                 Cite as: 568 U. S. ____ (2012)           1

                    BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
          JOHN JOSEPH DELLING v. IDAHO
  ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

                   COURT OF IDAHO

           No. 11–1515. Decided November 26, 2012 


    The petition for a writ of certiorari is denied.
    JUSTICE BREYER, with whom JUSTICE GINSBURG and
JUSTICE SOTOMAYOR join, dissenting from denial of
certiorari.
    The law has long recognized that criminal punishment
is not appropriate for those who, by reason of insanity,
cannot tell right from wrong. See 4 W. Blackstone,
Commentaries on the Laws of England 24–25 (1769);
M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718
(1843). The insanity defense in nearly every State incor-
porates this principle. See Clark v. Arizona, 548 U. S.
735, 750–752 (2006) (noting that all but four States recog-
nize some version of the insanity defense); R. Bonnie, A.
Coughlin, J. Jeffries, & P. Low, Criminal Law 604 (3d ed.
2010) (same). If a defendant establishes an insanity de-
fense, he is not criminally liable, though the government
may confine him civilly for as long as he continues to pose
a danger to himself or to others by reason of his mental
illness. Jones v. United States, 463 U. S. 354, 370 (1983).
    Idaho and a few other States have modified this tra-
ditional insanity defense. Indeed, Idaho provides that
“[m]ental condition shall not be a defense to any charge of
criminal conduct.” Idaho Code §18–207(1) (Lexis 2004).
Another provision of the same statute provides, however,
that the above restriction is not “intended to prevent the
admission of expert evidence on the issue of any state of
mind which is an element of the offense.” §18–207(3). And
the Idaho courts have made clear that prosecutors are
“ ‘still required to prove beyond a reasonable doubt that a
2                    DELLING v. IDAHO

                     BREYER, J., dissenting

defendant had the mental capacity to form the necessary
intent.” ’ 152 Idaho 122, 125, 267 P. 3d 709, 712 (2011)
(quoting State v. Card, 121 Idaho 425, 430, 825 P. 2d 1081,
1086 (1991)). Thus, in Idaho, insanity remains relevant to
criminal liability, but only in respect to intent. Insanity
continues to have relevance at sentencing as well. A court
must “receiv[e]” evidence of mental condition at sentenc-
ing and, if mental condition proves to be a “significant
factor,” must consider a string of issues deemed relevant
to punishment, including, notably, “[t]he capacity of the
defendant to appreciate the wrongfulness of his conduct.”
Idaho Code §19–2523 (Lexis 2004). In addition, if the
court imposes a prison sentence on a person who “suffers
from any mental condition requiring treatment,” Idaho
law appears to mandate that “the defendant shall receive
treatment” in an appropriate facility. See §18–207(2).
   Still, the step that Idaho has taken is significant. As
that State’s courts recognize, it “ ‘may allow the conviction
of persons who may be insane by some former insanity
test or medical standard, but who nevertheless have the
ability to form intent and to control their actions.” ’ 152
Idaho, at 125, 267 P. 3d, at 712. That is, the difference
between the traditional insanity defense and Idaho’s
standard is that the latter permits the conviction of an
individual who knew what he was doing, but had no capac-
ity to understand that it was wrong.
   To illustrate with a very much simplified example:
Idaho law would distinguish the following two cases. Case
One: The defendant, due to insanity, believes that the
victim is a wolf. He shoots and kills the victim. Case Two:
The defendant, due to insanity, believes that a wolf, a
supernatural figure, has ordered him to kill the victim. In
Case One, the defendant does not know he has killed a
human being, and his insanity negates a mental element
necessary to commit the crime. Cf. Clark, supra, at 767–
768 (offering a similar example of how mental illness may
                 Cite as: 568 U. S. ____ (2012)           3

                    BREYER, J., dissenting

rebut mens rea). In Case Two, the defendant has inten-
tionally killed a victim whom he knows is a human be-
ing; he possesses the necessary mens rea. In both cases the
defendant is unable, due to insanity, to appreciate the true
quality of his act, and therefore unable to perceive that it
is wrong. But in Idaho, the defendant in Case One could
defend the charge by arguing that he lacked the mens rea,
whereas the defendant in Case Two would not be able to
raise a defense based on his mental illness. Much the
same outcome seems likely to occur in other States that
have modified the insanity defense in similar ways. For
example, in State v. Bethel, 276 Kan. 456, 459, 66 P. 3d
840, 843 (Kan. 2003), the prosecution and defense agreed
that under a similar Kansas statute, evidence that a
schizophrenic defendant’s “mental state precluded him
from understanding the difference between right and
wrong or from understanding the consequences of his
actions . . . does not constitute a defense to the charged
crimes.”
   The American Psychiatric Association tells us that
“severe mental illness can seriously impair a sufferer’s
ability rationally to appreciate the wrongfulness of con-
duct.” Brief for American Psychiatric Association et al. as
Amici Curiae 15. And other amici tell us that those seri-
ously mentally ill individuals often possess the kind of
mental disease that Case Two describes—that is to say,
they know that the victim is a human being, but due to
mental illness, such as a paranoid delusion, they wrongly
believe the act is justified. Brief for 52 Criminal Law and
Mental Health Law Professors 10. In view of these sub-
missions, I would grant the petition for certiorari to con-
sider whether Idaho’s modification of the insanity defense
is consistent with the Fourteenth Amendment’s Due Pro-
cess Clause.
