The problem with pleading "religious insanity" in court (and how to resolve it)

A fascinating new paper lays out the constitutional problems with pleas of religious insanity

This newsletter is free, but it’s only able to sustain itself due to the support I receive from a small percentage of regular readers. Would you please consider becoming one of those supporters? You can use the button below to subscribe to Substack or use my usual Patreon page!

---

In 2005, a man named Amir Kando went to the back stairwell of his apartment building and repeatedly stabbed his neighbor Jason Burley with a knife. The unprompted attack nearly killed Burley, and Kando was soon charged with, among other things, first degree murder.

Kando was eventually declared by a trial judge to be “guilty but mentally ill”—meaning he may have had a mental illness, but it was not so profound that he didn’t know what he was doing. He was sentenced to 15 years in prison.

When the case reached an appellate court, however, that ruling was reversed.

Kando was found “not guilty by reason of insanity.”

The court’s majority said that, based on earlier testimony, the “defendant [Kando] would not have been able to comprehend the criminality of his conduct at the time of the offense.” They knew he was not of sound mind when he began attacking his victim.

How did they know that? How did they know Kondo was, as they wrote, under the “grip of a psychotic delusion”?

It was obvious to them. Kondo kept saying he was acting on God’s wishes and trying to eliminate Satan (who was Burley) “in order to bring peace to the world” for the next 1,000 years. And isn’t that completely weird?!

A knife on a Bible (image via Adobe Spark)

Here’s how they actually put it:

… No one suggested an alternative motive for defendant's attack other than to eliminate Satan pursuant to a commandment from God. No one suggested or imputed any other design or motive to explain defendant's actions other than his delusion, namely that the victim was Satan whom he was determined to kill or incarcerate for 1,000 years.

Accordingly defendant's ability to appreciate the criminality of his conduct must be viewed from the perspective of this delusion, that whatever he did was to implement a divine command to attack the victim whom he envisioned as a demon or Satan.

Thus, from the outset there is no reason to think that defendant in carrying out this command would necessarily know that his divine commission of destroying a demon, or Satan, would be unlawful. And it is from this perspective that we must review the expert testimony given on behalf of defendant and the four factors upon which the trial judge relied in rejecting the testimony of those experts.

To put that another way, Kondo believed he was trying to kill Satan. To him, it was a divine command. His religious delusions were so strong, the judges implied, that there’s “no reason” Kondo would have known his actions were illegal.

But there’s a serious problem with that logic. It doesn’t take a genius to realize the logical hole in that situation.

L. Joe Dunman, an assistant professor at the University of Louisville Louis D. Brandeis School of Law, recently published a fascinating paper about that case and the broader problem with “testing religious insanity.”

Dunman writes that when courts accept an insanity plea, they’re saying a suspect holds beliefs that are not true. (That’s how delusions work, after all!) But when those beliefs are religious, the courts are effectively taking a position on religion, something they’re constitutionally forbidden from doing.

To declare that a religiously delusional criminal defendant is insane requires a court to declare, as a matter of fact and law, that their religious beliefs are untrue. The First Amendment prohibits this.

It’s a fair point! If someone says God spoke to him and told him to commit a crime, we might be tempted to call that insanity… but which part of that is delusional?

A lot of Christians say God speaks to them. That’s not weird in Christian circles. Nor is it weird, in that sense, for Christians to act on whatever they think God said to them, whether it’s fundamentalist Christians saying God told them to marry their eventual spouse (despite not dating for very long) or a pastor accepting a job in another state because God assured him it was part of The Plan. Those are fairly standard in Christian citcles even if atheists might say all of that is delusional.

But if millions of people believe God speaks to them personally, does it really count as a delusion? Not according to some definitions! So if someone hears God, then acts on it, and if that action is criminal, is it really fair to call that a delusion (or insanity)?

That’s the dilemma.

As Dunman writes, “for several reasons, most legal definitions of ‘delusion’ lose their usefulness when applied to beliefs commonly considered ‘religious.’” He brings it back to the Kando example:

Amir Kando, for example, claimed to be in constant communication with God and Jesus and at constant war with Satan, who God told him to “lock up.” Though few people might believe that God speaks directly to Amir Kando, many people believe that God speaks directly to them. And a majority of Americans still believe in the devil as God’s supernatural nemesis. Why would Kando’s thematically-common religious statements not meet sanity’s acceptability threshold?

Dunman spends a lot of time looking at the ways the legal system has tried to define “delusion” and whether something is “objectively false.” but it gets really complicated really quickly. That’s because the legal system doesn’t have any way to “prove” someone’s objectively wrong when they cite their faith.

For example, a person who believes themselves to be pregnant but is incapable of pregnancy… expresses a delusional belief, because the pregnancy would defy physical reality. By contrast, a pregnant person who believes their pregnancy to be the result of “an immaculate conception with God” is not delusional—legally speaking—because “incontrovertible proof that the belief is false does not exist.”

The same game can be played with the Eucharist. Catholics believe consecrated wafers are literally the body of Christ. Is that true? Of course not! Similarly, no scientific lab would detect a difference between regular wine and communion wine that’s supposed to be the literal blood of Christ. But is it a delusion to believe both of those things? Arguably no, from a legal perspective, because millions and millions of people believe them. Richard Dawkins may call God a “delusion”—and he’s right—but judges don’t have the same sort of leeway.

We don’t want government officials taking sides on religion, but the legal system is forcing judges to make that call in these situations.

When a court accepts a religious insanity plea, it’s taking the position that the religious beliefs of the suspect are not true. Those judges “have no choice but to declare certain religious beliefs false in order to find someone like Kando delusional and therefore insane,” Dunman argues.

It’s not like the judges will get called out on it, especially when they’re imprisoning people who say God told them to commit murder, since those actions are beyond the pale. Of course those are religious delusions, we might think, even if we’re religious.

But it’s not like we can tell judges to just stop, either. Just consider the slippery slope. If we tell judges they can’t make those calls, then what’s stopping every criminal defense lawyer from saying their clients (who struggle with mental illness) are simply obeying God’s orders?

Dunman lays out the problem in a nutshell:

… the law cannot objectively tell religion from not-religion, nor can it objectively tell religion from insane delusion. Neither can psychiatrists, on whom the law often relies. When criminal defendants claim insanity because they suffer from religious delusions, courts are left conducting de facto religious verity tests, declaring insane defendants who are delusional because they believe religious things that judges, juries, or psychiatrists assume to be false.

It seems like there’s no solution here. Right now, judges can just say certain religious beliefs are false, even though they have no business making that call, but preventing judges from saying that creates a loophole large enough for a monster truck to drive through.

Is there any way to resolve the problem? Can judges make these calls while still following the Constitution and the rights of the accused (who may very well be delusional)?

One answer, Dunman suggests, is a waiver.

Just like defendants can waive their right to a jury trial or their right to remain silent, they can simply let a judge know that they understand that pleading insanity requires the court to say their religious beliefs aren’t true. (It’s a little more complicated than that in the paper, but that’s the gist of it.)

After asking the defendant a series of questions to establish that he knows what he’s doing, the judge could lay it out bluntly:

“Under the First Amendment, you have the right to religious freedom. Normally, that means that no judge or jury may test the truth or falsity of any religious beliefs you hold. Do you understand that?” The trial judge should then ask if defendant has discussed this right with their counsel, and whether the defendant understands that this right is implicated by the religious nature of their insanity plea. This part is crucial. The defendant must be made aware that, in order to determine whether they were insane at the time the crime was committed, the court must determine that they suffered from incapacitating delusions, and that delusions are beliefs that are false. Therefore, because the defendant’s alleged delusions have a religious character, a successful insanity plea will require the defendant’s religious beliefs to be declared false.

By doing this, the defendants would be giving the courts permission to declare their religious beliefs delusional, creating a constitutional bypass of sorts. It’s a potential solution to a problem that’s gone under the radar for far too long. It would also create some new concerns, though. As you might expect, conservative Christians—the people who have hijacked the federal judiciary for the past few decades—would likely push back against any declaration that their beliefs are false, even if it’s for the sake of resolving an intractable problem.

Dunman’s paper is scheduled to appear in the Wayne Law Review in 2025. I found it pretty damn interesting. You might too.

---