Diminished capacity: A moral and legal conundrum

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Capacity:

A Moral and Legal Conundrum Stephen J. Morse*

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The diminished capacity doctrine allows a mentally abnormal but legally sane defendant to have his or her mental abnormality taken into account in assessing criminal liability.’ Depending on the jurisdiction, diminished capacity operates either to negate an element of the crime charged, thereby exonerating the defendant of that charge, or formally to reduce the degree of crime for which the defendant may be convicted and punished even if all the formal elements of the originally charged offense were satisfied. These two variants of diminished capacity will be referred to respectively as the “mens rea” and “partial responsibility” approaches.’ This contribution will analyze the theoretical basis and development of diminished capacity doctrine with special reference to the law in the State of California, where the doctrine is especially fully, if not coherently, developed. I shall contend that although the doctrine appears to express intuitively held notions about moral and legal responsibility, it is neither morally necessary nor socially desirable. In the alternative, it will be claimed that if moral intuitions

Editor’s Note: This paper, as well as the following papers by Herbert Fingarette,

Micnael Moore, and Ronald Roesch, was presented at the Third International Symposium on Law and Psychiatry held in Vancouver, British Columbia, Canada in May of 1979, under the auspices of the British Columbia Forensic Psychiatric Services Commission, and with the sponsorship of the Faculty of Law, University of British Columbia and the Canadian Federal Department of Justice. The next few issues of the Journal will also feature select proceedings of the Symposium. *Professor of Law, University of Southern California Law Center and Professor of Psychiatry and Behavioral Sciences, University of Southern California School of Medicine. I have benefitted from years of discussion about diminished capacity with my colleagues, Michael H. Shapiro and Michael S. Moore. In addition, I should like to thank Professors Moore, Shapiro and Alan Schwartz, and Professor Herbert Fingarette of the Philosophy Department, University of California, Santa Barbara, for their helpful comments on this paper. Finally, the Law Library and my research assistant, Ms. Joan Mussoff, provided invaluable assistance. 1Annot., Mental or Emotional Condition as Dimiriishing Responsibility for Crime, 22 A.L.R. 3d 1288 (1968). The mental abnormality may be caused by mental disorder, mental defect, intoxication, or trauma. See generally, Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of A Doomed Marriage, 71 COLUM. L.. REV. 827 (1977); Dix, Psychological Abnormality as

a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility, and the Like, 62 J. CRIM. L., CRIMINOL & POLICE SCI. 313 (1971); Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other than the Defense of insanity, 26 SYR. I_. REV. 1051, 1054-1071 (1975); Sparks, ‘Diminished Responsibility’ in Theory and Practice, 27 MOD. I_. REV. 9 (1964); Wootton, Diminished Responsibility: A Layman’s View. 75 I_. Q. REV. 224 (1960); Recent Developments: Diminished Capacity - Recent Decisions and Analytical Approach, 30 VAND. I_. REV. 213 (1977).

‘See text accompanying notes 18-79 and 80-89 infru. Similar but somewhat different categorizations by Arenella, supra note 1, and Recent Developments, supra note 1.

are proposed

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about its necessity are too strong to abandon the doctrine, in responsibility decided upon by the jury is the appropriate to adopt.3 I. The Rationale for Diminished

a formal reduction model for the law

Capacity

Before turning to an examination of the forms and development of the doctrine, let us examine the rationale for diminished capacity, especially as it relates to the insanity defense. Although there are many tests for insanity, all have the same fundamental function: to identify those offenders who appear so disordered, so crazy, that it seems unjust to apply the usual rules of criminal responsibility to them.4 The law presumes that most persons are sane and able to control their behavior within reasonable limits.’ When normal persons violate the criminal law, it is assumed their behavior is the product of free choice and it is therefore just and appropriate to punish the offender. By contrast, it is belived that if an offender is sufficiently crazy and the craziness seems related to the criminal conduct, the offense must have been the product of the disorder, not free choice, and thus it is unjust and inappropriate to punish the disordered offender. None of the usual justifications adduced for criminal punishment retribution, deterrence, incapacitation, rehabilitation, education - would be well served, it is argued, by sentencing a severely disordered offender to prison.6 Rather, mental treatment seems warranted, to be applied in a closed hospital setting if the offender’s dangerousness appears to require incapacitation.’ Deciding which offenders are sufficiently crazy to warrant the application of special rules of legal responsibility is a difficult social, moral and legal decision. Support and respect for the criminal law require that only those persons who are truly incapable of obeying the law should be singled out as not responsible. While it is unjust and socially undesirable to punish one who is not responsible, it is equally unjust and undesirable not to punish one who is. Similarly, general deterrence does not demand that nonresponsible persons be punished, but it would be severely undermined if substantial numbers of arguably responsible persons were acquitted by reason of insanity. Thus, the insanity defense, in aThis contribution will not essay a comprehensive overview of the doctrine of diminished capacity in all its permutations in different jurisdictions. Rather it shall use illustrative examples to analyze the basic foundation and structure of the doctrine and to suggest how it should be rationalized. 4MODEL PENAL CODE 5 4.01, Comments, 156 (Tent. Draft No. 4, 1955). “[T]he problem is to discriminate between the cases where a punitivecorrectional disposition is appropriate and those in which a medical-custodial disposition is the only kind that the law should allow.” Id. Morse, Crazy Behavior, Morals and Science: An Analysis of Mental Health Law. 5 1 S. CAL. L. REV. 527, 640 (1978). See general&, Durham v. U.S. 214 F.2d 862 (D.C. Cir. 1954). ‘31A C.J.S. Evidence p 147 (1964); People v. Silver, 33 N.Y. 2d 475, 310 N.E. 2d 520. 354 N.Y.S. 2d 915 (1974); CAL. PENAL CODE 0 1016 (6) (Deering 1979). 6J. Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170-77 (Hafner Press ed. 1948). ‘E.g., State of California, SPECIAL COMMISSIONS ON INSANITY AND CRIMINAL OFFENDERS, FIRST REPORT 21 (July 7, 1962). “Upon finding that a defendant is not criminally responsible for the act with which he is charged, an inquiry immediately ought to be made whether he is a substantial present risk to the safety of the public. The inquiry should be squarely directed to the question of whether the defendant is dangerous. If he appears to be dangerous, he should be committed to secure custody.” Id.

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ail its permutations, seeks to distinguish the few extremely crazy offenders who are not truly blameworthy because they allegedly lack free will from the vast mass of offenders whose crimes are the product of choice and who therefore deserve to be punished. Various insanity defenses emphasize different aspects of the effect of mental disorder upon behavior and permit exculpation of offenders with various degrees of ease. For example, the strict M’Nughten test is based upon cognitive incapacity, i.e., the inability to know the nature and quality of one’s act or that it is wrong,s whereas the so-called irresistible impulse test is based upon the offender’s inability to control his or her behavior, whatever might have been the offender’s cognitive capacity.’ Moreover, both of the foregoing tests in principle establish rather strict “all or none” standards for exculpation: the defendant was or was not responsible - there is no middle ground. The A.L.I. Model Penal Code test, for another example, which permits exculpation based on either cognitive or control incapacity, is worded in terms of a “lack of substantial capacity,” implying that it recognizes a range of extreme incapacity.” Clearly, then, the MPC test is broader than eitherM’Nughten or “irresistible impulse,” and it may lead to greater numbers of acquittals. Still, the number of defendants who can satisfy any of the predominantly used tests is small. Understanding the nature and operation of the insanity defense leads intuitively to an understanding of the impetus for a defense of diminished capacity. Judges and juries in criminal cases are confronted constantly with defendants who are not sufficiently disordered to be judged legally insane, but who are not fully normal either. Because they are not legally insane, they clearly deserve punishment, but at once the obvious moral and legal question arises: Do legally sane but mentally abnormal offenders deserve the same punishment as normal offenders whose criminal behavior is essentially similar? If the offender’s capacity for cognitive-affective evaluation or control of his or her behavior is significantly impaired, is it fair to punish such an offender with the same degree of severity as one whose capacities are not similarly impaired? Examination of the facts of some of the most well-known cases brings into sharp relief the intuitions that underlie the doctrine of diminished capacity. Nicholas Gorshen” was a chronic paranoid schizophrenic who for twenty years

‘M’Naghten’s Case, 4 St. Tr. N.S. 847, 931, 8 Eng. Rep. 718,722 (H.L. 1843). “[T] o establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” Id. ‘Parsons v. State, 81 Ala. 577,597,2 So. 854,866-67 (1887). A defendant presenting an insanity defense may “not be legally responsible if the two following conditions concur: (1) If, by reason of the duress of such mental disease, he had so far lost the power fo choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed; (2) and if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.“Id. “MODEL PENAL CODE 5 4.01 (1) (Proposed Official Draft, 1962). “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.” Id. “People v. Gorshen. 51 Cal. 2d 716,336 P.2d 492 (1959).

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had experienced trances during which he heard voices and experienced visions, “particularly of devils in disguise committing abnormal sexual acts,“12 sometimes upon Gorshen himself. After a fight with a supervisor at work with whom he previously had good relations, Gorshen went home and obtained a pistol to kill the supervisor who had beaten Gorshen and cast aspersions upon his manhood. Gorshen told his examining psychiatrist, “all I was thinking about all of this time is to shoot O’Leary. I forgot about my family, I forgot about God’s laws and human’s laws and everything else. The only thing was to get that guy, get that guy, get that guy, like a hammer in the head.“i3 According to the psychiatrist, Gorshen was almost like an automaton whose behavior was a desperate attempt to ward off the imminent possibility of a complete loss of sanity which threatened to result from the stress from the beating and the aspersions on his manhood. Gorshen was minimally sane under the then applicable M’Naghten standard in California, I4 but many persons might argue that he was not fully normal. By comparison, one need only consider the cases of most first degree murderers whose crimes are heinous but the deliberate acts of a normal person. Consider a further and perhaps harder example. Prosenjit Poddar” was a lonely foreign graduate student from India, of the “untouchable” caste, who was studying naval architecture at the University of California at Berkeley. He fell in love with Tatiana Tarasoff, a fellow student, but Tarasoff rejected Poddar, and, in the Court’s words, he “underwent a severe emotional crisis.“16 He became depressed and neglected his appearance, his studies and his health. He remained by himself, speaking disjointedly and often weeping. Following a tinal rebuff, Poddar shot at and then stabbed Tatiana to death. According to four mental health professionals, at the time of the killing Poddar was suffering from acute and severe paranoid schizophrenia. The prosecution expert and the jury disagreed; Poddar was found sane, but he, too, clearly was not fully normal when he killed Tatiana. Gorshen and Poddar are merely representatives of an enormous number of defendants, all of whom are legally sane but apparently lacking the capacities of fully normal persons. If observers are able to set aside feelings of revulsion and revenge engendered by the terrible crimes committed by Gorshen and Poddar, some will probably admit that these offenders are simply not as blameworthy as the killer for hire or other coolly deliberate first degree murderers. They may have enough free choice to warrant some punishment, but that choice was sufficiently impaired to support the conclusion that their culpability was substantially affected by mental disorder. After all, capacity and consequent responsibility is a matter of degree. The insanity defense establishes a dividing line between only two classes of offenders - the responsible and nonresponsible - thus arguably violating strong moral intuitions about degrees of responsibility and blameworthiness. As “Id. at 122, 336 P. 2d at 495. ‘“Id. at 723, 336 P. 2d at 496. “California has now adopted the A.L.I. test for insanity quoted at note 10, supra. 22 Cal. 3d 333,583 P. 2d 1318,149 Cal. Rptr. 275, (1978). “People v. Poddar, 10 Cal. 3d 750,518 P. 2d 342,111 Cal. Rptr. 910 (1974). 161d. at 753,518 P. 2d at 344, 111 Cal. Rptr. at 912.

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we have seen, social policy dictates that only a few offenders should be acquitted by reason of insanity. Nevertheless, what reason is there not to assess differing degrees of blameworthiness for abnormal but legally sane offenders? The need for a doctrine of diminished capacity arises from the apparent injustice of placing Gorshen and Poddar and offenders like them in the same class of culpable offenders as those who are unimpaired. The arguably overstrict limitations of the insanity defense and sometimes the death penalty are avoided, and justice is done by reducing the degree of crime and punishment of diminished offenders.” II. The Forms of Diminished

Capacity

This section will examine in detail the two forms of diminished capacity, the partial responsibility variants, that have developed. The mens rea variant will be explained and analyzed using primarily California law, and the partial responsibility variant will be explained and analyzed using British law. mens rea and

A. The Mens Rea Variant

The mens rea variant allows the accused to demonstrate that he or she lacked the mental state constituting one of the elements of the charged offense because of mental abnormality. If the mental element of an offense is lacking, the defendant cannot be convicted of that offense, but may be convicted only of a lesser included offense (provided that the mens rea of the lesser offense can be proven beyond a reasonable doubt). For example, a disordered defendant charged with first degree murder on an intent to kill theory may be able to show that he or she was unable to deliberate and premeditate, thereby reducing liability to second degree murder (i.e., killing with intent, but without premeditation and deliberation).la As any thoughtful criminal lawyer would readily perceive, the mens rea variant of diminished capacity is arguably not a new doctrine at ail. In every criminal trial the prosecution bears the burden of proving all the elements of the crime charged, and the defendant has the right to adduce proof to cast a Teasonable doubt on the existence of those elements.19 Thus, evidence of mental disorder or any other factor material to the existence of an element is highly probative and sliould be properly admissible.20 Despite the clear logic of this reasoning, some courts have held that evidence of mental disorder is admissible “In this section I have developed, for the purpose of the argument, the case in favor of the necessity of a diminished capacity doctrine. It should be noted, however, that an equally strong negative argument can be developed, as I try to do in Section III, B infru.It is argued in that section that a defense of diminished capacity is undesirable. “People v. Wolff, 61 Cal. 2d 795,394 P. 2d 959,40 Cal. Rptr. 271 (1964). 191n re Winship, 397 U.S. 358 (1970). See Mullaney v. Wilbur, 421 U.S. 684 (1975);Patterson v. N.Y., 432 U.S. 197 (1977). lo The MODEL PENAL CODE takes this position. “Evidence that the defendant suffered from mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense.” MODEL PENAL CODE, $4.02 (1) (Proposed Official Draft, 1962). This test has been adopted by almost all states that have adopted the diminished capacity doctrine by statute. Recent Developments, supra note 1 at 228.

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only to prove legal insanity and not simply to cast doubt on the existence of an element. Such holdings appear plainly wrong and are probably unconstitutionaL2’ There seems to be no justification for prohibiting the accused from bringing forth any probative evidence concerning the elements of the crime charged. If this argument is correct, and I believe it is beyond doubt, the menu reu variant of diminished capacity is simply a straightforward means to defeat the prosecution’s attempt to prove the elements of a crime charged and thus is not a new defense. The erroneous holdings regarding the admissibility of evidence of mental abnormality for purposes other than proving legal insanity were probably the result of a desire to prevent the institution of a “partial” insanity defense. Judges believed that insanity was an “all or none” proposition - either defendants were legally insane or they were not. 22 If a defendant failed to plead “not guilty by reason of insanity,” evidence of mental disorder was therefore considered irrelevant and inadmissible. As noted, the Courts so holding were in error because they did not understand or chose to ignore the logic of the position being advanced. Other courts allowed evidence of mental abnormality to be used to negate a mental element, but limited such use to cases of first degree murder or crimes of so-called “specific intent.” For example, some courts permitted the negation of deliberation and premeditation, but not the intent to kilLz3 Consequently, a defendant charged with first degree murder might be convicted of second degree murder: a further reduction to conviction of a degree of homicide not requiring intent (e.g., involuntary manslaughter) or to complete acquittal was not possible. Similarly, in specific intent crimes, such as assault with intent to kill, wherein two intents are required for conviction, the second intent may be negated, but the defendant could then be convicted for the lesser included offense that requires proof of only a so-called general intent wherein the suflicient mens reu may be inferred from the performance of the actus reus.24 For example, the crime of assault with intent to kill requires two intents - to assault and to kill. If the defendant is unable to form the intent to kill because of mental abnormality, he may still be convicted of the lesser included offense of simple assault, a general intent crime. 2s In both of the two hypothetical cases given of first degree murder and assault with intent to kill, the defendant is convicted of some crime and is not allowed complete acquittal on the basis of insanity not sufficient to prove legal insanity. The perceptive critic of the mens rea variant will immediately note the illogic of the limitations that have been placed on it. If insanity may negate any mental element, logic dictates that in an appropriate case it should be able to negate “Hughes v. Matthews, 576 F. 2d 1250 (7th Cir. 1978); People v. Wetmore, 22 Cal. 3d 318,326, n. 6, 583 P. 2d 1308, 1314, n. 6, 149 Cal. Rptr. 265,271, n. 6 (1978) (relying on Mullaney v. Wilbur,421 U.S. 684 (1975) and Patterson v. N.Y.,432 U.S. 197 (1977);Recent Developments. supra note 1, at 234-236. But see. Bethea v. United States, 365 A.2d 64, 85-86 (D.C. Ct. App. 1976). “E.g., State v. Rideau, 249 La. 1111, 1130-31, 193 So. 2d 264, 271 (1966); Hughes v. State, 227 N.W. 2d 911, 913-14 (Wise. 1975); Fox v. State, 73 Nev. 241, 244-46, 316 P. 2d 924,926-27 (1957). For more cases and discussion, see Recent Developments supra note 1, at 222-23. Z3People v. Walzack, 468 Pa. 210,360 A. 2d 914 (1976). 24People v. Hood, 1 Cal. 3d 444,462 P. 2d 370, 82 Cal. Rptr. 618 (1969). “People v. Rocha, 3 Cal. 3d 893,479 P.2d 372.92 Cal. Rptr. 172 (1971).

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all mental elements. Furthermore, it is plain nonsense to believe that insanity can prevent a defendant from forming an intent to kill, but can not prevent the same defendant from forming an intent to assault or from having knowledge of the nature of his or her acts. Indeed, if this line of analysis is pushed harder, the whole rnenS rea variant is seen to be a flimsy structure. Most menS reas are rather simple mental states that require little intelligence or cognitive capacity. To negate an intent, or even premeditation or deliberation, would require quite extreme mental abnormality: the defendant would have to be terribly disturbed, disoriented and out of touch with reality. Of course, if a defendant were so disordered, he or she would clearly be legally insane according to any of the tests now in use. Thus, except in rare instances, a defendant who is able to negate an element by reason of insanity is also almost certainly legally insane as well. Note, however, that the reverse is not necessarily true: a delusional defendant who is legally insane might very well be able to premeditatedly and deliberately form an intent to kill based on the delusion, e.g., M’Naghten himself.26 It is easy to deduce, however, why courts have attempted to limit the mens rea variant. If the mens rea of the offense charged and all lesser included offenses are negated, the prosecution has failed to prove its case and the defendant is fully acquitted and freed. Thus, quite dangerous defendants might be turned loose. By contrast, as is well known, defendants acquitted by reason of insanity are usually committed to one form or another of a closed hospital and those pose no danger to the community. 27 In order to balance the morally intuitive need to mitigate the conviction of abnormal but legally sane offenders on the one hand, and the need to protect the community on the other hand, courts have imposed the perhaps practical but illogical limitations on the mens rea variant described supra. ‘a Mental disorder short of legal insanity can be used ‘6See note 8 supru. Under the delusion that the Tories, and specifically the Prime Minister, Sir Robert Peel, wished to murder him, M’Naghten intentionally shot and killed Peel’s secretary, Edward Drummond, having mistaken him for Peel himself. It has been suggested that evidence of mental abnormality is often not relevant to determining whether a defendant’s conduct satisfied the formal mens reas of criminal offenses. Dix, supra note 1, at 324-S. The development of the doctrine of mens ren proceeded quite independently from the development of clinical mental health science, and it is therefore unsurprising that mental abnormality and the absence of mens rea may not be correlated. It is a commonplace that mentally abnormal individuals may form intents, be conscious of the creation of risk, and the like. Courts in jurisdictions adopting the strict mens rea variant are therefore faced with a question of relevance when the defendant offers evidence of mental abnormality to negate a mens reu. The evidence of abnormality may appear quite relevant to culpability in a broad sense, but it may not be carefully tailored to the issue of the presence of a specific mens reu. The result has often been fictional mental health testimony where the expert testifies about the defendant’s lack of intent or the like, although it may be clear that intent was present in the ordinary sense. Professor Dix has suggested, however, that evidence of mental abnormality may typically be relevant to the question of the existence of premeditation and deliberation in first degree murder cases. Dix, supru, at 32.5. As will be explored infru, California has attempted to avoid the problem of the relevance of mental abnormality to mens rea by interpreting mens rea in such a broad fashion that almost any evidence of mental abnormality will be relevant to the existence of particular mental states. See notes 18-79 and accompanying text, infra. “CAL. PENAL CODE $1026 (Deering 1979). See generally, German & Singer, Punishing the Not Guilty: Hospitalization of Persons Acquitted by Reason of Insanity. 29 RUTGERS L. REV. 1011 (1976). *‘See text accompanying notes 18, 22-24 supra. See People v. Nance, 25 Cal. app. 3d 925, 102 Cal. Rptr. 266 (Dist. Ct. App. 1972).

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to negate some elements, but not all, and thus defendants are convicted of some crime and not freed. California, however has finally recognized the illogic of its limitation on the mens reu variant. In People v. Wetmore, the California Supreme Court h&i that evidence of mental disorder could be used in the first phase of the California bifurcated insanity trial system to negate any mental element, even if this would lead to a complete acquittal for the defendant.” Wetmore was a veteran who had been psychiatrically hospitalized more than ten times. In this instance he had become confused and broke into the apartment of another, allegedly under the delusion that the apartment was his. When arrested in the apartment, Wetmore was “shocked and embarrassed, and only then understood that he did not own the apartment.“30 Wetmore was charged with burglary breaking and entering with the intent to commit theft - but defended himself on the ground that he did not have the intent to commit the felony of theft because of his delusion about the ownership of the apartment.31 Because there was no lesser included offense, Wetmore would be acquitted entirely if he convinced a judge or jury that he was acting on the basis of his delusion. The Court recognized that its holding meant that the distinction between the defenses of diminis hed capacity and insanity would thereby be blurred because a defendant could be entirely acquitted on either theory.32 Nevertheless, the justices felt impelled to follow the dictates of logic: They wrote: Clearly, if a crime requires a specific intent, a defendant who because of mental disease or defect lacks that intent, cannot commit that crime. The presence or absence of a lesser included offense within the charged crime cannot affect the result. The prosecution must prove all elements of the crime beyond a reasonable doubt; we do not perceive how a defendant who has in his possession evidence which rebuts an element of the crime can logically be denied the right to present that evidence merely because it will result in his acquittaP The Court was well aware that its holding would undermine the rationale for California’s bifurcated trial procedure in insanity defense cases.34 This outcome did not deter the Court from its holding, however, and it contented itself with recommending various solutions to the California legislature.35 Moreover, =22Cal. 3d 318,321,583 P. 2d 1308,1310,149 Cal. Rptr. 264,267 (1978). “‘Id. at 322,583 P. 2d at 1311, 149 Cal. Rptr. at 268. “Id. at 322,583 P. 2d at 1311,149 Cal. Rptr. at 268. One might argue that no defense based on mental abnormality was necessary here: Wetmore might have been acquitted on the ground that he lacked the mens rea for burglary because of a mistake of fact. 1 submit, however, that such a claim would be incredible in the absence of some degree of insanity. “Id. at 324,583 P. 2d at 1312,149 Cal. Rptr. at 269. “Zd. 328, 583 P. 2d at 1315, 149 Cal. Rptr. at 272. Note that despite the broadness of the reasoning, the Court uses the language of “specific intent.” It is not clear whether the court is using “specific intent” in its technical or nontechnical sense. In the latter case, Wetmore would apply to ah crimes; in the former, the holding seems inconsistent with the reasoning. Failure to clarify this point is a major flaw in Wetmore. “‘Id. at 331,583 P. 2d at 1317,149 Cal. Rptr. at 274. “Id. at 331,583 P. 2d at 1317, 149 Cal. Rptr. at 274.

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the Court clearly perceived that a further result of its holding would be to permit the complete acquittal of some dangerous, disordered offenders.j6 On this account, too, the Court was not deterred, and suggested that the legislature should amend the civil commitment procedures, which only authorize short terms of commitment, to provide for longer terms for certain dangerous, disordered persons.37 In sum, California refused to deny the ultimate logic of the menS reu variant of diminished capacity:38 any difficulties created by the Wetmore holding, would have to be remedied by the California Legislature. Even if the menS rea variant is extended to its logical limits, as California has done, it is not clear that this variant of diminished capacity well serves the rationale for the doctrine. In some cases, mental abnormality will negate the element of a higher offense and the partially disordered defendant will be convicted of and punished for a lower degree of crime. In such cases, the doctrine, if it is truly a separate doctrine at all, seems to operate properly. But in the majority of cases, the behavior of a substantially disordered defendant may still satisfy all the elements of the highest relevant offense. In many instances, for example, the defendant may plan a homicide well in advance and perform the plan with consummate efficacy. Although all the elements of a first degree murder may be satisfied, the defendant’s capacity morally to evaluate or to control his or her behavior may still appear substantially in doubt because 07 mental disorder. Consider the following example. Dennis Wolff, a fifteen-year-old boy, was charged with the first degree murder of his mother.3g For a year prior to the crime, he had been obsessed with sex and planned to kidnap women for sexual purposes. He believed he needed to bring them to his house to carry out his plans and therefore decided that it would be necessary to do away with his mother first. He carefully planned the homicide, and, after one foiled attempt, he killed her by beating her with an axe handle that had been carefully hidden away for that purpose. Defense experts testified that Wolff was clearly mentally disordered, but the jury convicted him of first degree murder and found him legally sane.40 According to any ordinary understanding of the language of the California first degree murder statute, Wolff plainly killed his mother with deliberate and premeditated intent to do so. Nevertheless, according to some standards of normality, Wolff was not fully normal and thereby was less blameworthy for his admittedly awful deeds. But how can a jurisdiction allegedly committed to the mens rea variant deal with a case like Wolff where all the elements of the highest offense appear satisfied but the defendant is apparently quite abnormal? The answer in California has been judicially to reinterpret the traditional elements of the crimes in order to allow the jury to assess the defendant’s ability 361d at 328-29,583 P. 2d at 1315, 149 Cal. Rptr. at 272. 371d’ at 330,583 P. 2d at 1316, 149 Cal. Rptr. at 273. “OThis assumes, of course, that the Wefmore court has not limited its holding See note 3 3, supra. P. 2d 959,40 Cal. Rptr. 271 (1964). 39People v. Wolff, 61 Cal. 2d 795,394 “Id. at 798, 394 P. 2d at 961,40 Cal. Rptr. at 273.

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morally to assess or to control his conduct. 41 We shall now examine in detail the line of homicide cases that has accomplished this result.42 The first such major addition occurred in P. v. Wolff whose facts were just described. There the California Supreme Court considered only the possibility that Wolff did not kill with deliberation and premeditation.43 Unlike some jurisdictions, California courts had interpreted the deliberation-premeditation language to have significant meaning, permitting conviction for first degree murder only if there was a substantial degree of thought, weighing and deliberate judgment or planning. 44 Seemingly, however, Wolff met even this strict standard, but the California Supreme Court interpreted the deliberation-premeditation formula to require something more: to convict a defendant of first degree murder, the court held, “the true test must include consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act.“45 The Court explained further: “the extent of his [the defendant’s] understanding, reflection upon it and its consequences, with realization of the enormity of the evil, appears to have been materially - as relevant to appraising the quantum of his moral turpitude and depravity - vague and detached.“46 According to the Court, the defendant’s mental infirmity was material to the quantum of his personal turpitude and depravity because these were inherently related to the degree of the murder. Thus, the deliberation-premeditation test also included the ability maturely and meaningfully to reflect on the gravity of the contemplated act, an ability that could be negated, as it was in Wolff’s case, by the presence of mental abnormality short of legal insanity. Note, finally, that the language is expressed in terms of the defendant’s capacity rather than 41See

text accompanying notes 43-79 infru. 41To help guide the reader not trained in law through the following discussion, the relevant portions of the California definitions of the degrees of criminal homicide are set forth here. All references are to the CAL. PENAL CODE (Deering 1979): $187. Murder defined. (a) Murder is the unlawful kilhng of a human being, or a fetus, with malice aforethought. . . $188. Malice defined: [Express and implied malice]. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. . $189. [Degrees of murder.] All murder which is perpetrated by means of a destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree: and all other kinds of murders are of the second degree. 3192. [Manslaughter defined: Kinds.] Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: 1. Voluntary - upon a sudden quarrel or heat of passion 2. Involuntary - in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act, which might produce death in an unlawful manner, or without due caution and circumspection. . 43Wolff. 61 Cal. 2d at 818-823,394 P. 2d at 973977,40 Cal. Rptr. at 285-289. 44People v. Thomas, 25 Cal. 2d 880, 156 P. 2d 7 (1945). See also People v. Anderson, 70 Cal. 2d 15, 447 P. 2d 942,73 Cal. Rptr. 550 (1968). ” Wolff, 6 1 Cal. 2d at 821, 394 P. 2d at 975,40 Cal. Rptr. at 287. 461d. at 822, 394 P. 2d at 976,40 Cal. Rptr. at 288.

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in terms of whether he did in fact maturely and meaningfully reflect upon the gravity of his contemplated act. Of course, this presents no problem for the mens reu variant of diminished capacity. If a defendant lacks the capacity to perform a mental operation, it may be conclusively presumed that he or she did not perform that operation on any given occasion.47 California’s interpretation of the deliberation language is clearly aimed at the defendant’s capacity morally to evaluate his or her behavior, and, as such, is quite different from the usual formal elements of crimes which are defined without explicit reference to the capacity for moreal evaluation. Indeed, it is not difficult to perceive that the “mature and meaningful reflection” or “personal turpitude” test is simply a lesser version of a cognitive-affective type of knew and underM ‘Nagh ten test4s which seeks to determine if the defendant stood the difference between right and wrong. The Wolff test for diminished capacity asks the same question, but allows its negative answer to acquit the defendant only of first degree murder; the defendant is still guilty of second degree murder even if he has a limited capacity to “maturely and meaningfully reflect.” Naturally the logic of this test is that the person’s incapacity morally to reflect on his actions will vary along a continuum depending on the severity of the defendant’s mental abnormality. Accordingly, there seems no reason why someone more incapacitated than Wolff but still legally sane should not be convicted of an even lesser degree of crime. It will be recalled, however, that the Court added the “mature and meaningful reflection” test only to the elements of deliberation and premeditation for first degree murder. Although the test is in fact a mini-insanity defense, it is cast in the mold of the mens rea variant. In People v. ConZey4g the California Supreme Court dealt with the case of another impaired defendant whose conduct apparently satisfied all the usual formal elements of first degree murder. After many days of drinking and planning, William Junior Conley shot and killed his lover, who had rejected him, and her husband. Conley was convicted of first degree murder and appealed on the ground that the trial court erred in refusing to give requested instructions on manslaughter. At the time of the killing, Conley had consumed an enormous amount of alcohol and a defense psychologist testified that the defendant had been “in a dissociative state at the time of the killings and because of personality fragmentation did not function with his normal personality.“50 Conley requested manslaughter instructions on a theory of diminished capacity, but, as noted, the request was denied. After setting forth the California boilerplate that murder is a killing with malice aforethought, the Conley court concluded that a person incapable of harboring malice could be convicted of homicide in a degree no higher than voluntary manslaughter. If the person did not kill with malice, by definition he or

“This is simply a matter of logic. See Commonwealth v. Walzack, 468 Pa. 210,218,360 A. 2d. 914, 918 (Pa. 1976). Whether a defendant lacked the capacity to form a particular mental state may be more difficult to determine, however, than whether that mental state was in fact formed. 4*See Wolff, 61 Cal. 2d at 800-801,394 P. 2d at 961-62,40 Cal. Rptr. at 273-74;note 8,supru. 49People v. Conley, 64 Cal. 2d 310,411 P. 2d 911,49 Cal. Rptr. 815 (1966). ‘Old. at 315,411 P. 2d at 914,49 Cal. Rptr. at 818.

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she could not be guilty of murder. ‘i A careful linguistic analysis of the concept of malice aforethought in homicide statutes and cases clearly demonstrates, however, that the concept seems to have no independent meaning; rather, it appears to be a shorthand designation for all those menS YeaS that will support a conviction for murder (e.g., intent to kill without legally adequate provocation, with or without deliberation and premeditation; intent to cause grievous bodily harm; extreme risk creation; perpetration of a felony).5z The jury found Conley guilty of murder. If Conley’s claim that he did not intend to kill was disbelieved, on a plain reading of the facts there was apparently no means by which he could negate malice. He intended to kill without legally adequate provocation, and, indeed, he appeared to deliberate and premeditate. At best, under the Wolff doctrine the Court might have found that his mental abnormality resulting from intoxication rendered him unable to “maturely and meaningfully reflect” upon the gravity of his act. Consequently, deliberation and premeditation could be negated, but, in the absence of legally adequate provocation, Conley would still be guilty of second degree murder. Nonetheless, if the defense testimony was accurate, Conley was in a dissociative state - a state of greater impairment than Wolff’s,. To justify a manslaughter instruction, the Court therefore found it necessary to impart independent meaning into the concept of malice aforethought. The court held that, “if because of mental defect, disease, or intoxication . . . the defendant is unable to comprehend his duty to govern his actions in accord with the duty imposed by law, he does not act with malice aforethought. . . .“53 Thus, malice became a separate element requiring proof that the defendant was able to “comprehend his duty. . . .” Note well that the ConIey test for malice is also cast in the menS rea mold, but again, in reality, it is a mini-insanity test of the cognitive-affective M’ZVughten variety. The Conley question, in effect, is whether the defendant’s ability to know and understand the difference between right and wrong is sufficiently diminished by mental abnormality to warrant a reduction to voluntary manslaughter as well as to second degree murder. ConZey left open the question of how to deal with cases where the defendant’s capacity for self-control is impaired by mental abnormality. A defendant’s cognitive-affective capacities might be unimpaired, but he or she might still have difficulties in resisting impulses to behave criminally because of mental abnormality. In California, this was an especially acute issue because the M’Mghten variant of the insanity defense then in use did not allow consideration of the capacity for self-control: it was a purely cognitive-affective test.54 A cognitively unimpaired defendant could properly be convicted of the highest degree of crime even if his or her self-control was seemingly impaired by mental “Id. at 318,411 P. 2d at 916,49 Cal. Rptr. at 818. “See note 42, supru: People Y. Holt, 25 Cal. 2d 59, 70, 153 P. 2d 21, 27 (i944);People v. Washingtion, 62 Cal. 2d 777,782,402 P. 2d 130,134,44 Cal. Rptr. 442,446 (1965). 53ConZey, 64 Cal 2d at 322, 411 P. 2d at 918,49 Cal. Rptr. at 822. A more recent, similar statement is found in People v. Scdeno, 10 Cal. 3d 703,724,518 P. 2d 913,927,112 Cal. Rptr. 1,15 (1974). “We cannot assume . . that in finding that the defendant deliberated his conduct, the jury necessarily found that he was capable of comprehending his duty to conform his conduct to the law and after weighing that obligation made a reasoned decision to kill.“Id. ” Wo@L 61 Cal. 2d at 800-01., 394 P. 2d at 961-962,40 Cal. Rptr. at 273-274; CALJIC No. 4.00.

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abnormality. This is a morally and legally unsatisfactory state of affairs for those who accept the premise that there are “irresistible impulses.” An important step in California’s attempt to deal with the self-control issue was presented by People v. Cantreil. s5 While driving, Cantrell picked up a twelve year old boy and made homosexual advances to him. When the boy began to scream and struggle, Cantrell strangled him to death. The psychiatric experts for the defense agreed that Cantrell did not have the capacity to deliberate or intend to take human life; Cantrell’s deed was allegedly a compulsive reaction to the boy’s yelling and struggling which Cantrell supposedly “had no power to contr01.“56 The Court observed that because irresistible impulse could not operate in California as a complete defense to crime, a defendant had to be allowed to prove diminished capacity on the theory that his act was the product of irresistible impulse. 57 The Court wrote that, “competent testimony to the effect the act of killing resulted from an irresistible impulse due to mental disease is relevant evidence bearing on the issues of intent to kill and malice aforethought.“58 The Court disposed of the irresistible impulse issue with finality in People v. Poddar,59 the facts of which were described supra.60 The Court wrote that the effect of diminished capacity on malice in a second degree murder-implied malice case was relevant to two questions: “first, was the accused because of a diminished capacity unaware of a duty to act within the law?” and, “second, even assuming that the accused was aware of this duty to act within the law, was he, because of a diminished capacity, unable to act in accordance with that duty?“61 The first question was a restatement of the Conley malice interpretation, but the second, which refers to the capacity for self-control, was new. The Court explained the second test: If it is established that an accused, because he suffered a diminished capacity, was . . . unable to act in accordance with the law, malice could not properly be found and the maximum offense for which he could be convicted would be voluntary manslaughter.62 The Court clearly held that diminished capacity could be bottomed on a theory of irresistible impulse. The Court was also careful to note, however, that the Poddar holding did not imply a change in the California rule that irresistible impulse was not a complete defense to a crime.63 Evidence of abnormality in the capacity for self-control could be used only “as a partial defense if it effectively negates the existence of malice.“@ Even if an impulse was entirely irresistible, this would not be a complete defense. “People v. CantrelI, 8 Cal. 3d 672,504 P. 2d 1256,105 Cal. Rptr. 792 (1973). “Id. at 679,504 P. 2d at 1260, 105 Cal. Rptr. at 796. “Id. at 685,504 P. 2d at 1264,105 Cal. Rptr. at 800. “Id. at 686,504 P. 2d at 1265,105 Cal. Rptr. at 801. 59People v. Poddar, 10 Cal. 3d 750,518 P. 2d 342,111 Cal. Rptr. 910 (1974). 60See text accompanying notes 15-16, supru. 6’Poddur, 10 Cal. 3d at 758,518 P. 2d at 348,111 Cal. Rptr. at 916. “Id at 758,518 P. 2d at 348,111 Cal. Rptr. at 916. “Id: at 758,n. 12,518 P. 2d at 348, n. 12,111 Cal. Rptr. at 916, n. 12. wId. at 758, n. 12,518 P. 2d at 348, n. 12,111 Cal. Rptr. at 916, n. 12.

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A last issue to be considered in our examination of California’s attempt to widen diminished capacity law by reinterpreting the elements is the ultimate degree to which culpability for homicide can be reduced by diminished capacity. Conley and Poddur held that malice could be negated and the degree of crime therefore could be reduced to voluntary manslaughter. Also in Conley, however, the defendant had raised the claim that due to intoxication he was legally unconscious when he killed his victims.65 Apparently, therefore, the intent to kill element as well as the malice element could be negated. The Court recognized this and held that if persons suffered diminished capacity to the point of unconsciousness because of intoxication, thereby negating malice and the intent to kill, the defendant could be convicted only of involuntary manslaughter. If the unconscious was produced by voluntary intoxication, total acquittal by reason of unconsciousness was prohibited: a defendant could not be allowed entirely to profit by his own wrong, that is, by voluntary intoxication 66 It will be recalled, too, that Cuntrell also raised the possibility, to be discussed infrq6’ that irresistible impulse could negate the intent to kill. The question left open by the discussion of unconsciousness in Conley and the implications of Cuntrell was whether a reduction to involuntary manslaughter would be allowed in cases where malice and intent were negated but the defendant was ,not unconscious. The question was finally clarified by People v. Ray, wherein the Court held that if both malice and intent to kill were negated by diminished capacity, reduction to involuntary manslaughter was possible even if the defendant was not legally unconscious.68 Before analyzing further California’s attempt to rationalize diminished capacity doctrine, let us briefly review the state of the law. In theory California had judicially adopted the mens reu variant of diminished capacity. Evidence of mental abnormality may be used to negate the elements of any crime,69 including those without lesser included offenses, even if the outcome is acquittal. Furthermore, the formal elements of the various degrees of homicide have been reinterpreted. The deliberation and premeditation required for a conviction of first degree murder on an intent to kill theory also require that the defendant be able to “maturely and meaningfully reflect on the gravity of his contemplated act.” The malice that must be proven for a conviction of either degree of murder requires a finding that the defendant formed one of the usual mental states (e.g., intent; creation of extreme risk) und that the defendant was aware of and able to act in accordance with the law. Finally, if malice and intent to kill are both negated, the defendant cannot be convicted of a degree of homicide higher than involuntary manslaughter. It should simply be noted in passing that the Wetmore holding is the perfectly logical outcome of the mens reu variant of diminished capacity, and, indeed, that the technical mens reu variant is arguably not a new or separate doctrine

64 Cal. 2d at 323,411 P. 2d at 919,49 Cal. Rptr. at 823. 66Id. at 324-26, n. 4,411 P. 2d at 919-24, n. 4,49 Cal. Rptr. at 823-5, n. 4. 6’See note 76 and accompanying text infra. ‘a 14 Cal. 3d 20,533, P. 2d 1017,120 Cal. Rptr. 377 (1975). 69Thi~ is true for homicide and all other crimes. Again, this statement is subject, fication that Wermore may apply only to specific intent crimes. See note 33 supra. 65Confey,

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at all. Nevertheless, a most important observation about California doctrine is that most of its development has been concerned with cases that barely fit the formal menS yea mold. The California Supreme Court has been forced to reinterpret the criteria for the various degrees of homicide in order to maintain the fiction that diminished capacity operates only to negate the elements of an offense, while at the same time allowing mitigation for mentally abnormal homicide defendants whose conduct satisfied the formal elements of the higher degrees of homicide.” Wolff, Conley and Poddar redefined deliberation-premeditation and malice, but, as we have noted, the new “elements” are hardly elements in the usual sense. Rather, the tests established by these cases are simply variants of one form or another of the insanity defense. When examined closely, it is clear that these new elements raise the same issue raised by the insanity defense: whether because of mental disorder, the defendant was able to know and appreciate that his act was wrong or was able to control his behavior. Thus, if there is some question about the defendant’s cognitive or control capacity, the degree of his crime and punishment can be reduced even if the usual formal elements of a higher crime are satisfied. While the goals of the California Supreme Court are perhaps laudable, its method of achieving them has led to criteria that are difficult to apply and to illogical results. Consider first the “mature and meaningful reflection” test of Wolff This test and the “awareness of duty” test of Conley ask precisely the same question; both are concerned with the defendant’s capacity morally to evaluate his or her conduct. Nevertheless, the Court limited the Wolff test to a gloss on the deliberation-premeditation formula. To extend mitigation further into the manslaughter range required a further move of the Conley type, and the Court did not hesitate to make it. But how is a judge or jury to know which cases are appropriate for the Wolff test and which are appropriate for the Conley test? When viewed with common sense, the two tests are perceived to operate in fact as simply reflecting differing degrees of incapacity for moral evaluation. Yet the Court has never recognized this, and refers to the tests as if they were concerned with quite different mental states rather than with different degrees of the same mental state.71 Neither case establishes a reasonably clear standard for a jury or judge to apply. Proof of the usual mens reas, such as intent to kill or conscious awareness of the creation_of great unjustified risk, is difficult, but the meaning of these mental states is relatively clear because they have reasonably identifiable empirical referents. But, for example, what does it mean to fail maturely and meaningfully to reflect on the gravity of one’s contemplated act? At the extremes, this determination may appear simple, but diminished capacity doctrine is concerned by definition with intermediate cases. The meaning of the ” if the court did not trine, it might be accused tute. a task that typically App. 1976) (adoption of province of the legislature). 71Conzpare Wolff, 61 P. 2d 911, 49 Cal. Rptr. (1967).

adopt the “interpretation” approach to developing the diminished capacity docof violating the separation of powers by wholesale rewriting of the homicide stais for the legislature. Cf: Bethea v. United States, 365 A. 2d 64, 88-92 (D.C. Ct. diminished capacity doctrine is a “revolutionary” step that should be within the Cal. 2d 795, 394 P. 2d 959,40 815, with People Y. Goedecke.

Cal. Rptr. 271, with Conley, 64 Cal. 2d 310,411 65 Cal. 2d 850.423 P. 2d 777.56 Cal. Rptr. 625

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Conley-Poddar test for malice is also unclear. The Conley and Poddar tests are phrased in “all-or-none” terms. Malice is negated if the defendant is unaware of his or her duty or unable to act in accordance with law because of diminished capacity. When diminished capacity is caused by a nonculpable mental abnormality such as mental disorder or defect, one may reasonably ask why such incapacitated defendants are not entitled to complete acquittal. Is a defendant who is unable to act in accord with law, who lacks the capacity to control his conduct, a tit subject for the application of penal sanctions? The answer, of course, is supposedly that diminished capacity defendants are not fully legally insane; they are neither totally unaware of their duty nor totally unable to act in accord with it - nevertheless, they are more incapacitated than fully normal persons. Accepting, arguendo, the logic of this position, the language of the tests yields little guidance in deciding which cases fall between full responsibility and legal insanity. After all, the language is phrased exactly like an insanity test; indeed, it is arguably stricter than the A.L.I. test.” The Ray decision is also a logical ramification of the mens rea approach, but as a practical matter it seems rather removed from the realities of human behavior. If malice and the intent to kill are both negated, it is true that by definition the highest degree of homicide crime for which conviction is possible is involuntary manslaughter. But if a defendant’s capacity is so diminished that he can not even form the intent to kill, a rather simple mental operation, it is hard to believe that, whether or not “unconscious,” he or she is sufficiently sane to be held criminally responsible. Almost certainly, the insanity defense tests would be satisfied in such cases, and it appears that such defendants ought to be acquitted entirely.73 Now, as a matter of social policy, it may be sensible to prohibit this result where the diminished capacity is due to a culpable cause such as voluntary intoxication, but what should be the response when the defendant is diminished because of mental disorder or defect? Disordered or defective defendants would not be profiting from their own wrong if they were entirely acquitted because disorder or defect is hardly produced by blameworthy conduct. Unlike becoming voluntarily intoxicated, being mentally disordered or defective is not evidence of criminal negligence. On the other hand, total acquittal in such cases might lead to the outright release of dangerous persons. As a matter of logic and theoretical clarity, nonculpably abnormal defendants whose malice and intent to kill are both negated should be acquitted entirely. It simply strains the imagination to believe that a defendant diminished by nonculpable factors such as disorder or defect who can not form the intent to kill is in any way blameworthy. Consequently, reduction to involuntary manslaughter in such cases is inappropriate. The fear of releasing dangerous defendants should not lead to a contrary result. First, penalties for involuntary manslaughter are usually light and release will occur early in any case.74 “The M’Naghten and irresistible impulse tests are phrased in all or none terms, whereas the A.L.I. test is phrased in a relativistic term - “lack of substantial capacity.” See notes 8-10 and accompanying text supra. ‘s Arenella, supm note 1 at 833-34. “See e.g., CAL. PENAL CODE $193 (b) (Deering 1979), which provides for imprisonment in the state prison for two, three or four years. Although such a penalty is light, it is of course not utterly negligible; some incapacitation will result.

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The need for incapacitation should be handled in another way.” Second and more importantly, conviction of involuntary manslaughter in such cases is unjust. Considerations of deterrence and incapacitation should, perhaps, enter sentencing decisions, but a defendant should not be convicted of an offense for which he is not guilty. In sum, the logic of Ray and Wetmore is that at some point the diminished capacity doctrine and the insanity defense merge into one another. Cantrell, too, establishes the spectre of illogic. There, it will be recalled, the California Supreme Court raised the possibility that irresistible impulse, while not a complete defense, could negate the intent to kill. This makes little sense. Intention and compulsion are not mutually exclusive.76 Even if the compulsion is strong, intention is not negated by compulsion. Compelled conduct should perhaps be excused under some conditions, but not because intention is necessarily lacking. In Cantrell, the compulsion was arguably so overpowering that reduction of the conviction to a degree lower than voluntary manslaughter may have appeared necessary as a matter of-justice. In California, however, such a reduction would be impossible unless an element of voluntary manslaughter could be negated. Consequently, to permit reduction to involuntary manslaughter where it might be appropriate, the California Supreme Court was forced to adopt the fiction that irresistible impulse can negate intent. The most perplexing aspect of the Conley test is its limitation to murder predicated upon a theory of intent to kill or creation of great risk. If it is appropriate to consider evidence of mental abnormality less than legal insanity bearing on awareness of duty when deciding upon the blameworthiness of a homicide defendant, it is surely also appropriate to consider such evidence for all mentally abnormal defendants. By its terms, the Conley test is clearly relevant to blameworthiness for all crimes, not simply homicide. Any defendant whose capacity to be aware of his duty to act in accord with law is diminished by mental abnormality is arguably less culpable than a fully normal defendant. Yet the California Supreme Court has limited the test to the malice element of homicide.” I submit that this is a totally irrational limitation in light of the

‘5Civil commitment is an obvious alternative. See also, note 37 and accompanying text supra. 76This point has been recognized for a long time. E.g., J. F. Stephen, 2 HISTORY OF THE CRIMINAL LAW OF ENGLAND 101-102 (1883). “Conley, 64 Cal. 2d at 322, 411 P. 2d at 918, 49 Cal. Rptr. at 822. A good example of this is in felony murder cases where it has been held that diminished capacity may be used to negate the mens rea of the underlying felony, People v. Tidwell, 3 Cal. 3d 82,87,89 Cal. Rptr. 58,6O 473 P. 2d 763,765 (1970), and that a separate Conley malice instruction need not be given if felony-murder is the only murder theory, People v. Conrad, 31 Cal. App. 3d 308, 328-32, 107 Cal. Rptr. 421, 435-8 (Dist. Ct. App. 1973); see also, People v. Fonville, 35 Cal. App. 3d 693, 706, 111 Cal. Rptr. 53, 61 (Dist. Ct. App. 1973);see generally, Note, The Diminished Capacity Defense to Felony-Murder, 23 STAN. L. REV. 799 (1971). The theory of these cases is that the malice necessary for a conviction for murder in a felony murder case is based upon proof of +he perpetration of the underlying felony. Therefore, malice may be negated only by negating the mens rea of the underlying felony. This argument would be persuasive if California had not given malice independent meaning in Conley. After Co&y, however, there seems little reason not to allow a defendant to demonstrate that he or she could not comprehend his or her duty when perpetrating the underlying felony, thus negating Conley-type malice and preventing a felony-murder conviction. If such a move were allowed, however, it would be clear that a Conley instruction would be more than a “malice” instruction and would be applicable to all crimes, a result the courts obviously do not wish to reach.

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avowed purpose of diminished capacity: to mitigate the culpability of offenders who are abnormal but legally sane.‘s It seems apparent that the Wolff-Conley-Poddar approach to diminished capacity has in fact abandoned the mens rea approach while attempting to stay within its framework. Moral and legal responsibility and “formal” legal guilt by satisfaction of the elements are distinguishable issues.79 Cognitive and control incapacities will often fail to negate the usual formal elements of crimes and thus will fail to exonerate the defendant from “formal” guilt, but to some persons such incapacities do seem clearly relevant to the degree of a defendant’s moral and legal responsibility and thus to “true” culpability. California has attempted to take cognitive and control incapacities into account by stretching the usual meanings of the elements in a rather piecemeal fashion. The result, as demonstrated, is a confusing and sometimes illogical doctrinal structure.

B. Partial Responsibility If one does not use the mens rea approach, mental abnormality short of legal insanity may be taken into account to assess a defendant’s blameworthiness by employing what I have termed the “partial responsibility” variant. This section will examine this variant by exploring its development in England.80 The defense of “diminished responsibility” was introduced in England by Section 2 of the Homicide Act of 1957.s1 The Act reads as follows: Where a person kills or is a party to the killing of another. he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. . A person who but for this section would be liable . . to be convicted of murder shall be liable instead to be convicted of manslaughter.82 [emphasis added] As interpreted by the courts, the abnormality of mind required is far broader than that which will satisfy the M’Naghten test for legal insanity. In R. v. Byrne,83 Lord Parker, CJ, interpreted the test as follows: “Abnormality of mind,” which has to be contrasted with the timehonoured expression in the M’Naghten rules, “defect of reason,” ‘*See notes 4-17 and accompanying text supru.It appears that diminished capacity based on irresistible impulse is applicable to all crimes. See CuntreN, 8 Cal. 3d at 685, 105 Cal. Rptr. at 800, 504. P. 2d at 1264. 79H. Fingarette & A. Hasse, MENTAL DISABILITIES AND CRIMINAL RESPONSIBILITY 209 (1979). *“See generally, J. C. Smith & B. Hogan. CRIMINAL LAW 176-181 (4th ed. 1978); X. Walker.

1 CRIME AND INSANITY IN ENGLAND 147-164 (1968); Sparks, My summary folIows that of Smith & Hogan, supra. ‘I English Homicide Act, 1957, 5 & 6 Eliz. II, C. II. “Id. at $2. ‘“Regina v. Byrne, [ 19601 2 Q.B. 396, [ 19601 3 ALL E. R. 1.

supru note

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state of mind so different from that of ordinary human bethe reasonable man would term it abnormal. It appears to wide enough to cover the mind’s activities in all its aspects, the perception of physical acts and matters and the ability a rational judgment whether an act is right or wrong, but ability to exercise will-power to control physical acts in acwith that rational judgment.84

Moreover. instructions have been approved which direct the jury that the mental state required is one “bordering on,” but not amounting to insanity,85 and that insanity must be understood in its “broad popular sense.“86 The English test is quite clearly the equivalent of the Conley-Poddar test, but there is no pretense that the test applies to the elements of the crime. Rather, the jury is expected to approach the question of the defendant’s mental responsibility in a “broad, common-sense way.“87 If it appears to them that the accused’s responsibility is substantially impaired, the accused can be convicted only of manslaughter. Thus the jury is asked a straightforward moral question; Is the accused so different from the rest of us because of mental abnormality that he is less responsible, even if his conduct satisfied the formal elements of murder. Note, however, that this partial responsibility defense applies only in prosecutions for murder and allows reduction only to manslaughter. Yet there is no moral reason why the English test should be so limited. If mental abnormality short of legal insanity is to be considered at all, substantially impaired responsibility should bear on an accused’s culpability and punishment for any crime. Although the English diminished responsibility rule is more “honest” than the California approach, its limitation to homicide is subject to the same objections raised in’ regard to Conley supra. ” The English answer, however, is that the diminished responsibility doctrine is necessary primarily to avoid the rigors of the life sentence that is imposed upon convicted murderers. In offenses other than murder, including manslaughter the courts have wide powers to take account of mental abnormality by reducing the penal sentence or by orders requiring medical treatment.89 The English rationale is misguided. A defense of partial responsibility should not only secure a reduced punishment for the accused, it should also affirm the principle that persons convicted of the same crime are essentially equally blameworthy. Take the case of two arsonists, where one is fully normal and the other is substantially mentally impaired but not legally insane. It is not sufficient in my view to .have the jury convict them both of arson and then to have the judge sentence the abnormal defendant more leniently. The primary moral and 83Reginav. Byrne, [ 19601 2 Q.B. 396, [ 196013 ALL E. R. 1. wZd. at 403, 3 All E.R. at 4. “H.M. Advocate v. Braithwaite, [ 19451 J.C. 55. “Rosev. Regina. [1961] A.C.496, [1961] 1 AUE.R. 859. 8’B.ww, 2 Q.B. at 404, 3 All E.R. at 5. **See note 77 and accompanying text supm. Home Office Department of Health 89Mental Health Act. 1959, 7 & 8 Eliz. 2. C. 72. 0 60. Social Security. REPORT OF THE COMMITTEE ON MENTALLY ABNORMAL OFFENDERS (Cmnd. 6244, 1975).

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legal decision about the defendant’s degree of moral and legal responsibility should be made in the first instance by the jury, the representatives of society. If the moral difference is expressed only by the low visibility sentencing decision of the judge, the morally educative effect of the criminal law is much diminished . Despite the criticisms of the limitations of British doctrine, however, the British approach, unlike that of California, is commendable for its honesty and conceptual coherence. III. Alternative Approaches to the Mentally Abnormal but Legally Sane Offender: No Defense or Rational Partial Responsibility In its utterly simplest form, the issue is the bearing of mental abnormality on criminal responsibility. As we have seen ~upru,~~ the underlying rationale for defenses based on mental abnormality is an impairment in free choice. It. is widely believed that mentally abnormal defendants have little or no control over their abnormal behavior or other behavior related to it such as criminal conduct. Where choice is lacking, blame and punishment can not justly be imposed .91 That mental abnormality is a matter of degree is well recognized. Consequently freedom of choice must also be a matter of degree.92 Most persons and the law perceive this, and think of freedom of choice as falling along a continuum from easy choices to hard choices. At some point along the continuum of choice, society and the law are ready to grant that a choice was too hard - it was too difficult for the actor to choose to behave otherwise - and that the actor’s conduct should be morally and legally excused.93 The conduct is viewed not as a product of the actor’s choice, but rather as a product of nonculpable severe abnormality, such as mental disorder, or overwhelming external pressure, such as duress. The hardest and critical question is where to draw the line between hard choices where the actor could have behaved otherwise and hard choices where it would have been patently unreasonable to expect the actor to have behaved differently .94 Mental abnormality is for many persons clearly one variable that at some extreme renders choices too hard to impose responsibility. As noted, the insanity defense seeks to identify those cases of such extreme disability that it is fair to 90See text accompanying notes 4-7 Supra. 91United States v. Brawner, 471 F. 2d 969,985-86 (D.C. Cir. 1972); H. L. A. Hart. PUNISHMENT AND RESPONSIBILITY 3940 (1968). “E.g., MODEL PENAL CODE g.01, Comments 158 (Tent. Draft. No. 4, 1955); Sparks, supra note 1 at 15. 93Morse, The Twilight of Welfare Criminology: A Reply to Judge Bazelon. 49 S. CAL. L. REV. 1247, 1253 (1976); Morse,supra note 4, at 562-564. W Morse, supra note 93, at 1253. The “hard choice” model comprehends those cases where the defendant’s ability to conform to the law, and thus his or her responsibility, is impaired by irrationality that the defendant can not control. For many writers, irrationality is the essence of mental abnormality. E.g., Fingarette, Disabilities of Mind and Criminal Responsibility - A Unitary Doctrine, 76 COLUM. L. REV. 236, 24643 (1976); Moore, Some Myths About “Mental Illness,“32 ARCH. OF GEN’L PSYCHIATRY 1483, 1485-87 (1975); seegenemlly, H. Fingarette & Hasse, supra note 79.

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excuse the actor from moral and legal responsibility for his or her conduct. Nevertheless, despite the intuitive plausibility of the claim of nonresponsibility in cases of extreme disorder, there are those who claim that legally insane persons are morally responsible for their conduct, and, moreover, that the purposes of the criminal law are better served if such persons are held legally responsible if their conduct satisfies the elements of a criminal offense.g5 The argument, briefly, is this. Mental abnormality affects choice but there is little reason to believe that insane persons are totally out of control; compared to other causes of behavior such as poverty, mental abnormality does not seem uniquely overpowering. Mentally disordered persons may face hard choices, but they do have substantial choice and punishment for their deeds is therefore just. Furthermore, because they have choice, they can be deterred. Finally, holding such persons to a high standard of responsibility has a morally salutary effect on the population at large; all citizens are thereby put on notice that society and the legal system expect them to conform to law even if the pressures to offend are great.g6 In the case of persons who are extremely disordered - who are largely out of touch with reality or so abnormal that their behavior seems totally inexplicably irrational - many respond to the call for imposition of criminal responsibility with disbelief and even outrage. The argument is plausible, nonetheless. The question of how to respond to those who are seemingly abnormal but legally sane is therefore especially difficult. If there are good moral and social reasons to hold legally responsible those who are clearly crazy, a fortiori there are good reasons to hold responsible those whose mental abnormality is of lesser degree. By some standards, Wolff, Conley, Poddar and Cantrell were abnormal, but, except for their willingness to commit homicide, they were not sufficiently disordered to raise the presumption that they did not have substantial amounts of control over their behavior. ” The question, then, is whether the law should take account of differing degrees of responsibility among those defendants who have sufficient choice ultimately to be held criminally responsible. Should criminal responsibility be an “all-or-none” issue - legally sane or insane - or should it be a matter of degree? And if the law chooses to differentiate among legally sane offenders on the basis of degrees of responsibility, how is this to be accomplished? A. Rational Partial Responsibility

My preference, explained infra,” is for the law not to adopt a separate doctrine of diminished capacity. But, if the argument for a doctrine of diminished P5Morse, supra note 4, at 640-41. See W. LaFave & A. Scott, CRIMINAL Morris, Psychiatry and the Dangerous Criminal, 41 S. CAL. L. REV. 514,517-18 Hart, supra note 91, at 19.

LAW 272-273 (1972); (1978); see also H. L.A.

96See generally, Morse, supra note 4, at 566-576. “See text accompanying notes 15-16,39-10,49-50,55-56 supra. If one accepts the proposition that all otherwise nonexcusable and nonjustifiable killers must be abnormal and lack control, then no such killers are responsible. This position can not be empirically verified, of course, and is an absurd reductio. ‘* $111, B. infia.

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capacity is accepted, the law should adopt a partial responsibility approach that is applicable to all crimes. I have already argued that the mens rea variant in its true form is not a new doctrine at all.99 It is the constitutionally compelled, standard approach to culpability of determining whether the charged elements have been satisfied by the conduct of the accused; this is not a new, partial defense.lm Moreover, my sense is that it applies to very few cases: the mental states required by the definitions of most crimes are terribly simple and a defendant unable to perform them is probably legally insane. Moreover, and most importantly, it does not provide a useful approach to cases where the defendant is abnormal but the formal elements are satisfied. The purpose of diminished capacity doctrine is to identify those offenders who are only partially responsible for their criminal conduct. The mens rea variant does not accomplish this purpose. A defendant whose conduct does not satisfy the formal elements of a crime is not partially responsible for that crime: he or she is not responsible for it at all. loi Further, to convict and punish an offender for a lower degree of crime is to find that offender fully responsible for -that crime. In a formal sense, then, there is no reduction at all. Indeed, it would almost certainly violate due process to prohibit a defendant from introducing evidence of mental abnormality that was material to whether the elements of a charged offense were satisfied by his or her conduct.102 Consequently, the critical issue is whether a partial responsibility defense is justified to deal with mentally abnormal but legally sane offenders whose conduct satisfies the formal elements of the highest degrees of crime. The diminished capacity doctrine, like the insanity defense, should be sensitive to the moral issue presented when an allegedly mentally abnormal defendant commits criminal acts. Without regard to whether the formal elements of a charge are met, it should simply ask whether reduced responsibility is the result of mental abnormality which has impaired the defendant’s capacity for moral evaluation of his acts or the capacity to control his conduct. The mens rea variant will not be responsive to the true moral issue unless the definitions of the elements are expanded as California has done. But such an approach is in reality a disguised form of partial responsibility with all the attendant problems 99See text accompanying note 19 supru. “‘a.See note 21 and accompanying text supro. In California, of course, this is not strictly true; in the guise of the mens rea approach, California has judicially developed a new type of diminished capacity defense. See notes 29-79 and accompanying text supru. “‘Commonwealth v. Walzack, 468 Pa. 210,215, n. 6,360A.Zd 914,916, n. 6 (1976). ““See note 21 and accompanying text supru. Reaching this conclusion presents an evidentiary problem, however. As noted in note 26 supru. the relevance of mental abnormality to traditionally strictly defied mens reus is often weak. Still, the defendant would have to be allowed to introduce his other evidence of mental abnormality. The consequent risk is that the jury might hear much evidence relevant to culpability in the broad sense, but irrelevant to the precise question about the mental state in issue. Compromise verdicts might result where sympathetic jurors convict a defendant of a lesser crime although all the formal elements of the higher crime were met. Thus, a situation like that obtaining in California could occur even in a jurisdiction where mens rea was defined strictly in the traditional manner. Possible remedies might be for the judge to hear the evidence out of the jury’s presence in order to predetermine its relevance. Or, the judge would have to control strictly the presentation of evidence, ruling irrelevant those portions not directly relevant to mental state and preventing well-meaning experts from offering “fictional” conclusions about the absence of mens reas that the evidence demonstrated were clearly present.

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of an approach that lacks clear theoretical guidance. Indeed, as I and others have argued,“j the California approach is simply a disguised form of the partial responsibility variant. Unless partial responsbility is adopted, many defendants who are clearly impaired will not be entitled to reduction in the degree of culpability and punishment because their conduct fully satisfies the elements of the higher degrees of crime. While this outcome may be justified in order to incapacitate dangerous offenders, it is not morally just if one accepts the premise that legally sane but abnormal offenders are not fully responsible for theirconduct. The partial responsibility variant is simply more sensitive to the moral purposes of diminished capacity doctrine and should be adopted if diminished capacity is to be accepted at all. This means, of course, that the law will have to assess degrees of responsibility within the class of those who are legally sane. Before I suggest how this reasonably may be accomplished, I shall analyze the objections to the feasibility of this task. To do so I shall confront directly the sensible arguments forcefully made by Professor Arenella in his fine article.‘@’ Professor Arenella believes a formal partial responsibility defense will upset the law’s “delicate balance between competing subjective and objective theories of liability.““’ Thus, if partial responsibility operated always to reduce the defendant’s punishment without regard to other factors such as dangerousness, it will foster an irrational sentencing decision. If the law adopts a purely subjective test of partial responsibility which provides for an automatic reduction in the degree of crime or punishment, highly dangerous offenders will be released quite early. It might be pointed out in passing that this effect will be heightened in jurisdictions adopting determinate sentencing laws where the term imposed is strictly tied to the differential seriousness of the offenses. Professor Arenella contends that automatic reduction in the period of incarceration is an irrational result. But he is correct only if one accepts a variant of a mixed theory of criminal punishment that permits utilitarian claims to take primacy over claims of justice. If one is worried primarily about social safety, Professor Arenella’s objections are well-founded. If, however, one believes that an offender’s degree of culpability, of desert, morally must set a maximum limit to punishment, lo6 Professor Arenella is mistaken. Then it is not at all irrational in the criminal justice system to subordinate claims of social safety. Partially responsible offenders who are released after short terms can be incapacitated by civil commitment or the like, but they should not be punished more severely than is warranted by their degree of culpability. If such offenders are not civilly committable, then they will be set free. Nevertheless, general freedom from preventive detention is a cost borne by all societies that subordinate claims of utility to those of justice. lo7 Persons should not be incarcerated until lo3 Arenella, supra note 1, at 831,844-849; note 79 and accompanying text supra. lM Arenella, supra note 1. ‘OsId.at 850. lwSee A. Von Hirsch, DOING JUSTICE 66-76 (1976). ‘O’See generally, Dershowitz, Preventive Confinement: A Suggested Framework for Constitutional Analysis, 51 TEX. L. REV. 1277 (1973). Civil commitment of the mentally ill and certain bail practices, for example, are general exceptions in our society. See, e.g., Blunt v. United States, 322 A. 2d 579 (D.C. Ct. App. 1974); CAL. WELF. & INST. CODE !jp5150,5250 (West 1972 & Supp. 1978).

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they offend the criminal law, and then their punishment should tit the crime. In sum, the “irrational” sentencing consequences of a subjective culpability theory of partial responsibility are only a problem if one accepts a largely utilitarian theory of punishment. It is also argued that juries are incapable of performing in a consistent, principled fashion the type of individualized culpability judgments required by the doctrine of partial responsibility. lo8 This is especially so when the jury must base its determination on imprecise psychiatric judgments. Differentiating among degrees of responsibility allegedly “requires the jury to make an exceedingly subtle, if not impossible, distinction.“log Although there is much truth in the charge of psychiatric imprecision,“’ the judgment required in partial responsibility cases is a legal and moral judgment, not a psychiatric one.“’ As I have argued in great detail elsewhere, mental health professionals have little to offer on the question of responsibility, and most of the evidence necessary to make the broad, social, common sense judgment about responsibility can be easily based on lay testimony.“’ Difficulties with psychiatric judgments are not insurmountable obstacles. If the jury understands that the diminished capacity determination requires a common sense evaluation of abnormality and responsibility, it will be capable of making this judgment as successfully as it makes judgments about legal insanity. Of course, legal insanity is more extreme, but as long as there are not too many degrees of partial responsibility, a reasonable jury should have little trouble identifying those defendants who are not legally insane but who are not fully normal either. The objection that these determinations will not be made in a consistent and principled fashion is not tenable. Many legal standards, including criminal negligence and the insanity defense, are poorly operationalized and do not lend themselves readily to strictly principled decision making. Still, juries are trusted to make such decisions within reasonable limits upon instructions from the judge. There is little reason to believe reasonable decisions about partial responsibility can not be made by properly instructed juries. Finally, it is argued that a partial responsibility doctrine, unlike the insanity defense, can not be reasonably limited because it can not be fairly tied to diminished responsibility resulting only from mental abnormality.113 It is contended that the insanity defense may be distinguished because severe mental disorder is the only cause that can completely negate responsibility.‘i4 This argument is at least partially correct: there is no logical reason to limit partial responsibility to cases of mental abnormality. But the argument is also partially in error: there is little reason to believe that mental abnormality is specially able completely to negate responsibility. Tying nonresponsibihty defenses solely to a medical model of insanity is simply not justified scientifically at any level of defense. The only virtues of doing so are that it appears to uphold the lo8Arenella, supra note 1, at 857. ‘“Id. at 858. ““Morse, supra note 4, at 543-54,558. lllSeegenerally, Morse,supra note 4, at 539-600. “‘Morse,supra note 4, at 542,615-619. ‘I3 Arenella, supra note 1, at 858-859. ‘IaId. at 861.

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nondeterministic assumptions of the law - only mental abnormality is thought to destroy free choice - and it limits the number of defendants who are able to raise nonresponsibility defenses. ‘15 But these arguments apply in the case of partial responsibility as well. If limitation of the insanity defense to cases of mental abnormality is considered justifiable, a similar limitation in cases of partial responsibility is also justifiable; these limitations must stand or fall together. To conclude this section, a workable model of partial responsibility will be presented. In sum, the proposal is this: there should be a single category of partial responsibility, between full culpability and legal insanity, that should apply to every crime, and punishment should be a fixed percentage of the punishment of the offense formally proven. The partial responsibility doctrine should apply to every crime, not just to homicide or other crimes that are divided into degrees, and not just to specific intent crimes. Once the principle of partial responsibility is admitted and distinguished from the concept of “formal” guilt, if the offender’s capacity for selfcontrol or moral evaluation of his conduct was impaired, there is no logical or moral reason not to permit the defense whenever the offender’s mental abnormality seems implicated in the criminal conduct. Second, there should be only one degree’ of partial responsibility. Asking juries to make finer distinctions among legally sane but abnormal defendants would be too difficult. As I argued supra, ‘I6 a determination of only one degree is reasonably possible. Thus, four verdicts would be possible: “guilty as charged,” “guilty but partially responsible,” “ not guilty by reason of insanity,” and “not guilty.“” A “guilty but partially responsible” verdict would mean for every crime that the elements were satisfied, but the defendant, although legally sane, was so mentally abnormal that his degree of responsibility and therefore culpability warrants recognition and a substantial reduction in penalty.*ls The jury would thus be making the critical social, moral, and legal decisions. Third, the punishment for a partially responsible defendant should be a legislatively imposed fixed percentage of the penalty for the charged offense that is formally proven. If a jurisdiction provides a range of incarceration for an offense, the range for the partially responsible offender would be the fixed percentage of the minimum to maximum terms. If a jurisdiction provides for fixed terms, the partially responsible offender would receive a fixed percentage of “sSee United States v. Brawner, 471 F.2d 969, 994-95 (D.C. Cir. 1972). It is often believed that mental abnormality is particularly verifiable. Compared to other factors that might bear on responsibility, such as socioeconomic status, however, mental abnormality appears less objectively verifmble. I” See text accompanying notes 11 l-l 12 supra. “‘See, H. Fingarette & A. Hasse, supra note 79, at 247-257. “‘A jury instruction for the verdict of “guilty but partially responsible” might be the following: “If at the time of the unlawful conduct the defendant was suffering from such abnormality of mind as substantially impaired his responsibility for his acts and omissions, the defendant shall be found guilty but partially responsible.” This test, based on the English Homicide Act of 1957, supra notes 81-2 and accompanying text, makes no pretense of asking a “scientific” question. Rather it asks the judge or jury to answer the precise moral and legal question that should be raised by a partial responsibility variant of diminished capacity. The abnormality of mind could be based on mental disorder, mental defect or trauma. My preference would be to exempt intoxication from the partial responsibility approach and to treat it, in standard fashion, as applicable only to the strict mens rea approach. Otherwise, abnormality that is culpably caused, i.e., by intoxication, would provide too ready an excuse for criminal conduct.

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that term. I recognize that the fixed percentage of reduction would be a somewhat arbitrary amount. But allowing the judge to make finer degrees of distinction and the consequent sentencing discretion would lead to undesirable low visibility decisions that would be inconsistent and unprincipled. The proposed scheme would release some potentially dangerous offenders at an early date, but I adhere to a subjective, retributive view of criminal punishment which requires that punishment should be proportionate to culpability. Thus, less culpable offenders must be punished less, even if this means releasing dangerous offenders earlier. Again, if society wishes preventively to detain some of these persons, it should do so on noncriminal grounds that are explicitly divorced from a blame and punishment model for societal intervention. The proposed scheme follows moral intuitions, leaves the moral question to the jury without asking it to find often fictional connections between mental abnormality and menu rea, and is relatively easy to apply. Although no doctrine of partial responsibility is far preferable, as will be argued in the next section, if the doctrine must exist, the proposed scheme is a rational one for fulfilling its purposes. B. The Defense of Diminished Capacity is Undesirable My preference is to abolish any partial defense of diminished capacity and to hold all legally sane offenders responsible for the highest degree of the crime whose elements are formally satisfied by the offender’s conduct. It should be recalled at the outset that I do not believe that it is impossible to develop a reasonable partial responsibility defense: to the contrary, as I have argued supra, II9 it is quite possible. A true defense of diminished capacity is undesirable because it is not morally compelled and is socially harmful. Mentally abnormal persons, especially those who are not severely disordered and substantially out of touch with reality, are sufficiently responsible for their behavior to be held accountable for the crimes they commit. This is not a matter capable of empirical proof. Questions of responsibility are moral issues; empirical evidence may indicate how hard certain choices are, but deciding which choices are too hard to impose responsibility is a social, moral and legal question. As I read the evidence bearing on the control disordered persons have over their conduct, I am persuaded that they have very substantial control over their behavior and should be ,considered fully responsible for it. Indeed, they appear to have as much or nearly as much choice as normal persons who are considered responsible. i20 Those who are legally sane may fairly be expected completely to conform to the rather minimal dictates of the criminal law. In fact, the legal system already holds fully responsible many persons, such as the severely economically deprived, who could well show that their choice to obey the law was a very hard one indeed, and perhaps a much harder choice than is faced by those who are mentally abnormal. Few persons have not suffered from such emotions or problems as depression, frustration, thought disorder and fury, and most persons have occasional“9See text accompanying notes 105-18 supra. “‘Morse, supra note 4, at 564-77 (1978).

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ly wished, often intensely, to harm others or to behave lawlessly. Moreover, all persons differ in their cognitive and control capacities. But a person who knows what he or she is doing and has sufficient control to be legally responsible at all should be fully accountable for his or her conduct. Our expectation in a civilized society is that all of us will control ourselves, obey the law, and not harm others because of our moods and furies, no matter how intense or sustained they may be. Although it may be harder for.some persons to conform to law, the criminal law does not set an enormously high standard for persons to obey. In general, the criminal law sets the ethically minimal rules for civilized relations between members of society. Indeed, nearly all persons live up to this standard. Most depressed, frustrated, confused, or furious people do not kill or otherwise violate the law. It is not unjust to hold fully responsible those whose choices may be hard, but who are legally sane. If they know what they are doing and offend, they should be convicted and punished without reduction in the degree of offense or punishment.“’ I*’ A reasonable counterargument that may be offered at this point is that the law already allows mitigation in crime and punishment for intentional killings through the “legally adequate provocation-heat of passion” formula that reduces the degree of homicide from murder to voluntary manslaughter. People v. Berry, 18 Cal. 3d 509, 556 P.2d 777, 134 Cal. Rptr. 415 (1976);CAL. PENALCODE $191(l) (Deering 1979); W. LaFave & A. Scott, suprn note 95, at 572-83. The heat of passion reduction is premised on the view that some provocations are so powerful that they may enrage even a reasonable person, depriving him or her of usual self-control, and consequently reducing the person’s culpability. Cases where the ability to conform to law is impaired by provocation and passion may therefore seem like cases where it is impaired by mental abnormality. There is a difference, however. The provocation-passion formula is based on the reaction of persons to enraging exfemul stimuli: it is assumed that even fully normal persons can be impassioned by certain sufficiently provocative circumstances (legally adequate provocation). By contrast, the law typically does not allow mitigation to manslaughter in those cases where the ability to conform to law was allegedly weakened primarily by internal causes. Diminished capacity doctrine is an exception to this general rule, but it should not be. The capacity for self-control may be impaired by many factors such as tension, fatigue, a history of deprivation, and various forms of emotional upset that are quite normal. Moreover, it is clear that some people seem to have weak self-control as a matter of character: they have, to use colloquial expressions, “short fuses,” or “fly off the handle” quite easily. Yet the law does not allow mitigation in such cases. The law does and should expect all persons, except under unusual circumstances, to control themselves. My position is that mental abnormality is much like those many other factors that render self-control more difficult, and there is therefore littie reason to treat it specially. Morse, supru note 4, at 562-77. If special legal dispensation is not granted to fatigued persons and individuals with habitual control problems, for instance, there is little reason to grant such dispensation to those who are mentally abnormal. Finally. legally adequate provocation is typically more objectively verifiable than lesser states of mental abnormality. At present, the law of voluntary manslaughter is under revision in some quarters because the traditional provocation-passion formula is deemed too strict. Thus, for example, the MODEL PENAL CODE provides that an intentional killing will be manslaughter if it “is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.” $210.3(l) (b) (Proposed Official Draft, 1962). Examples of a reasonable explanation or excuse are an unanticipated drug reaction, grief, and, I suppose, mental abnormality short of legal insanity. My view is that extention of the criteria for mitigation to manslaughter is unwise. Unanticipated drug reactions and other nonculpable. powerful causes of weakened self-control may be sufficent grounds for mitigation. especially if they are momentary and unexpected, because they are similar to legally adequate provocation: even fully normal persons may be impaired by them. But such cases are few and seem quite distinguishable from character, mental abnormality, or transient, but not unfamiliar, states such as fatigue. In these latter cases. the individual is capable of controlling his or her behavior and is not “overwhelmed” by surprising. powerful causes.

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The question should not be whether a defendant is as. culpable as the most culpable offender who commits the same crime, but rather, whether the defendant could have controlled himself. If an individual could have behaved otherwise, albeit with difficulty, he or she should have. Such defendants deserve no mitigation of their crime and punishment. There may be significant differences among legally sane offenders in terms of their ability morally to evaluate or control their conduct, but all responsible offenders are capable of meeting the law’s low threshold requirements for full responsibility for the crimes they have committed as defined by the strict elements: lz2 We should not conclude that the moral turpitude of an offender is not great simply because the moral turpitude of others may be even greater. Moreover, the utilitarian purposes of the criminal law are best served by holding all legally sane persons fully accountable. They are all capable of being deterred, and if deterrence works at all, the threat of more severe sanctions ought to have an incremental deterrent effect. If some legally sane offenders are given reduced punishment, the deterrent effect of the criminal law is clearly lost as to them, and perhaps to society at large if persons believe it is easy to “beat a rap” with a claim of partial responsibility, This is especially so in light of the relative ease with which a defendant can find psychiatric opinions to buttress such claims. A utilitarian analysis would go on to claim that, by definition, legally sane offenders are dangerous, and because they are deserving of punishment, incapacitation in a penal institution is warranted. Indeed, because some offenders with mental problems may be especially dangerous, unreduced sentences served in institutions that provide necessary security are clearly justified. If some mental treatment is also indicated, there is simply no practical or therapeutic reason why such treatment can not be provided in prisons. Finally, the morally educative effect of the criminal law is best served by unreduced convictions and sentences for legally sane offenders. The criminal law will thereby teach all legally sane citizens that they are expected fully to conform to law. Adherence to the dictates of the criminal law is such an important social goal that the lesson of the law should be that there is no compromise with notions of accountability except in extreme cases.

“‘See Bethea v. LJnited States, 365 A.2d 64, 87-88 (D.C. Ct. App. 1976). “Within the range of individuals who are not ‘insane,’ the law does not recognize the readily demonstrable fact that as between criminal defendants the nature and development of their mental capabilities may vary greatly.” Id. The court does seem to approve taking such differences into account in sentencing, however. Id., citing United States v. Moore, 486 F.2d 1139,1179-80 (1973) (Leventhal, J., concurring).