By Patrick Orr

WASHINGTON — It’s doubtful convicted killer John Delling will ever leave prison now that the U.S. Supreme Court has declined to hear his appeal to find Idaho’s lack of an insanity defense unconstitutional.

Any kind of release has always been unlikely for the 26-year-old Delling — who was in the throes of severe paranoid schizophrenia when he shot and killed two Idaho men and wound¬ed another on a multistate crime spree in 2007 — but the court’s refusal to consider whether Delling had a constitutional right to plead not guilty by reason of insanity puts an end to legal appeals in his criminal case.

The high court’s decision also means Idaho, Kansas, Montana and Utah can continue to ban the “insanity defense,” although a different defendant could decide to make the same appeal to the Supreme Court at a later date. It just can’t be Delling.

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor said they would have heard the case — but that group was one justice short, The Associated Press reported.

“I knew better than to get my hopes up,” said Gus Cahill, an Ada County public defender who represented Delling during his criminal case and argued in 2009 that Idaho’s lack of a insanity defense was unfair. “I don’t think we will ever get a better case (to challenge) it.”

Lawyers in Idaho trials can still offer evidence of mental illness for mitigation purposes, but not as a defense. Analysis of Delling’s mental illness was a major part of the presentence reports.

Cahill praised Stanford Law School professor Jeffrey L. Fisher, the American Psychiatric Association and other experts who worked on the appeal.

“The state appellate lawyers also ran with it and did as good a job as possible … everyone did a great job. It’s just very disappointing.”

Officials with the Constitutional Accountability Center agreed with Cahill and said they hope the court will eventually take on a case like Delling’s.

“The court should have taken Delling’s case to make sure that every state in the nation respects this long history of legal and moral tradition (of the insanity defense) and provides constitutionally mandated due process of law,” Chief Counsel Elizabeth Wydra said Monday.

Idaho Deputy Attorney General Kenneth Jorgensen said there have been at least three other similar appeals in other states that ban the insanity defense but the court has declined to hear those appeals as well.

The Idaho Supreme Court denied Delling’s appeal on the same issue in 2011, finding that Idaho’s lack of insanity defense did not violate the state and federal constitutions.

“In the absence of an insanity defense, Delling is still able to present a defense; it just takes a different form,” the Idaho Supreme Court said in 2011. “If the state cannot prove criminal intent beyond a reasonable doubt, a defendant, sane or not, will be found not guilty.”

John Delling’s lawyers, police, prosecutors and 4th District Judge Deborah Bail all agree that Delling’s mental illness led him to become a killer.

Bail also ruled in 2009 that Delling’s illness was so severe, and made Delling so dangerous to society, that he would never leave prison.

When she sentenced Delling in 2009, Bail said there was no doubt he had been in the grips of delusional thinking when he shot and killed David Boss and Bradley Morse. But the illness did not stop him from planning and causing “enormous destruction aimed at innocent people.”

“His illness is at such an extraordinary level, it is unfair to place society at any risk,” Bail said in 2009. “‘Penalty’ is a useless concept when you are talking about someone (this) gravely ill. I don’t believe (Delling) can appreciate the impact of his conduct at the time of the shootings.”

Delling is held in the Idaho State Correctional Institution, the medium security prison south of Boise. He is housed in a dormitory, which means he has frequent interaction with other inmates and staff. He does not have any disciplinary infractions. Prison officials declined to provide specific information on how Delling is being treated, citing federal health rules.

The Idaho Legislature banned the insanity defense amid the national outcry over the acquittal of would-be assassin John Hinckley Jr., who shot President Ronald Reagan in 1981.

Cahill said in 2009 the insanity defense would have been a plausible way to explain to a jury how someone diagnosed with severe paranoid schizophrenia might not have been in control of himself when he traveled 6,500 miles around the West to shoot three acquaintances.

Cahill said Delling was incapable of forming “mens rea.” That’s Latin for “guilty mind” and the legal term for malice aforethought, which means the intentions behind a wrongful act and the knowledge that the act is illegal.

In a dissent to the U.S. Supreme Court’s decision issued Monday, Breyer said he felt the justices should consider whether Idaho’s modification of the insanity defense is consistent with the 14th Ammendment’s “due process” clause.

Breyer pointed out that Idaho’s standard for the insanity defense differs from that in other states in that Idaho permits the conviction of someone “who knew what he was doing but had no capacity to understand it was wrong.”

If the Supreme Court heard the appeal and found that Idaho’s lack of a standard insanity defense was unconstitutional, Delling’s conviction would have been thrown out.

It would have then been up to Ada and Latah county prosecutors to recharge Delling and a new trial would have to be scheduled.