Texas Tech Law Review Shell Document

SOME VERY MODEST REFLECTIONS ON EXCUSING CRIMINAL WRONGDOERS Joshua Dressler* I. II. III. IV.

JUSTIFICATIONS AND EXCUSES: MUCH ADO ABOUT NOTHING? ...... 247 EXCUSES: BROAD OR NARROW? FULL OR PARTIAL? ....................... 251 THE INSANITY DEFENSE: MUCH ADO ABOUT VERY LITTLE? .......... 256 CONCLUSION ..................................................................................... 258

I am honored to participate in this conference organized by my friend Arnold Loewy. Arnold brought together an impressive group of scholars to talk about a topic very dear to my heart and my past scholarship. A myriad of factors explain my longtime fascination with excuse defenses, the emotions of blame (forgiveness, mercy, guilt and, compassion), and the question of what these emotions may have to do with justice. Such factors certainly include my father‟s lifelong work in the field of criminal justice and my Judaism. I. JUSTIFICATIONS AND EXCUSES: MUCH ADO ABOUT NOTHING? Is there really a difference between justifications and excuses, or did we academics make it up? Nobody, I assume, seriously believes that we made up the distinctions between justification and excuse defenses. After all, the words “justification” and “excuse” are part of the English language and are not synonyms. Surely there is a difference between conduct we approve of, or at least tolerate, and conduct that we condemn, even when we decide not to blame or punish the actor for the otherwise condemnable action. I assume, however, that we are really considering whether people involved in creating and interpreting the law care about the real distinctions. Kent Greenawalt wrote that, although distinctions exist, “Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way.”1 Focusing on Greenawalt‟s modifier—“fully systematic way”—I agree with him, admittedly more so than in earlier years. I maintain my view, however, that criminal codes and courts applying those codes should be more sensitive to the distinctions than they were three or four decades ago, * Frank R. Strong Chair in Law, Michael E. Moritz College of Law, The Ohio State University. This Article is based on the author‟s participation in the 2009 Criminal Law Symposium: Excuses and the Criminal Law, held at Texas Tech University School of Law on April 3, 2009. The author thanks Arnold Loewy for inviting him to give the keynote address at the symposium. This Article is a slightly revised version of his address and, as a result, is written in a somewhat more informal manner. 1. Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897, 1898 (1984).

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when justification/excuse scholarship first began to flourish and even more sensitive than they are now. And, I decidedly disagree with Mitchell Berman, who wrote that he is “frankly skeptical” of whether scholars should employ the justification/excuse distinction “for purposes of marking legal, as distinct from moral, categories.”2 Of course, I have a great deal at stake here; I would not like to think that much of my scholarship over the past three decades has been of no significance except to get me invited to conferences such as this one. Humor me, therefore, while I offer thanks and a few observations. To begin, thanks are due to two people in particular. First, most would agree that George Fletcher deserves substantial credit for bringing the concepts of justification and excuse to the intellectual forefront in American criminal scholarship.3 Second, Paul Robinson also deserves enormous credit for his early involvement in the area and for his influential categorization of defenses first set out in the Columbia Law Review and later in his lawyers‟ treatise.4 Of course, we know—at least those of us who have steeped ourselves in or “obsessed”5 over the distinctions—that crediting Fletcher with bringing the topic to the forefront hardly means that we all agree with his taxonomy. Indeed, Fletcher and Robinson do not agree on everything. Consider their classic and wonderful debate on the question of whether one is justified if, in the words of Fletcher, a person performs “the right deed for the wrong reason.”6 I disagree, along with others, with Fletcher‟s and Robinson‟s taxonomy in one regard or another.7 Still, the point is that we should care about the distinctions. Indeed, anyone familiar with my casebook knows that I believe we should sensitize our students to the concepts and show them why, as future criminal lawyers, judges, or lawmakers, they should try to draw the “justification versus excuse” distinction—if not fully systematically, then at least with some degree of care.8 Why should our mostly pragmatic students and future lawyers care about these merely moral questions relating to justification and excuse? One example is the provocation defense. Many years ago, I expressed concern that some aspects of the defense can only be explained in justificatory terms, and yet,

2. Mitchell Berman, Justification and Excuse, Law and Morality, 53 DUKE L.J. 1, 6 (2003). 3. Fletcher is currently the Cardozo Professor of Jurisprudence at Columbia University School of Law. He has written about the concepts of justification and excuse for more than three decades while teaching at UCLA School of Law and Columbia. 4. See 1 PAUL H. ROBINSON, CRIMINAL LAW DEFENSES § 11 (1984); Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 COLUM. L. REV. 199, 203-42 (1982). 5. Berman, supra note 2, at 1 (abstract to the article). 6. George P. Fletcher, The Right Deed for the Wrong Reason, 23 UCLA L. REV. 293, 293 (1975). Fletcher‟s article is a response to Paul H. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266 (1975). 7. See, e.g., Joshua Dressler, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 UCLA L. REV. 61 (1984); Greenawalt, supra note 1. 8. See JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 474-541 (4th ed. 2007).

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other features of the defense are excuse-based.9 Consider Pennsylvania‟s manslaughter statute. It provides that the provocation defense is only available if the actor “is acting under a sudden and intense passion resulting from serious provocation by: (1) the individual killed; or (2) another whom the actor endeavors to kill . . . .”10 I doubt Pennsylvania lawmakers realize that they framed a defense that, while excuse-based in its requirement of intense passion, is also justification-based because the defense does not apply unless the actor tries to kill the “right” person (i.e., the provoker rather than an innocent third party).11 I suppose that one might try to develop some acceptable explanation for this apparent contradiction, but I am inclined to believe that Pennsylvania legislators accepted the common law “misdirected retaliation” doctrine, oblivious of the fact that it undermines the generally accepted excuse-based rationale of the defense. In this regard, I have my students consider a father who observes a reckless, perhaps drunk, driver run over his daughter. The driver slams into a tree, which temporarily disables him. The father, in great passion, seeks to kill the driver, only to be confronted by a Good Samaritan bystander who blocks his way. So, the father intentionally kills the bystander. In Pennsylvania, the father would be denied a jury instruction on manslaughter because he killed the wrong person. His understandable impassioned condition is ignored. Perhaps this should be the law (although I don‟t think so), but surely we should want a coherent doctrine. A defense that simultaneously focuses on a provoked person‟s passion-caused excusable loss of self-control and on the decedent‟s wrongdoing that justifies a response is not as coherent as it should be and, not inconsequentially, apt to result in injustice. And, as this example suggests, the justification/excuse distinction has practical significance; the father is not entitled to a jury instruction on manslaughter under justification analysis, but is entitled to one if the partial defense is understood to be excuse-based. Therefore, in states that lack a clear rule on the subject, a lawyer can help bring greater clarity and coherence to the criminal law. Likewise, I am convinced that the rule disallowing the duress defense in homicide cases is largely the result of confusion by courts and legislators regarding the nature of the defense. Both English and American cases, when defending the traditional no-defense rule, typically do so on justificatory grounds. Consider the language of the California Supreme Court when it recently stated that “[i]f duress is recognized as a defense to the killing of innocents, then a street or prison gang need only create an internal reign of terror and murder can be justified . . . .”12 Use of the word “justified” was not a judicial slip of the tongue. The court went on to quote Professor Wayne 9. Joshua Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 J. CRIM. L. & CRIMINOLOGY 421, 438-43 (1982). 10. 18 PA. CONS. STAT. ANN. § 2503(a) (West 1998). 11. See id. 12. People v. Anderson, 50 P.3d 368, 374 (Cal. 2002).

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LaFave‟s influential treatise: “[T]he basic rationale behind allowing the defense of duress . . . „is that, for reasons of social policy, it is better that the defendant, faced with a choice of evils, choose to do the lesser evil . . . in order to avoid the greater evil . . . .‟”13 But surely if the duress defense is at its core an excuse defense, as most scholars accept, then the court‟s justification-based reasoning and categorical rejection of the defense in murder cases is off point. And, to the extent that LaFave‟s treatise led the court down the wrong path or merely added credibility to its ruling, we ought to want more, not fewer, efforts by scholars to clear the muddy waters.14 Even if all of this is so, there remains a lingering question: Assuming that the distinctions we draw between justifications and excuses are not figments of our academic minds, and that these distinctions ought to matter to the legal profession, is it too much to hope that legislators will pay some attention to these distinctions? Although some judges do pay serious attention, legislators have not demonstrated similar sensitivity.15 So, I make a modest and hopefully realistic suggestion: It would be good—and not beyond all hope—if legislators, in drafting future penal codes, would take at least one small step beyond the Model Penal Code (MPC). The MPC includes article 3, General Principles of Justification, in which all of the justification defenses are catalogued, but there is not an equivalent General Principles of Excuse. Instead, excuse defenses in the MPC are interspersed throughout article 2 (General Principles of Liability, which also includes nonexcuse provisions) and article 4 (Responsibility). Penal codes could easily place excuses in their own article, even if this means that related failure-ofproof claims are separated from their cousins.16 As a second step, complicity rules in a penal code should distinguish between justifications and excuses in a way that they currently do not: by providing that an accomplice may be convicted of an offense in which she assisted if the primary party is acquitted on the ground of an excuse defense, but not if the perpetrator is acquitted on the ground of a justification defense. If

13. 14.

Id. at 371 (quoting WAYNE R. LAFAVE, CRIMINAL LAW § 5.3 (3d ed. 2000)). I note approvingly that LaFave has changed his description of duress. WAYNE R. LAFAVE, CRIMINAL LAW § 9.7(a) (4th ed. 2003). (“One who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime may, under some circumstances, be excused for doing what he did . . . .” (emphasis added)). 15. See, e.g., United States v. Lopez, 662 F. Supp. 1083 (N.D. Cal. 1987). In Lopez, a male defendant helped his girlfriend (Lopez) escape from prison. Id. at 1084-85. The court considered whether Lopez‟s defense sounded in justification (necessity) or excuse (duress); the court reasoned that an accomplice could only assert the principal‟s claim if, but only if, the claim sounded in justification. Id. at 1086-87. 16. For example, the MPC currently provides that a mistake of law may sometimes “negative the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense” (and, thus, negate the required mens rea of an offense), while also stating that a true mistake of law claim “is a defense to a prosecution when [the defendant] acts in reasonable reliance upon an official statement of the law [from specified sources], afterward determined to be invalid or erroneous . . . .” See § 2.04(1)(a), (3)(b). I see no harm in separating these provisions, the first of which would go in a “General Principles,” “Mens Rea,” or “State of Mind” article, and the second in an “Excuses” article.


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this distinction were drawn in penal codes, practicing lawyers and judges would have more motivation to take the concepts of justification and excuse more seriously.17 Finally, as long as we retain general verdicts and prohibit juries from finding defendants “not guilty by reason of justification” or “not guilty by reason of excuse,” there will be a lack of clarity in some jury verdicts of acquittal. Lawyers can further cloud the picture by making arguments to the jury that purposely muddy the waters. To illustrate, a lawyer claiming selfdefense in a questionable battered woman case might say to the jury, “Who can blame this woman for her decision to kill her abuser while he slept?” The jurors might acquit with those excuse-sounding words in mind, even as they interpret the justification defense of self-protection. But, keep in mind that when battered women have killed in non-confrontational circumstances, their modern advocates have sought to have lawyers assert self-defense rather than diminished capacity or temporary insanity. These advocates intuitively understand the difference between saying that a woman has acted properly— that it is her right to kill in such circumstances—and claiming that the killing is wrong, but that she is blameless for her actions. If lay people understand this basic point, the law can certainly make limited efforts to draw the distinction in our criminal codes and, more so, in the judicial opinions interpreting those statutes. II. EXCUSES: BROAD OR NARROW? FULL OR PARTIAL? Should excuses be construed broadly or narrowly? In an article I wrote two decades ago, I characterized my thoughts on this subject as tentative.18 In that article, which was part of a conference commemorating the twenty-fifth anniversary of the MPC, I wrote that “our passion for justice and our tendency to express compassion can cause us to excuse people who do not deserve it.”19 I claimed that the MPC approach to excuses goes “as far as [the law] should, and, in the case of duress, possibly too far in exculpating wrongdoers.”20 I also opined that “guilt feelings by wrongdoers are good.”21 (Some conference participants told me that this statement sounded “very Jewish”; another attendee 17. The complicity reform I suggest would require well-crafted jury instructions in the rare case in which the principal raises both a justification and an excuse defense. The jury would need to be told that if it acquits the principal on self-defense grounds (as defined in a separate jury instruction), for example, it must also acquit the defendant-accomplice. (I put aside the question here of whether the accomplice must be aware of and motivated by the principal‟s justificatory claim. See supra text accompanying note 6.) The instruction would further provide that if it finds the principal not guilty, for example on duress grounds, then it may convict the defendant-accomplice if it finds, beyond a reasonable doubt, all of the required elements of the latter‟s accomplice liability (as otherwise defined). 18. Joshua Dressler, Reflections on Excusing Wrongdoers: Moral Theory, New Excuses and the Model Penal Code, 19 RUTGERS L.J. 671, 673 (1988). 19. Id. at 674. 20. Id. at 675. 21. Id. at 689.

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said it was “very Catholic.”) I expressed my fear that allowing the law to excuse people too easily—allowing too many people, in essence, to go away without feeling guilty—was both unwise morally and psychologically.22 But, as evidence of my tentativeness, I also wrote: “If we must err, it is better to excuse too many rather than too few.”23 A few years later my friend David Dolinko, while over generously placing me in the same league with some major league retributivist scholars, declared me—and them—guilty of the following: [A] certain moral smugness, a self-satisfied belief that we can have our moral cake and eat it too—we can impose afflictive sanctions on criminal offenders while feeling (unlike utilitarian . . . theorists) that what we are doing is no regrettable though necessary evil but instead a positive good: respecting persons, doing justice, and generally living up to the most high-minded and 24 Kantian ethical standards.

A lot has happened in the world since Dolinko and I wrote our essays. Some of my views have evolved. I no longer believe that the MPC duress defense goes too far; indeed, I now believe it does not go far enough. For example, it should apply (but presently does not) to non-human threats that might cause a person of reasonable firmness to commit a crime.25 More fundamentally, in the original article I linked the emotion of compassion to the concept of excuse.26 Yet, Herbert Morris, one of those smug retributivists David Dolinko named and perhaps the most influential retributivist thinker of our time, wrote me and, in his typical non-smug, classy, and gentle way, questioned that link. He convinced me that excuses are about justice, not compassion. One year later, I wrote: “I do not now believe that the link between compassion and excusing is as strong as [I] suggested.”27 I continued, “Ultimately, it is a sense of justice, not a feeling of compassion, that causes us to excuse certain wrongdoers.”28 Indeed, it is not a sense of justice at all—it is justice itself that requires us to excuse some wrongdoers. As Sandy Kadish has put it so well: To blame a person is to express a moral criticism, and if the person‟s action does not deserve criticism, blaming him is a kind of falsehood and is, to the

22. Id. 23. Id. 24. David Dolinko, Three Mistakes of Retributivism, 39 UCLA L. REV. 1623, 1625 (1992). 25. Joshua Dressler, Duress, in OXFORD HANDBOOK ON THE PHILOSOPHY OF CRIMINAL LAW (David Dolinko & John Deigh eds.) (forthcoming 2010). 26. See Dressler, supra note 18, at 682-89. 27. Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331, 1361 n.175 (1989). 28. Id.


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extent the person is injured by being blamed, unjust to him. It is this feature 29 of our everyday moral practices that lies behind the law‟s excuses.

Of course, the rub is in deciding what justice requires. I generally stand by what I wrote in 1988. The best explanation or theory of excuse— descriptively and normatively—is the choice theory of excuses.30 Compared to the competing causal and character theories of excuse, it is the narrowest excusing principle.31 I will not take time here to develop that theory fully; it is enough to say that people should not be excused for their wrongdoing unless they can show that, at the time of the offense, they substantially lacked the capacity or fair opportunity to understand the relevant facts surrounding their conduct, appreciate that their conduct violates society‟s mores, or conform their conduct to the dictates of the law.32 When I contemplate whether we should construe excuses broadly or narrowly, I also find myself considering whether the criminal law should abolish existing excuses and/or recognize new ones. Here are some basic observations in this regard. First, there are few excuses recognized in the criminal law—far fewer than justification defenses. Second, in non-MPC jurisdictions, the few excuses that do exist are very narrowly drafted. So if any change is in order, it should not be to narrow the field further. Third, I see no good reason for creating new excuse defenses, such as brainwashing or severe economic deprivation (i.e., rotten social background), to name two excuse defenses that have been proposed over the years.33 These defenses in particular bring us too close to the causation theory of excuses, a theory that can too easily bring us to “the cul-de-sac of . . . determinism.”34 I would, however, expand the mistake-of-law doctrine to incorporate all reasonable mistakes of law, even if they are the result of reasonable reliance on the advice of, say, a private attorney. And, as I have suggested, I prefer the MPC defense of duress to the narrower common law version and would broaden it further. All of this is consistent with the narrow choice theory of excuse. But, there is another problem. The all or nothing aspect of verdicts— guilty or not guilty—and the fact that excuses generally are all or nothing in nature, forces juries to disregard factors that may merit consideration. When I 29. Sanford H. Kadish, Excusing Crime, 75 CAL. L. REV. 257, 264 (1987). 30. See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW § 17.03 (5th ed. 2009) (reviewing the competing theories of excuse). 31. See id. 32. See id. 33. E.g., Richard Delgado, Ascription of Criminal States of Mind: Toward a Defense Theory for the Coercively Persuaded (“Brainwashed”) Defendant, 63 MINN. L. REV. 1 (1978); Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 LAW & INEQUALITY 9 (1985). I have disagreed with Delgado‟s pro-brainwashing defense. See Joshua Dressler, Professor Delgado’s “Brainwashing” Defense: Courting a Determinist Legal System, 63 MINN. L. REV. 355 (1979). I have also expressed my opposition to the social deprivation excuse. See Dressler, supra note 18, at 713-15. 34. GEORGE FLETCHER, RETHINKING CRIMINAL LAW 801 (1978).

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wrote my keep-excuses-narrow essay, judges generally had broad discretion in sentencing. They could take into consideration factors that, although they might not merit total excuse at the guilt phase, nonetheless supported mitigation. Blame, like everything else, is not an all-or-nothing concept. It is one thing to say that people should be held responsible for their actions and quite another to say that they deserve the same punishment as someone else who has committed the same crime. In sentencing, judges have historically served as an imperfect escape hatch: we could leave excuse law strict and solve some of the problems of justice at sentencing. That is largely no more. In many jurisdictions, judges have far less sentencing discretion than they did decades ago. In our legitimate effort to rid the system of racial, ethnic, and class sentencing disparities, we also stripped judges of their authority to fit the punishment to the criminal as well as the crime—or, if you will, to fit punishment to the crime, properly understood to include justice-related factors not fully incorporated in the guilt phase. Factors that defense lawyers might have brought up at the sentencing phase of trials must now be offered at trial or lost. Admittedly, some of these factors might be compassion-based or mercy-based, rather than justice-based. But, if defense lawyers may no longer turn to the judge at sentencing and develop most of these factors, then it is the lawyers‟ duty, in zealously representing their clients, to raise claims wherever they can, including at trial. I am inclined not only to advocate making the small legislative expansions in excuse law I previously noted but also to urge defense lawyers to urge judges to interpret the existing excuses as broadly as reasonably possible.35 Of course, if defense lawyers push to have their clients excused, some people may be fully excused when jurors, if given the opportunity, would have said something less black-and-white, such as, “Look, you are to blame. You are responsible. But, you are not as much to blame as other people who commit the same crime. Thus, we would have preferred to find a middle ground, but we weren‟t given the opportunity.” Indeed, the binary on-or-off switch we use prevents juries from more closely calibrating justice and moral desert to punishment. Juries are generally powerless to send a less-than-all but more-than-nothing message. (Well, they may not be entirely powerless. 35. Contrary to common perceptions, juries are not necessarily more lenient than judges. See Andrew D. Leipold, Why are Federal Judges So Acquittal Prone?, 83 WASH. U. L.Q. 151, 164 n.48 (2005). In the federal system, from 1989 through 2002, conviction rates by judges were anywhere from fifteen to thirty percent below that of juries. See id. at 165. This disparity has increased from earlier years. See id. at 164-65. Professor Leipold provided an intriguing and possible explanation for the recent increase in federal judicial leniency—the promulgation of the Federal Sentencing Guidelines in the 1980s. See id. at 156-57. The Guidelines, as originally drafted, dramatically reduced judicial sentencing discretion and, in some cases, required judges to sentence defendants far more harshly than justice (as those judges conceived of it) required. See id. at 157. It is possible that judges sometimes acquit defendants when they believe that a conviction would result in undue sentencing harshness. See id. at 200-18. This explanation may be wrong and, in any case, is not necessarily linked to excuse claims, but it does suggest that judges may be more prone to find excuses when the likely sentence for conviction would be disproportionate to the defendant‟s moral culpability for the crime.


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Consider one perhaps apocryphal case reported to me: The host of a party slept with the wife of one of his guests while the very drunk husband was sprawled unconscious nearby. When hubby came to his senses and observed the adultery in action, he pulled a knife and threatened the host. The host grabbed a nearby gun and killed the husband. He argued self-defense at trial. The trial lasted just two hours, and when the jury did not return a verdict after several hours, the judge asked the bailiff to see what was going on. The bailiff entered the jury room to find the jurors playing poker. The foreman later explained to the judge, “We found self-defense in just six minutes, but we figured the defendant was also to blame, so we decided to make him sweat a little.” Ah, the conscience of the community.) Juries are largely helpless to calibrate punishment to moral desert because we generally do not recognize partial excuses. We do so indirectly with criminal homicide by grading the crime in terms of degrees and/or lesser offenses, and then recognizing partial defenses (provocation and, less often, diminished capacity) to murder that reduce the degree of the offense or lower the offense itself. We seem prepared in this limited area to find a middle ground, so why not recognize more partial excuses? That is a matter worthy of discussion. Here is where Professor Stephen Morse, another member of Dolinko‟s Smugness Hall of Shame, enters the picture. At one time, Morse opposed recognition of both partial defenses to murder—provocation and diminished capacity (although he approved the mens rea variant of the latter doctrine).36 Recently, however, Morse changed his mind in an important regard.37 Although he continues to oppose the partial excuse of provocation, partially on feminist grounds, he now says that “a generic partial responsibility excuse is a moral imperative for a just criminal law that attempts never to punish defendants more than they deserve.”38 Morse, therefore, has proposed a generic partial excuse in the form of an alternative verdict, “Guilty but Partially Responsible” (GPR), which would be available with all crimes and would result in lesser punishment.39 Morse‟s GPR is not a partial excuse; the defendant is still convicted of the indicted offense, but punishment is automatically reduced by formula.40 Nonetheless, this gets very close to where we ought to go. 36. See Stephen J. Morse, Undiminished Confusion in Diminished Capacity, 75 J. CRIM. L. & CRIMINOLOGY 1, 28-36 (1984). I have consistently favored these partial excuses. See Joshua Dressler, Reaffirming the Moral Legitimacy of the Doctrine of Diminished Capacity: A Brief Reply to Professor Morse, 75 J. CRIM. L. & CRIMINOLOGY 953 (1984); Joshua Dressler, Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject, 86 MINN. L. REV. 959 (2002). 37. Compare Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 OHIO ST. J. CRIM. L. 289 (2003) [hereinafter Morse, Diminished Rationality] (arguing for recognition of a generic partial responsibility excuse), with Morse, supra note 36, at 28-34 (1984) (opposing recognition of both partial defenses to murder). 38. Morse, Diminished Rationality, supra note 37, at 290. 39. Id. at 299-307. 40. Id. at 304.

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Morse‟s GPR verdict depends on the jury finding that the defendant suffered from reduced rationality and that this reduced rationality “substantially affected the defendant‟s criminal conduct.”41 His GPR verdict would not be available in the case of no-fair-opportunity excuses (or what Kadish describes as “deficient but reasonable actions”), such as mistake-of-law and duress.42 I advocate recognition of a diminished-rationality/diminished-opportunity verdict as another step in the right direction. III. THE INSANITY DEFENSE: MUCH ADO ABOUT VERY LITTLE? Discussion of the insanity defense is often much ado about very little. True, there are fascinating aspects of the defense. For example, there are hawk and dove opponents of the defense.43 That is, some political conservatives and some liberals are insanity-defense abolitionists.44 Some liberals believe that the criminal law unfairly denies an excuse to persons who do not meet the medical model of mental illness but who suffer from conditions as criminogenic as mental disease.45 Like cases should be treated alike. Therefore, they say, if we are unwilling to excuse a rotten-social-background defendant, we should not excuse the insane defendant.46 Others, of course, would abolish the insanity defense because it exculpates people who, they believe, deserve punishment.47 Christopher Slobogin made the case for a so-called integrationist alternative to the insanity defense: he would abolish the defense but retain the role of mental illness in the law when it is “relevant in assessing culpability only as warranted by general criminal law doctrines concerning mens rea, self-defense, and duress.”48 Additionally, there is immense debate regarding the proper scope of the defense if it is going to be recognized. Should the defense be limited to cognitive disabilities or include volitional incapacity? Should the criminal law revive the previously discredited product test of insanity?49 In jurisdictions 41. Id. at 300. 42. Kadish, supra note 29, at 259. One might argue that coercion not only creates hard choices but also results in temporary diminished rationality. This would bring duress within Morse‟s verdict, but I do not find such an argument persuasive; the coerced actor‟s conduct, while wrong, would strike most people as perfectly rational. 43. See NORVAL MORRIS & GORDON HAWKINS, THE HONEST POLITICIAN‟S GUIDE TO CRIME CONTROL 176 (The University of Chicago Press 1970). 44. See id. 45. Id. at 179. 46. Id. 47. See id. at 179-80. 48. Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 VA. L. REV. 1199, 1200 (2000); see also Christopher Slobogin, The Integrationist Alternative to the Insanity Defense: Reflections on the Exculpatory Scope of Mental Illness in the Wake of the Andrea Yates Trial, 30 AM. J. CRIM. L. 315, 315 (2003) (defending the M’Naghten test, the Mens Rea Alternative, and the Integrationist Alternative to the insanity defense). 49. Durham v. United States, 214 F.2d 862, 873-74 (D.C. Cir. 1954) (holding that an accused is not criminally responsible if her criminal conduct was a but-for result of the actor‟s mental illness), overruled by


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applying the majority M’Naghten test,50 should they narrow the test to just one of the two prongs, and if so, which?51 Further, should the prong(s) be stated in terms of “knowledge” or the deeper concept of “appreciation” of right-fromwrong and/or the nature-and-quality of the defendant‟s actions? Finally, regarding the right-from-wrong test, are we talking about legal or moral rightfrom-wrong?52 This line of questioning could go on and on. All of these questions create good classroom dialogue, although I have not found that to be the case in my classroom. Nonetheless, once we agree that there should be an insanity defense of some sort, which is certainly the prevailing scholarly and lay view, the debate over how we should frame the test strikes me as much ado about very, very little. Do jurors really apply one test differently than another? There is some empirical research that suggests that jurors tend to focus on the same factors (e.g., the defendant‟s history of mental illness, her ability to recall the events relating to the offense, the degree of remorse expressed, and cognitive and volitional capacities) regardless of the legal standard used.53 Jurors reach the same result regardless of the insanity test.54 Furthermore, one social scientist has provocatively concluded that the insanity test that comes closest to jurors‟ own sense of justice is one that courts have never applied.55 That test, Judge Bazelon‟s “justly responsible” test, simply asks whether “at the time of his unlawful conduct [the defendant‟s] mental or emotional processes or behavior controls were impaired to such an extent that he cannot justly be held responsible for his act.”56 It may even be enough to tell jurors to use their own best judgment—no test at all—to decide whether they should hold the defendant responsible.57 This latter suggestion perhaps strikes us, as lawyers and scholars, as unwise. How can we leave it, simply, to the unstructured best judgment of juries? Perhaps, however, we have enough experience with enough tests of insanity to decide that we cannot do a better job than jurors, left to their own United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972). 50. M‟Naghten‟s Case, (1843) 8 Eng. Rep. 718 (H.L.) (holding that a person is insane if, at the time of the crime, he or she was laboring under such a defect of reason, stemming from a disease of the mind that: (1) he or she did not know the nature and quality of the act that he or she was doing; or (2) if he or she did know it, he or she did know that the action was wrong); see Brawner, 471 F.2d at 979. 51. See Clark v. Arizona, 548 U.S. 735, 749-52 (2006) (explaining that among the twenty-eight states that apply the M’Naghten test in some form, eleven have adopted only one of the two prongs). 52. See United States v. Segna, 555 F.2d 226, 232 (9th Cir. 1977) (describing and summarizing the “classic debate” in this regard). 53. James R.P. Ogloff, A Comparison of Insanity Defense Standards on Jury Decision Making, 15 LAW & HUM. BEHAV. 509, 513 (1991). 54. Norman J. Finkel, Insanity Defenses: From the Jurors’ Perspective, 9 LAW & PSYCHOL. REV. 77, 79 (1985). 55. Ogloff, supra note 53, at 527. 56. United States v. Brawner, 471 F.2d 969, 1032 (D.C. Cir. 1972) (Bazelon, J., concurring in part and dissenting in part) (emphasis removed). 57. See Norman J. Finkel & Sharon F. Handel, How Jurors Construe “Insanity,” 13 LAW & HUM. BEHAV. 41, 43-44 (1989).

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devices, to reach a common sense community judgment of moral agency. Nonetheless, I hesitate to reach that conclusion. Instead, why not apply Bazelon‟s test, which does the same job pretty well? The test satisfies the standards set out by the Supreme Court of Rhode Island, which wrote: Any legal standard designed to assess criminal responsibility must satisfy several objectives. It must accurately reflect the underlying principles of substantive law and community values while comporting with the realities of scientific understanding. The standard must be phrased in order to make fully available to the jury such psychiatric information as medical science has to offer regarding the individual defendant, yet be comprehensible to the experts, lawyers, and jury alike. Finally, the definition must preserve to the trier of facts, be it judge or jury, its full authority to render a final 58 decision.

Judge Bazelon was a brilliant jurist. We are not blessed by enough judges of his intellect and sensitivity on our courts today. It may be time, nearly four decades too late, to follow his advice. IV. CONCLUSION These are my brief reflections on some important topics. I look forward to hearing the views of others. I trust their observations will further the dialogue and inform my own thoughts in the future.

58.

State v. Johnson, 399 A.2d 469, 471 (R.I. 1979).