanity defenses based on their religious beliefs.  The Archie and Kelley cases generated published opinions affirming that religious beliefs can be insane delusions.  Check the opinions out for yourselves– they’re at 2002 WL 927610 (the Tennessee court didn’t publish it) and 875 So. 2d 336 (the Arkansas court did).   Robidoux, the last one, came out the other way, however, and held that religious beliefs cannot be the basis for an insanity defense.  Robidoux hadn’t raised insanity at trial– his defense was that he didn’t intentionally kill his son, he just intentionally deprived him of food, but he didn’t have the mens rea for murder because he believed that God– since it was his order, after all– would miraculously provide for him, at least long enough for his disobedient wife to learn her lesson.
    But Massachusetts allows defendants to raise mitigation claims in the first instance on appeal in murder cases, so Robidoux argued that his lawyers were ineffective for not going with insanity, and that his conviction ought at least be reduced to second degree murder, given that the evidence of the content of his beliefs was uncontroverted.  The Supreme Judicial Court disagreed, in language that is the only example I have seen of a court construing religious insanity defenses as a Ballard issue, and taking them seriously as a constitutional problem:

     Although Robidoux held unique religious beliefs, that alone is not sufficient to demonstrate a mental       defect. [Ballard cite.] There is no evidence from lay persons or otherwise that Robidoux had a prior mental illness, or was acting on the basis of anything other than a sincerely held religious belief, and the “bizarre or inexplicable nature of a crime alone does not provide a foundation for an insanity defense.

That’s at Commonwealth v. Robidoux, 877 N.E.2d 232, 248 (Mass. 2007), and it’s worth reading, because it might be a good template for prosecutors in terrorism cases who want to oppose religious insanity defenses.  And you’d bet that they’re going to want to sooner or later.  Good candidates include Nidal Hassan (Fort Hood shooter),  Abdulhakim Mujahid Muhammad, nee Carlos Bledsoe (Little Rock, Ark. shooter), Adam Gadahn (the “American Taliban”) if he’s ever caught, or the Detroit underwear bomber, or whoever.  The defense is simple: “I acted under the belief that God ordered this action, and that I would be martyred, etc., etc.  I now renounce that belief and see it as an insane delusion.  I deserve treatment, not punishment.”
    Now you can see (whether or not you’d agree with) the politics of not opposing the religious insanity defense when it’s Deanna Laney, whose whole life revolved around (and whose brother-in-law was pastor of) the First Assembly of God, one of the biggest churches in Tyler, Texas.  But the politics are different for Nidal Hassan and Islamic fundamentalism-linked defendants. 
     I predict some serious internal debate, though, before such a decision is made.  Think about it: If on the one hand the defense is precluded, then some defendants will see their best or only defense barred– an incongruous result after Boumediene held that the rule of law applies to terrorism detainees.  That could be a public relations problem– and more generally a problem for the international perception of Boumediene and Obama as turning the page on an era of lawlessness and contempt for the rule of law.  On the other hand, if the defense is allowed, then some defendants might be acquitted– but only in virtue of judicial findings that one of the core tenets of Islam (martyrdom for holy warriors) is an insane delusion.  That result will come with its own set of public relations problems.
    (By the way, you could avoid this issue by abolishing the “knowledge of wrongfulness” prong of the insanity defense altogether, which you may constitutionally do, per Clark v. Arizona, 548 U.S. 745.)

Posted by Caleb Mason on January 6, 2010 at 05:07 PM | Permalink


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If, supposing that the precedent from Ballard, et al, it is settled the courts can not rule on the falsity of religious beliefs, then is an affirmative defense based on religous principles possible?

For example, could Khalid Mohammad present a defense based upon the solid Koranic instructions to make war upon infidels? Sura 9:20, etc?

If his religion's falseness can not be addressed / ruled on, then its tenets are as valid as any others - in court. And as the Koran (and the true Hadith)are unquestionable in Islam (being the uncreated word of Allah, always existing, and delivered uncorrupted by the 'messenger' and 'final prophet' Mohammad, whose life - the Hadith - is to be emulated by all Muslims), then a Koranic direction to slay unbelievers must be "true"? Or at least not "false".

So, if you actually live by your religion and commit crimes in violation of secular criminal law that, which in accordance with your religion's tenets is superseded by "Allah's" law, are you "religiously insane" or "not guilty by reason of religion"?

Obviously, some (or all) religions are false. One may be true.

We ignore the religous motivation and religious ideology of our jihadist opponents at our peril. A free, secular Constitutional republic that, in blissful defiance of reality, tolerates its sworn enemies and affords them its protection will be destroyed.

Some matters are best handled under the laws and customs of war rather than in American courts.

Posted by: Major Mike | Jan 12, 2010 11:22:28 AM

Anon, great question. I talk about this issue in the paper-- to the extent that I can, because there's not much to go on. Douglas's opinion is Douglas at his gnomic best, and courts have applied the doctrine in the variety of procedural postures. You have: criminal case where the defendant wants to say his belief was false (Robidoux); criminal case where the defendant wants to say his belief was true (Ballard itself); civil regulatory case where the government wants to say the belief was false (the DC Circuit's Scientology case); private party civil case where one party wants to say the other side's belief was false (faith-healer cases). One rough answer would be that the rationale is the same as that underlying taxpayer standing in Establishment Clause cases: the injury accrues to the community at large, so individual waiver is not appropriate. For example, as I have argued in the context of the Laney case, it's not necessarily a victory for Laney's church that she was acquitted by reason of insanity, on the basis of beliefs that were found by a court (that terminology is important, because the court has to enter the judgment) to be insane delusions, but that reflected a relatively mainstream millenarianism (you recall the Left Behind novels). Sure, you draw the distinction between "There's an imminent war coming between God and the devil, all the saved will go up to heaven, the rest of us will do battle, etc., etc." and "I better kill my kids right now," but the specific theological claim underlying both Laney's and Andrea Yates's decisions to kill their kids was also utterly mainstream: children (and, depending on sect, who have been saved/baptized) will go up to heaven if they die before doing any horrible stuff. I will post again on this topic shortly. Hope that helps; restated if you think of the First Amendment interests of the religious community at large, the "no waiver" rule makes more sense.

Thanks for reading!

Posted by: Caleb Mason | Jan 7, 2010 5:02:17 PM

Very interesting question. There is at least one obvious difference bewteen the First Amendment cases and the criminal cases. I take it that in the free speech context, the govt (or some other party to the litigation) is attempting to enlist the court in restricting or burdening the religious speech/beliefs of a putatively sincere person. E.g., imposing civil damages on a faith healer for fraud. In the criminal context, the erstwhile believer is him- or herself renouncing a formerly-held belief as delusional. Hence, there is no imposition or coercion by the state which burdens the defendant's exercise of religion. That doesn't resolve the public relations problem, as you put it, but doesn't it help to explain why the two types of cases are treated differently?

Posted by: anon | Jan 7, 2010 2:07:32 PM


Posted by: Attorney | Jan 6, 2010 8:31:29 PM

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