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


Recommended Citation

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.