This Comment addresses the present gap in insanity-defense laws
created by the defense’s abolition and offers an Eighth Amendment
based remedy. Part I reviews the history and evolution of the insanity
defense in Anglo-American law. It then describes how four states
have statutorily abolished the defense. It concludes with a discussion
of Clark v. Arizona, the Court’s most recent decision on the
constitutionality of the insanity defense. Part II turns to the Eighth
Amendment, examining its historical understanding and the
contemporary evolving-standards-of-decency analysis, through which
the Court assesses the constitutionality of modern-day punishments.
Part II concludes with a discussion of Robinson v. California and Powell v. Texas, two non-death-penalty Eighth Amendment decisions
that illustrate contrasting approaches to Eighth Amendment
Part III examines the Court’s recent Eighth
Amendment death-penalty jurisprudence, focusing on two decisions
involving mentally deficient offenders, Roper v. Simmons and Atkins v.
Virginia, where the Court expanded the Eighth Amendment to
protect two groups—minors and the mentally retarded—against the
imposition of capital punishment. Part IV argues that these recent
precedents are sufficiently analogous, legally and factually, to the
insane-offender context; therefore, the Court should apply the rules
and reasoning of these decisions to the issue of punishing the insane.
Part V then applies the Roper and Atkins Eighth Amendment analyses
to the issue of criminal punishment for otherwise insane offenders,
the end result of abolishing the insanity defense. Part V concludes
that under these new precedents, abolition of the insanity defense
results in unconstitutionally excessive punishments, in violation of
the Eighth Amendment to the Constitution. Accordingly, this
Comment concludes that the safeguard against this constitutional
violation—the affirmative insanity defense—merits constitutional
LeBlanc, Stephen M. "Cruelty to the Mentally ILL: An Eighth Amendment Challenge to the Abolition of the Insanity Defense." American University Law Review 56, no. 5 (June 2007):1281-1328.