Psychological abnormality and capital sentencing

,n,ernaf,ona, Pnnted

Journal

I” the U S.A

of iaw

and Psychratry

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7 pp

249-267.

0160.2527/64

1964 CopyrIght

reserved

< 1965 Pergamon

$3.00 + .OO Press Ltd

Psychological Abnormality and Capital Sentencing The New “Diminished

Responsibility”

George E. Dix*

The furor in criminal responsibility policy and law that was stimulated by John Hinckley’s acquittal has focused upon what, if any, provision American law should make for the complete exculpation of some disordered offenders. It seems likely that when the dust settles, the insanity defense will have survived in most American jurisdictions, although in many it may have become limited to those offenders who are able to demonstrate that at the time of their conduct, their cognitive capacities were seriously impaired. Whatever its ultimate effect in this context, the post-Hinckley debate may also contribute to other responsibility issues, including the so-called diminished responsibility debate. Progress in that debate may also be furthered by one aspect of the recent developments in American capital sentencing. That process now includes a version of “partial” or diminished” capacity. Experience with this limited version of a doctrine, otherwise unknown to American criminal law, may contribute to appropriate resolution of the broader questions concerning the desirability of a more broadly applicable doctrine of the same sort. Evaluation of this experience, however, must necessarily be conducted with sensitivity to the lessons of the Hinckley acquittal. This paper examines American experience with the new form of diminished responsibility. It then turns to the lessons that might be drawn from that experience regarding the desirability of a broader form of partial or diminished responsibility, with special emphasis upon the considerations that the Hinckley experience suggests must be given consideration in setting criminal responsibility policy. The confusion in terminology relating to criminal responsibility in general and diminished responsibility in particular, however, suggests that some preliminary attention needs to be given to that matter. Terms

In few areas of criminal law have terms become so confused as “responsibility” and, more specifically, “diminished responsibility.” This is illustrated by the terminology of the two recent leading discussions: Peter Arenella, writing in 1977,’ *Professor of Law, School of Law, University of Texas, 727 E 26th Street, Austin, Texas 78705. U.S.A. ‘Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed hlarrlage. 77 COLUM. L. REV. 827, 828 (1977) (hereinafter cited as “Arenella”). 249

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discussed a “partial defense” and two models, a “mens rea” model and a “diminished responsibility”mode1; Stephen Morse, two years later,* referred to “the diminished capacity doctrine” and identified two “variants” or “approaches,” the “mens rea” variant and the “partial responsibility” variant. Best defined, “criminal responsibility” refers to those doctrines that put into issue whether a particular defendant had, at the time of his conduct, certain characteristics related to his disabilities that are usually assumed and therefore unnecessary for the prosecution to prove. The traditional defense of “insanity,” for example, may, depending upon the criterion adopted, put into issue the defendant’s ability to understand that his conduct was conduct prohibited by law, his ability to understand that his conduct was (or would be regarded by others as being) reprehensible in a moral sense, or his ability consciously to avoid engaging in the conduct. None of these matters, of course, are usually in issue and the prosecution usually has no need to introduce evidence on them. Whether the defendant acted with the state of mind or mens rea required by the crime charged is not, under this terminology, part of responsibility. This is an element of the charged offense which is placed in issue by the charge itself. Generally, the only substantive criminal law doctrine that comes within this definition of responsibility is the defense of insanity or its equivalent.3 Insanity has been the major vehicle for accommodating defendants’ claims that their psychological abnormality should be taken into account in assessing their criminal liability. Such abnormality may, in particular cases, be relevant to whether other requirements have been met. Thus a defendant’s psychological impairment may be relevant to whether he acted with the state of mind required by the particular crime charged. But in such situations, accommodating defendants’ abnormality is at most an incidental function of requirements - such as the menus rea requirement - that are imposed because of their perceived value in assessing the liability of normal accuseds. Insanity poses an all-or-nothing choice. Either the defendant is nonresponsible and therefore cannot be convicted of or criminally punished for anything, or he is fully responsible and is appropriately convicted of and punished for the crime which the prosecution can show he committed. It is this characteristic of the doctrine that has generated pressure for its supplementation with other doctrines that can be used to accommodate defendants’ impairments. Diminished

Responsibility

There has been substantial academic interest in the possibility of supplementing the insanity defense with another doctrine that would reduce or diminish responsibility but not exculpate the defendant. Under such a doctrine, in appropriate 2Morse, Diminished Capacity: A Moral and Legal Conundrum, 2 INTER. J. L. & PSY. 271 (1979) (hereinafter cited as “Morse”). See also, Dix, Psychological Abnormality as a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility, and the Like, 62 J. GRIM. L., C. & P.S. 313, 321 (1971) (hereinafter cited as “Dix”), identifying four doctrinal methods of accommodating a defendant’s psychological abnormality in assessing criminal liability. “‘Insanity” terminology has with some frequency been abandoned, even in legislation retaining very traditional formulations of the defense. See N.Y. Penal Code 0 30.05. No generally accepted substitute terminology has developed, however. The Model Penal Code suggests the descriptive but rather awkward label, ‘Mental Disease or Defect Excluding Responsibility.” Model Penal Code S 4.01 (P.O.D. 1962).

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cases the trier of fact would be permitted to find that the defendant was, at the time of the offense, impaired in a manner that affects criminal responsibility but that the impairment’s effect was not such as to justify exculpation. Again, this impairment might be such as to affect the defendant’s ability to understand the illegality of his conduct, to understand its ethical or moral implication, or to exercise conscious control over his desire to engage in it. There are at least two approaches to providing for the effect of such a finding. The finding might affect only the penalty to be imposed.4 Thus it might require that the penalty be no more than two-thirds the penalty that would otherwise be imposed, or the doctrine might simply require that the finding be considered by the sentencing authority in making a discretionary sentencing decision. In the alternative, the finding might require a reduction in the grade of the offense of which the defendant is convicted. Under traditional statutory provisions, this approach would be difficult or impossible to implement. But a large number of American jurisdictions have adopted statutory frameworks in which all criminal offenses are categorized into several groups for purposes of assigning penalties. Under such frameworks, a finding of reduced or “diminished” responsibility could easily require that the offense be regarded as subject to the next lower penalty. The argument for such a doctrine of diminished responsibility is deceptively simple. Severity of penalty and of the formal condemnation reflected in the offense of which a defendant is convicted, it runs, should reflect the moral or ethical culpability of the offender. Those impairments that affect culpability vary in degree. It is desirable, therefore, that the criminal law provide a mechanism for giving effect to impairments that reduce but do not eliminate culpability.5 While reduced culpability might to some extent be accommodated in making discretionary sentencing decisions, this is insufficient for at least two reasons. First, it is desirable that the formal designation of the convicted offense as well as the penalty reflect reduced culpability. Second, there is too great a risk that relegating reduced culpability to the low-visibility sentencing process will result in it being given no actual effect. Assuredly, there will be a formal claim that it was among the factors considered in penalty assessment. But in fact, it will often have no actual impact upon the penalty assessed. The arguments against diminished responsibility are more complex. To some extent, they are probably beyond empirical scrutiny. It can be argued, for example, that diminished responsibility would impair the ability of the criminal sanction to achieve its preventive impact. The doctrine might remove some deterrent threat directed at potential offenders who, although impaired, could be deterred. In addition, the message that such partial excuses would be accepted might reduce the educative preventive effect of criminal punishment. But whether this can be demonstrated or even meaningfully investigated is at best problematical. Morse argued that the doctrine is unnecessary because impaired offenders who are not insane “are sufficiently responsible for their behavior to be held account-

‘See Dix, at 333-34, urging that triers of fact be authorized to find that an offender’s culpability was substantially reduced and that upon such a finding a sentence less than the statutory maximum be mandated. ‘Arenella. at 849: Morse. at 272-73.

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able for the crimes they commit.“6 Apparently he meant that impaired offenders who retain some ability to control their conduct or to perceive its moral or legal nature are sufficiently responsible that no need exists to accommodate their abnormality. As he acknowledged, this argument rests on an assumption concerning the degree of impairment that justifies or demands accommodation in assigning accountability. This, in turn, is a moral-perhaps intuitive -conclusion that cannot be made a matter of empirical proof. Other arguments against diminished responsibility, however, are more factually based. These can be more usefully discussed and perhaps even subjected to empirical verification. Assuming that some offenders are so and sufficiently impaired that their culpability is affected in a manner that ought to be accommodated, it has been argued that identifying those offenders is a task that cannot be effected in a “consistent,” “principled” and - it would be well to add-accurate manner.’ The post-M&&y debate on insanity has raised sensitivity to the practical problems in making the sorts of distinctions that are conceptually of great moment. Prolonged inquiries into responsibility that cannot give rise to anything better than a speculative response by the trier of fact are financially costly. They may further increase the disrepute in which some and perhaps many citizens hold the criminal justice system. It may well be that difficulties in implementing diminished responsibilityevaluated pursuant to the post-FCzckley sensitivities-are entitled to more weight than has often traditionally been given them. In addition, diminished responsibilityif it could be effectively implemented might unacceptably impinge upon the societal interest in self-protection. In many, most, and perhaps all cases, a demonstrated impairment that reduced an offender’s culpability would also show that the offender is exceptionally more likely to engage in similar conduct in the future. When an insanity defense is successfully raised, the “acquitted” offender is subject to at least the possibility of postacquittal detention that will protect society from him. Diminished responsibility, however, would shorten the period during which the offender could be preventively detained without in any way providing a substitute method of protecting society.8 Whatever the merits of these considerations, Anglo-American law has not looked favorably upon diminished responsibility. The English Homicide Act provides for diminished responsibility in homicide, but was enacted to accommodate the special problem presented by lack of sentencing discretion for murder.’ But there has apparently been little serious effort to expand the doctrine to other areas where sentencing discretion permits impairment to be considered in determin‘Morse, at 296. ‘Arenella, at 857. “See Arenella. at 857. This is not a new dilemma for the criminal law. The same problem is posed by the argument that a distinction should be drawn between impulsive and premeditated killings. Impulsiveness may suggest that the offender was-comparatively speaking-less blameworthy. But it may also suggest that society requires more protection from him than from other persons who have demonstrated a willingness to kill after premeditation. Cf. Wechsler and Michael, A Rarionale of rhe Law of Homiade, 37 COLUU. L. REV. 701, 1281-82 (1937).

“English Homicide Act of 1958, 5 & 6 Eliz. 2, c. I I. 9:2. See, e.g., Dell, Diminished sidered, [I9821 GRIM. L. REV. 809 (hereinafter cited as “Dell”).

Responsibility

Recon-

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ing penalty. lo No American jurisdiction has adopted diminished responsibility as it has been defined here,” although it has found some favor in Europe.” Whether the American position reflects full consideration of the doctrine on its merits is uncertain. The issue has been largely ignored as a matter of legislative concern and the pervasive impact it would have upon numerous legislatively defined crimes has undoubtedly discouraged serious judicial consideration of it.13 Diminished

Responsibility

in Capital Sentencing

Statutes

A series of decisions by the United States Supreme Court has, to some extent, constitutionalized the procedure for determining whether a convicted defendant should be sentenced to death.“’ While the precise contours of the Eighth Amendment requirements are not clear, it seems relatively certain that a convicted defendant is entitled to present and to have the sentencing authority consider any information of reasonably mitigating significance. I5 This includes evidence that at the time of the capital offense the defendant was impaired by reason of psychological abnormality. Jurisdictions differ on whether the capital sentencing decision may or must be made by a jury. A wide variety of procedures exist; Florida, for example, provides for an advisory verdict by a jury but authorizes the trial judge to make the ultimate life-or-death decision.16 Whether the evidence of psychological impairment is submitted to a jury or the sentencing judge, then, depends upon the procedure adopted in the particular jurisdiction under consideration. A method of structuring capital sentencing that is frequently used involves the statutory identification of possible mitigating (and aggravating) considerations. In a significant number of jurisdictions, the mitigating circumstances so identified by statute include one or more that might encompass psychological abnormality. One type of mitigating circumstance of this sort is illustrated by that portion of the Florida statute under which it is a mitigating circumstance that: The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Many capital sentencing schemes, however, contain-sometimes

in addition -

‘“See Dell, at 817. Such an expansion was urged in Walker, Butler v. The CLRC and Others, [1981] GRIM. L. R. 596, 597 (hereinafter cited as “Walker”). “A number of jurisdictions have, of course, provided by statute or case law that defendants may introduce evidence of psychological impairment and expert testimony in an effort to persuade the trier of fact that the prosecution has failed to prove that the defendants acted with the state of mind required by the crime charged. But as is explained in the text, this is in no meaningful sense “diminished responsibility.” “S. KADISHand M. PAULSEN,CRIMIXALLAW AND ITS PROCESSES612 (3rd ed 1985) (German criminal code provides for reduced punishment if defendant’s responsibility was severely reduced at the time of his conduct); M’alker, at 597 (Italian law provides for reduction of length of prison sentence by showing of a “partial defect of the mind”). “See Dix, at 320. “E.g., Gregg v. Georgia, 428 U.S. 153 (1976); Furman v. Georgia, 408 U.S. 238 (1972). “See Enmund \. Florida, 102 S.Ct. 3368 (1982); Lockett v. Ohio, 438 U.S. 586 (1978). jeFfa. Stat. Ann. $ 921.141 (West 1983 supp.). “Fla. Stat. Ann. $ 921.141(6)(b) (West. 1983 supp.).

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a provision that more specifically relates mitigation to criminal responsibility. The Florida statute, for example, also specifies that it is a mitigating consideration that: The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.18 Some provisions specifically differentiate between the diminished responsibility of mitigating significance and the absence of responsibility that constitutes a defense to the charge. The Arizona statute, for example, adds to language similar to the Florida provision’s terminology that the defendant’s capacity “was significantly impaired, but not so impaired as to constitute a defense to prosecution.“19 In jurisdictions where impairments of volition as well as those of cognition can constitute a basis for the defense of insanity, provision is sometimes made for defects of either sort to serve also as mitigating considerations in capital sentencing. Such capital sentencing statutes provide for true diminished responsibility. Impairment that will mitigate is the same sort of impairment as will exculpate - impairments of understanding or of control. The difference between exculpation and mitigation is only one of degree of impairment. Exculpation requires that the defendant’s capacity to appreciate or conform was totally or perhaps “substantially” lacking; mitigation, on the other hand, requires only “substantial impairment” of either of these capacities. This is true, for example, in California.20 In other jurisdictions, diminished responsibility under these provisions can be based upon a broader range of impairments that can serve as the basis for the defense of insanity. In some, the defense can-in theory at least - rest only upon an impairment of the defendant’s cognitive capacities. But under provisions such as those set out above, arguments in capital sentencing mitigation can rest upon defects of either cognition or volition. This is the case in Arizona and Florida. Both jurisdictions adhere to the McNaughten formulation of the insanity defense, which limits the defense to cognitive impairment. But in both jurisdictions it is a mitigating consideration in capital sentencing that the defendant’s capacity to conform to the law was “substantially” (Florida) or “significantly” (Arizona) impaired. In jurisdictions of this sort, mitigation in capital sentencing is permitted or required because of impairments of a type-impairments of volition -that cannot serve as the basis for exculpation. Strictly speaking, then, the provisions do not simply direct inquiry into the degree of impairment but also require consideration of the nature of the impairment. Since responsibility can be reduced on the basis of impairments which, because of their nature, cannot serve to exculpate, these schemes arguably provide for a process that differs significantly from general diminished responsibility proposals. “Id.,

at 0 921.141(6)(f).

19Ariz. Rev. Stat. $13-703(G)(l) (1983 rupp.). Tompare Cal. Penal Code 0 190.3(g) (diminished responsibility Cal.3d 333, 149 CAL. REPTR. 275, 583 P.2d 1318 (1978) (expanding pairment).

in mitigation) with Pqople Y. Drew, 22 insanity defense to include volitional im-

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Under capital sentencing provisions of either sort, a finding that the defendant’s responsibility was diminished within the meaning of the mitigating circumstance does not assure any particular impact upon the sentencing decision. Generally, it is clear that the sentencing authority can regard other and aggravating circumstances as outweighing diminished responsibility and other mitigating circumstances and impose the penalty of death. The statutory schemes do, however, attempt to assure that the sentencing authority will consider specifically whether such diminished responsibility has been shown and, if so, that any such showing is given consideration by the sentencing authority in making the final-and largely discretionary-life-or-death decision. The provisions in these capital sentencing schemes for diminished responsibility differ significantly, then, from the general provisions for diminished responsibility that have been proposed and considered. But examination of practice under the capital sentencing schemes may be of value in developing information bearing upon the wisdom of broader provisions of the sort that have been proposed. Several aspects of this practice deserve special consideration. First, is the task of distinguishing among nonresponsible, partially responsible, and fully responsible offenders one which juries and judges can make upon “principle,” with reasonable consistency and accuracy, and at a reasonable cost? This may depend upon the actual availability of useful expert testimony. Do mental health professionals offer testimony based upon a discernible and reasonable conceptual basis? Is the testimony of the sort that can be expected to result in reasonable-and “nonspeculative”decisions? If the distinctions can be adequately drawn in the capital sentencing context, perhaps they could be drawn under the sort of general diminished responsibility scheme discussed above. Second, is it possible to effectively integrate a conclusion of diminished responsibility into a largely discretionary penalty decision? If not, the arguments for a general defense of diminished responsibility are somewhat strengthened. Relating the matter to the sentencing stage may simply “sweep it under the rug” in a fashion that gives it no significance. If it is important that reduced culpability be given some significance in the criminal process and if permitting consideration of it in sentencing does not have this result, perhaps it is necessary to provide for it to have a more structured impact upon liability or penalty. Administration of Diminished Responsibility in Capital Sentencing Using reported appellate decisions to examine the grass roots administration of a doctrine is risky at best, given that only (or at least primarily) unsuccessful cases reach the appellate stage. Nevertheless, there is some value in examining the appellate judiciary’s efforts and the hints this provides concerning trial court administration. A few decisions have reaffirmed the nature of diminished responsibility in capital sentencing. In State v. English,21 for example, the Louisiana Supreme Court carefully delineated the distinction between the insanity defense and diminished responsibility. A defendant, the court held, is entitled to an instruction mak-

“367 So.Zd 815 (La. 1979)

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ing clear the difference between the defense of insanity, on the one hand, and diminished responsibility as a mitigating consideration in sentencing, on the other. Moreover, that instruction must make clear the difference between the criteria to be used in resolving the two issues. In State v. Gretz/er,22further, the Arizona Supreme Court made clear that a finding of diminished responsibility does not preclude imposition of the penalty of death. Rather, it constitutes only one consideration bearing upon the appropriate resolution of the life-or-death sentencing issue. In regard to more specific issues, it is useful to consider the developing case law in three regards: the treatment of efforts to assert diminished responsibility on the basis of proof of a major mental illness, similar efforts to assert diminished responsibility on the basis of a condition fitting within the diagnostic concept of “personality” or “character” disorders, and finally the courts’ efforts when diminished responsibility has been shown -to integrate that showing into the general life-or-death sentencing decision. Major Mental Illnesses

Intuition suggests that capital sentencing diminished responsibility would often be invoked in two types of situations both characterized by evidence that the defendant suffered from a major traditional mental illness at the time of the offense. One consists of situations in which there is credible evidence that the defendant suffered from a major mental illness but where, in addition, that evidence failed to show the required nature or degree of impairment. In jurisdictions barring exculpation on the basis of impaired volition, for example, it is reasonable to expect that the volitional impairment would often serve as the basis for a finding of diminished responsibility. A second consists of cases in which the significant evidence of a major impairment was produced but was found insufficiently credible to meet what may, as a practical matter, be defendants’ burden on insanity defense issues. Theories expounded by defense experts, for example, may be found too speculative to justify exculpation. But those same theories may be regarded as sufficiently credible to justify a finding of reduced responsibility. The cases in which the appellate reports indicate that capital defendants relied upon evidence that they suffered from such a major mental illness, however, present a more mixed bag. Several Florida cases suggest that diminished responsibility based upon evidence that the defendant suffered from a major mental illness has been used by the Florida Supreme Court in part at least to justify results strongly dictated by other considerations. In Huckaby v. State,23 for example, the court invalidated a death sentence for rape of a child citing but not discussing in detail the “almost total agreement” that the defendant’s sexual assaults on children were caused by the defendant’s mental illness for which he had been hospitalized. Yet it seems clear that serious constitutional doubts as to the validity of the death penalty for nonhomicide offenses were a primary concern of the appellate tribunal.

“135 Ark.

42, 659 P.2d

“343 So.Zd 29 (Fla.

I (1983).

1977).

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In several other cases, the Florida court relied upon evidence of diminished responsibility in striking down a trial judge’s decision to impose the penalty of death over the jury’s recommendation of life imprisonment. These cases show little effort to critically evaluate the testimony or to test it against a reasonably clear legal standard. Jones v. StatP is typical. Jones was convicted of the murder of a female postal carrier. The victim had been sexually assaulted and repeatedly stabbed. An insanity defense was rejected by the trial jury which, however, recommended a penalty of life imprisonment. The trial judge imposed death. Reversing, the Florida Supreme Court explained: Appellant had a paranoid psychosis which was undenied and unrefuted, the degree of which no one can fully know . . . [F]or a long time Appellant had believed that persons were attempting to kill him and were following him and that he had other hallucinations. . . . [T]he full degree of his mental capacities at the time of the murder is not fully known, but it is reasonable to assume that this mental illness contributed to his strange behavior.25 Similar analyses were used in Burch v. Sta@ and Cannady v. State.27 In none of the decisions did the court probe the precise nature of the defendants’ claimed impairments or their claimed effect upon the defendants’ decision to commit the offense. This is sometimes troublesome. No reason appears why, for example, if Jones’s killing was a defensively motivated response to paranoid delusions, it included a sexual attack upon the victim. The Florida cases also indicate an uncritical willingness to rely heavily upon a trial jury’s apparent resolution of a diminished responsibility claim. In Jones, Burch and Cannady, the result on appeal was determined by the Florida Supreme Court’s perception that the trial judge should not have disturbed the “advisory” juries’ determination that diminished responsibility existed and that the totality of the circumstances, including this diminished responsibility, indicate that the death penalty is inappropriate. The Florida cases, then, strongly suggest an appellate court willingness to seize upon diminished responsibility as a means of articulating a result strongly influenced by other considerations. Huckaby’s result, for example, was undoubtedly affected by the court’s hesitancy to address the constitutional propriety of the death penalty for a nonhomicide offense. The results in Jones, Burch and Cannady must similarly have been influenced by the court’s general perception that the largely intuitive life-or-death decision, once “made” by a jury, should be overruled by a single trial judge only in exceptional situations. Diminished responsibility, because of its fluidity, lent itself well to this task. Yet this does not bode well for the doctrine as a determinant of rational decision making. Apart from these Florida cases, the appellate case law makes clear that in at least a significant number of cases trial juries and judges have been willing to “332 So.Zd 615 (Fla. “332 So.2d at 619. ‘6343 So.?d 831 (Fla. “27

So.2d

723 (Fla.

1976). 1977). 1983).

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impose the death penalty despite evidence that the defendant suffered from a serious traditional mental illness at the time of tile offense.28 American appellate tribunals have been reluctant to disturb death sentences despite evidence that the defendant suffered from even major traditional mental illnesses. Whether and how much significance to give to such considerations has been left largely to the sentencing authority, especially where the trial evidence concerning the existence or effect of mental illness was in conflict. In State u. Evans,29 for example, the Arizona Supreme Court affirmed a penalty of death despite expert testimony that a “strong possibility” existed that on the day of the offense the defendant may have suffered from schizophrenia which impaired his ability to conform to the law. Similarly, in Gall v. Commonwealth,30 the Kentucky Supreme Court affirmed a death penalty where defense testimony suggested that the defendant was a paranoid schizophrenic (but with periods of remission) and the state’s expert reported no evidence of this disorder. Nevertheless, the case law presents disturbing suggestions of inconsistency of approach among courts and cases. In Mines v. State,31 the defendant was shown to have murdered a woman who was found bound and stabbed. Before his apprehension, Mines had taken a hostage. He was found incompetent to stand trial but upon improvement was tried and convicted over an unsuccessful effort to assert the defense of insanity. Vacating the penalty of death imposed by the trial judge sitting without a jury, the Florida Supreme Court found that the expert testimony was uncontradicted that Mines suffered from paranoid schizophrenia. No effort was made to explore the relationship of this condition or its symptoms to the offense; instead, the court simply and uncritically stressed that Mines’s mental condition had been severe enough to require a finding of incompetency to stand trial. It is difficult to reconcile Mines with Waters v. State,32 decided by the Georgia Supreme Court in 1981. In 1980, Waters killed two women after sexually assaulting them at an isolated fishing spot. The evidence showed that he had been treated for mental illness since 1978; this treatment included administration of thorazine and mellarin. After committing the murders but before being arrested, he was again treated at a mental health clinic and was given prolixin decanoate. There was testimony that he had not taken the prescribed medication for some time before the killings. Affirming the death sentence, the Georgia court faileddespite the evidence in the record-to explore in any meaningful way the possibility that Waters’ responsibility may have been significantly diminished. The appellate case law, then, suggests that evidence that a defendant suffered from a traditional serious mental illness is sometimes given substantial-almost YInfortunately, the appellate case law provides little access to information concerning those cases in which the sentencing authority, in reliance upon evidence of the defendants’ abnormality, opts for a penalty other than death. “124 Ariz. 526, 606 P.2d 16 (1980). I0607 S.W.Zd 97 (Ky. 1980). “390 So.Zd 332 (Fla. 1980). “248 Ga. 355, 283 S.E.2d 238 (1981). Georgia, unlike many other states, has no specific list of statutory mitigating circumstances such as diminished responsibility. But to the extent that consideration of reduced responsibility is an Eighth Amendment requirement, the absence of an implementing statutory provision should not be controlling.

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uncritical-significance in mitigation of a capital offense. On the other hand, such evidence sometimes appears to have been seized upon as a convenient justification for results strongly dictated by other considerations. But there is certainly little indication of a consistent and principled consideration of reduced responsibility in capital sentencing. In some cases, it is virtually - and again uncritically - ignored for all practical purposes. Personality Disorders Testimony in mitigation of sentences offered in capital proceedings frequently includes the assertion that the defendant suffered from a condition that under current diagnostic practice would be labeled a personality or character disorder.33 Such evidence presents problems that deserve special attention. In general, the appellate case law reflects a lack of sympathy for and sometimes even hostility towards such evidence offered in support of a claim of diminished responsibility. This is most evident in a series of Arizona cases. In 1976, the Arizona Supreme Court in State v. Richmond34 held that as a matter of law character or personality disorders could not constitute the basis for mitigation under the state’s diminished responsibility mitigating circumstance. Five years later, however, the court recognized in State v. Vickers,35 that federal constitutional considerations demand that sentencing judges be free to give such testimony mitigating significance. Nevertheless, the court adhered to Richmond. It held further, however, that evidence of impairments arising from personality disorders could be considered in mitigation by the sentencing judge under his general right to consider mitigating evidence that does not correspond to any of the statutorily defined mitigating circumstances. This right to have such impairment considered on a “second class” basis has been enforced. In State v. McMurtrey,36 for example, the appellate court required resentencing because the trial judge remarked that his understanding was that the state’s case law provided that conditions characterized as character defects could not be considered in mitigation. This hostility towards reliance upon impairments arising from personality disorders is not limited to Arizona. In Sireci v. State,37 for example, the Florida Supreme Court rejected the defendant’s argument that the trial judge had failed to give sufficient weight to defense evidence showing the defendant’s mental or emotional problems: [A]ny psychological or emotional disorders of the defendant were, at most, personality disorders. Personality disorders were described [in the trial testimony] as the least serious of all disorders.38 “See Dix, Participation by Mental Health Professionals in Capital Murder Sentencing, PSY. 283 (1978). “114 .4riz. 186, 560 P.2d 41 (1976). “‘129 .4riz. 506, 633 P.2d 315 (1981). ‘6136 Ariz. 93, 664 P.2d 637 (1983). “399 So.Zd 964 (Fla. 1981). “399 So.Zd at 971.

1 INTER. J. L. &

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The same attitude

E. DIX

was expressed

indirectly by the Mississippi Supreme Court in its decision to affirm the death penalty in that case, the court commented that the defendant was examined by “competent medical authorities” and “was found to be without psychosis.“‘O The unstated assumption, of course, was that an impairment not justifying diagnostic classification as a psychosis did not raise serious issue as to the defendant’s responsibility, even in the capital sentencing diminished responsibility context. In part, this apparent judicial attitude towards personality disorders stems from a perception that such disorders seldom have a demonstrable effect upon what the law assumes are the determinants of particular human behavior-the actor’s perception and volition. Sometimes little or no effort is made by expert witnesses to address the impact of what the expert believes was the defendant’s abnormality upon the “causation” of the conduct at issue. In Ruiz v. State,” for example, the experts testified that the defendant suffered from certain personality disorders and then discussed the emotional pressures “typically” accompanying these disorders. In explaining why the trier of fact could have rejected this testimony, the Arkansas Supreme Court noted that the witnesses did not testify that the emotional pressures described were experienced by the particular defendants whose conduct was at issue in the case.42 But even where efforts are made to address the effect of such impairment upon the defendant’s own conduct, the issues are sometimes nevertheless not usefully joined. In State v. Smith,43 for example, the defendant was convicted of killing two women. The prosecution’s evidence showed that he had sexually molested and tortured them and then killed them by forcing dirt into their mouths causing their suffocation. Two expert witnesses testified that Smith was properly diagnosed as a “borderline” or “border-type psychotic’ person and that his behavior was “compulsive” conduct over which he had “little control.” A psychiatrist called by the prosecution then testified that Smith had no mental illness or psychiatric disorder. He continued:

Tokman v. State.3q Explaining

I did not feel any term like “compulsion” was appropriate or suitable to the occasion. What I would mean by “compulsion” would perhaps be different from the term used by another doctor, but in my interpretation of that term [Smith] did not have a compulsion, that is, an intense drive which he would not resist or which he could not overcome. The trial court found that evidence failed to show diminished responsibility. On appeal, the Arizona Supreme Court acknowledged that if it was compelled to believe the defense experts, it would have to conclude that diminished responsibility existed.

‘?435 So.Zd 664 (Miss. “‘435

1983).

So.Zd at 672.

“617

S.W.Zd

6 (Ark.

“617

S.W.Zd

at 12.

“131

Ariz.

1981).

29. 638 P.2d 696 (1982).

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The appellate tribunal, however, characterized the witness called by the state as “lucid” and “positive” in contrast with the “inexplicit and often equivocal” testimony of the defense experts.44 In light of this, the trial court could properly have credited only the former. But the court’s conclusion that the prosecution’s witness was “lucid” is at best questionable. His definition of compulsion suggests he was addressing only the existence of an “intense drive” which Smith was totally unable to “resist.” He was not pressed to address whether Smith’s condition might have increased the difficulty of resisting what Smith perceived to be an intense desire to commit the offenses at issue. What the appellate tribunal apparently found attractive was the witness’s unqualified and “positive” conclusory opinion. Yet there is reason to believe that the opinion had these characteristics only because it failed to consider the subtle questions of gradation that are inherent in a viable consideration of a claim of diminished responsibility. With substantial frequency, the appellate courts have simply refused to secondguess trial judges and juries that have declined to give diminished responsibility claims based on personality disorders’ controlling or even significant effects. This approach is illustrated by Fitzpatrick v. State,45 in which the 20-year-old defendant took hostages as part of an apparent scheme to rob a nearby bank. He was convicted of the murder of a police officer killed during an effort to rescue the hostages. There was evidence that as a juvenile he had been hospitalized for psychiatric reasons; more recently, he had repeatedly-and apparently unrealistically - sought patents on certain “inventions.” A psychiatrist testified that Fitzpatrick was properly diagnosed as a schizoid personality. Another expert witness described him as of dull normal intelligence with grandiose thinking, and continued: [H]is thinking was indeed impaired and that impairment according to a degree, was relatively severe, not so severe that he did not understand the consequences of his actions, but severe enough that in my opinion [it] played a part in his acting very impulsively without proper forethought and setting himself up again and again for failure and punishment. Affirming the sentence of death, the Florida Supreme Court eschewed any extended discussion. Rejecting the argument that the expert testimony established sufficient mitigating considerations to preclude the ultimate penalty it simply explained: All of this testimony was considered and rejected by both the jury and the judge. That decision was theirs and not ours to make. Since there was nothing in the record to indicate that their conclusions or the methods followed in reaching them were wrong, we accept their conclusions.46

“131 Ark. at 34. 638 P.2d at 701. “437 So.2d 1072 (Fla. 1982). ‘b437 So.2d at 1072.

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Overall, the appellate case law makes clear that claims of diminished capacity are often supported by expert testimony which, in turn, involves a diagnosis of personality or character disorder. With some frequency, however, the testimony is in general terms and fails to present to the sentencing authority specific versions of how the defendants’ impairment might have affected their decisions to engage in the criminal conduct. The experts, the case law suggests, may have no frame of reference for addressing this. Whether capital sentencing juries and judges give such evidence substantial mitigating significance cannot be determined from the appellate case law. But the suggestion, at least, is that they do not. In any case, appellate tribunals have been quite unwilling to interfere with sentencing authorities’ decisions to impose death despite such evidence. Sentencing (and appellate) authorities may seldom be convinced that conditions which under current diagnostic practices are designated personality disorders had a sufficient impact upon a defendant’s conduct to justify reducing his blameworthiness. Or, any such mitigating effect as they may find established may be of minor significance as compared to other aspects of the offenders’ conduct that bear upon the reprehensibility of that behavior. Integration into Sentencing To the extent that diminished responsibility is found under the capital sentencing procedures here under discussion, that conclusion must be integrated with other relevant considerations into the final sentencing decision. In this context, that decision is the life-or-death one. How-and how effectively-is this integration accomplished? First, there is no suggestion in the case law as to any useful approach to the integration process. To the contrary, the overwhelming tendency has been to dismiss the task as one of sentencing discretion not subject to appellate scrutiny. Second, where some effort has been undertaken to review and therefore evaluate the integration process, that effort has arguably been quite naive. Because of the nature of the cases before them, the issue as posed to appellate courts has been primarily whether sentencing judges or juries erred in imposing death despite evidence of the defendants’ abnormality. Where defendants have relied upon evidence that their conduct, although superficially appearing to be rational, goaldirected behavior, was in fact influenced by pathological factors, the appellate courts have been extremely reluctant to find that sentencing authorities erred in rejecting the defense contentions and imposing the penalty of death. If there is evidence of a conscious motive that appeared to be related to the offense, this has been generally - and perhaps uncritically - regarded as offsetting other evidence of impaired responsibility. State v. Smith*’ provides an example. Smith abducted three female cheerleaders from a local college; he raped and killed one. Sentencing testimony indicated that he had an antisocial personality and, as a result, his capacity to conform to the law and to appreciate the criminality of this conduct was impaired. He had been unable to maintain employment and had once attempted suicide. During a prison term, he had been homosexually assaulted. His sexual abnormalities in“292

S.E.Zd

264 (N.C.

1982).

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eluded aggressive fantasies, peeping, and “cross-dressing.” He perceived himself as inferior and was extremely sensitive to rejection by women. The jury apparently accepted at least some of the expert testimony, because it found that the killing was committed under the influence of a mental or emotional disturbance. It declined, however, to make the additional finding of diminished responsibility and determined that death was the appropriate penalty. Upholding the jury’s action, the North Carolina Supreme Court relied heavily upon circumstances indicating a deliberate plan to fulfill certain sexual desires, recognition and adjustment to obstacles that developed, and constant awareness on Smith’s part of the “legal implications” of his actions. It noted his selection of a secluded spot to which to take his victims, his removal of his fingerprints from the car in which he abducted them, his speculation to his victims concerning their ability to see him well enough to identify him, his “callously” telling the murdered victim that he could put her out of her misery, and his attempt to conceal the victim’s body by anchoring it with a cinder block and putting it in a pond. The trial jury’s actions make clear that it had accepted the evidence that Smith was impaired and that his conduct was influenced by his abnormality. This conclusion, however, apparently had little effect upon its final life-or-death decision. Whether the jurors’ mental processes were similar to those articulated by the appellate judges is, of course, uncertain. But it seems likely that there was substantial coincidence. To the extent that this is the case, both the trial jury and the appellate court were unwilling to give meaningful significance to expert testimony if the defendant’s conduct appeared to be minimally rational goaldirected behavior. Where the evidence suggests both conscious goal-directed conduct and pathological influences, the defendant’s conduct is evaluated as freely chosen goal directed behavior. Such a choice, of course, eliminates the task of attempting to integrate the two types of evidence-one suggesting blameworthy and dangerous behavior and the other suggesting reduced culpability. This reluctance to address the task of carefully integrating reduced responsibility with the other considerations relevant to penalty determination may be the product of an unacknowledged conclusion that the task is impossible. This possibility tends to be confirmed by the discussion of the Arizona Supreme Court in State v. Gretz,ler.48 Explaining its conclusion that diminished capacity does not preclude the imposition of the penalty of death, the court addressed the manner in which sentencing considerations other than diminished responsibility might properly indicate a severe sentence. Despite diminished responsibility, the court began, a defendant might nevertheless remain sufficiently culpable that the social interest in pursuing retribution might be served by a severe penalty.4g Nor does it follow from diminished responsibility that the preventive effect of severe punishment could not be served. Despite their reduced responsibility, persons like these defendants may still be subject to deterrence and thus severe penalties may serve specific deterrence. In addition, these defendants’ impairments do not render them so distinguishable from normal persons that their severe punishment cannot be expected to affect these normal persons’ behavior.50 “135 Ariz. 42, 659 P.2d 1 (1983). “135 Ariz. at 47, 659 P.2d at 6. ‘“135 .4riz. at 48. 659 P.2d at 7.

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But most importantly, the court continued, a showing of diminished responsibility does not reduce the societal need for protection from the impaired offenders themselves. Its own appellate decisions involving offenses committed by incarcerated inmates and escapees indicate that even life imprisonment cannot be fully effective. “At some point,” the court concluded, in spite of his diminished responsibility “a violent individual has caused so much harm and destruction of human life that society is entitled to foreclose the possibility of further deprivation.” Although this was not acknowledged by the court, it is inescapable that in many cases the same evidence that demonstrates diminished responsibility will also suggest that the offender poses a continuing risk to society. Thus it will increase the strength of the legitimate societal demand for a severe and incapacitating penalty. This is the most significant dilemma created by diminished responsibility. Diminished responsibility may, despite the Arizona Supreme Court’s Gretzfer analysis, somewhat weaken the retributive case for severity in disposition. Insofar as culpability is a limit upon, as well as a basis for severity in punishment, diminished responsibility even suggests an affirmative need to reduce the severity of punishment. But diminished responsibility seldom weakens the case that can be made on other grounds-such as general prevention - for a severe penalty. It often, on the other hand, strengthens the case that can be made for severity as a means of accomplishing needed incapacitation. The task becomes, then, accommodating the need for reduction of penalty on retributive-culpability grounds against the need for an increased penalty on incapacitation considerations. This may be impossible. If accommodation is impossible, the retributive-culpability considerations seem almost certain to be those that will be sacrificed. The desire for the severity of criminal liability and penalties to reflect the culpability of the offender is a rather vague notion that is to a large extent nonutilitarian. In any case, the matter does not lend itself easily to quantification. How much of a reduction of liability or penalty is suggested by certain conditions (such as diminished responsibility of various sorts) is quite unclear. On the other hand, the justification for incapacitation is immensely utilitarian and increments of severity in terms of death versus imprisonment or additional years of incarceration suggest-perhaps misleadingly so-available methods of appropriately quantifying the demands. Given these considerations, it is perhaps inevitable that what purports to be an effort to integrate diminished responsibility into the sentencing decision for offenders convicted of serious homicidal offenses will almost inevitably result in practical pressure to increase the severity of the penalty. With some clear 2xceptions, the capital cases suggest that defense efforts to establish diminished capacity, if they have any effect at all, will often serve only to increase the pressure upon the sentencing authority to impose the penalty of death. Discussion

American capital sentencing procedures have provided a significant amount of experience with a form of diminished responsibility. What tentative conclusions can be drawn from this experience and what do these conclusions suggest in re“135 Ark.

at 47. 659 P.2d at 6

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gard to the wisdom of a more general provision for diminished responsibility? First, opponents of generalized diminished responsibility have urged that impairments affecting defendants’ responsibility in a manner that does not require exculpation can be adequately accommodated by taking those impairments into account in making discretionary sentencing decisions. This, of course, is what the capital sentencing procedures are specifically designed to do in a somewhat structured manner. Has this been successful? Apparently not. The appellate discussions in which diminished capacity has been found suggest that such a finding is given relatively little weight in making the life-or-death decision. Insofar as this is so, it is probably because other considerations so strongly indicate that severity is justified on other grounds that the largely conceptually based argument for leniency is rather easily overborne. Moreover, the same facts as show diminished responsibility are also likely to support increased severity as a means of implementing society’s interest in incapacitating exceptionally dangerous offenders. In this sense, efforts to show diminished capacity in mitigation of penalty may be self-defeating. Is it likely that the same situation exists in regard to noncapital cases? Is it, in other words, unlikely that reduced responsibility is in fact meaningfully accom.modated in the sentencing process? In general, it seems reasonable to expect that the same situation exists; other considerations and perhaps the very facts showing reduced responsibility may well generate such a strong demand for severity that the offender’s reduced responsibility is given no significant effect at all. The only basis for believing any difference might exist lies in the nature of the offenses at issue. Those homicide offenses prosecuted as capital cases are likely to involve either or both exceptionally reprehensible crimes or exceptionally dangerous defendants. In other situations, it may be that the less extreme nature of the crime or the offender creates less stringent and focused pressure for severity of sentence and therefore leaves more opportunity for mitigating significance to be given to diminished responsibility. This would be at most, however, a matter of degree. It is likely in other contexts as in capital sentencing that relegating diminished responsibility to the discretionary sentencing process is functionally to ignore it. Second, diminished responsibility may require too great a sacrifice of society’s interest in incapacitation to justify whatever the doctrine accomplishes. In capital cases, a strong argument can often be made that abnormal offenders should be put to death because of the extraordinary risk they pose to society. Often, this risk is established or at least confirmed by the same evidence as shows their reduced culpability. If somehow it were possible to assure that reduced responsibility were given mitigating significance, this might well be perceived as accomplished at too great a cost to social protection. Again, perhaps this might not be true in regard to noncapital sentencing. Offenders convicted of capital murder are likely to present the strongest demand for preventive action. Noncapital offenders, on the other hand, may as a general rule present a sufficiently reduced demand for preventive confinement that the dispositional alternatives could be narrowed without excessive infringement upon the need for social protection. But this is questionable. The difference between capital and noncapital murder is often quite minimal. In noncapital cases, it is likely that efforts to show reduced responsibility would be made in those cases where the resemblance to capital cases is the strongest-where the offenses are the most serious and the offenders are the most abnormal and consequently

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dangerous. To the extent that the capital cases suggest an unwillingness to pay the price necessary to implement diminished responsibility, there is reason to believe that at least a similar unwillingness may develop in noncapital cases. Third, the administrative objections to diminished responsibility tend to be confirmed by the capital sentencing experience. Opponents of general diminished responsibility emphasize the difficulty of drawing consistent and meaningful lines distinguishing normal and nonresponsible defendants from those of merely diminished responsibility. Capital sentencing litigation involves such efforts with regard to a limited class of offenders. Does this litigation confirm the concern that the identification of offenders with diminished reponsibility may be too difficult to undertake with reasonable hopes of success? To some extent, yes. The appellate case law provides little basis for confidence in trial judges’ or juries’ ability- or inclination - to carefully and accurately distinguish the partially responsible. Appellate judicial discussions generally suggest that the courts lack any coherent standards for grading responsibility or even for distinguishing the partially nonresponsible from the totally nonresponsible. As far as can be discerned, expert testimony neither offers useful standards for judges or juries to apply nor incorporates such standards as a matter of the experts’ own professional framework. The problems are especially evident in the numerous cases presenting an offender diagnosed by the experts as having a personality or character disorder. Cause and effect relationships -if they exist-are difficult to identify. It is not clear, for example, whether expert testimony might be of higher quality if the witnesses were pressed more strongly. It is also possible, of course, that the low quality of judicial discussions is in part attributable to the courts’ perception that given the nature of the available expert testimony little would be accomplished by honing the conceptual criteria. To what extent is it possible to generalize from these conclusions to criminal cases in general? There is no reason to believe that partially responsible noncapital offenders would be any more easy to define or identify. Nor is there reason to believe that the task would be undertaken more effectively in noncapital cases. To the contrary, the seriousness with which capital prosecutions are taken suggests that the efforts made in those cases reflects the “state of the art,” or at least the best that can reasonably be expected given the realities of the criminal justice system. Insofar as experience in capital cases confirms concerns regarding the criminal litigation system’s ability to identify the partially responsible, it is likely that experience in noncapital cases would be similar. Conclusions It seems quite likely that diminished responsibility as it has been developed in capital sentencing often leads to little more than speculative efforts on the part of the sentencing authority. The major effect of the discussion stimulated by the Hinckfey acquittal has been an increased sensitivity to the costs of such speculative inquiries into offenders’ responsibility. Perhaps, however, the extreme nature of the penalty at issue in capital cases and the attendant need to assure that the penalty is used only where appropriate makes even speculative inquiries into capital defendants’ partial responsibility worth the cost. The limited number of

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capital prosecutions and the prolonged nature of the other issues raised by such cases suggests that the incremental cost of permitting inquiry into diminished responsibility in the capital sentencing context is relatively low. On the other hand, there is little in the capital sentencing cases that supports proposals to make diminished responsibility available to defendants generally. Concerns regarding our ability to make the necessary determinations in a consistent, principled and accurate manner are largely confirmed by experience under the capital sentencing proceedings. Moreover, there is reason to fear that if offenders of diminished responsibility could be effectively identified, reduction of their liability might well unacceptably impinge upon society’s legitimate interest in effective incapacitation of dangerous offenders. If, however, criminal responsibility is to remain an all-or-nothing matter addressed only by the defense of “insanity,” the capital sentencing experience suggests that this must be defended on the basis of the difficulty or impossibility of the inquiry, the inappropriateness of the result, or both. Little reliance can be placed on the assumption that reduced responsibility can be meaningfully accommodated in the sentencing decision. Despite the superficial attractiveness of such an approach, it is quite unlikely that reduced responsibility-if it can be established- will be given any real mitigating significance in determining the penalty to be imposed. Addendum

In Ake v. Oklahomas’, the United States Supreme Court held that in certain circumstances an indigent capital defendant is entitled, as a matter of federal constitutional law, to access at public expense to a competent psychiatrist for purposes of evaluation and possible testimony. Such assistance is required where there is significant reason to doubt the defendant’s sanity or when, at sentencing, the prosecution relies upon psychiatric testimony that the defendant is dangerous in support of its contention that the death penalty should be imposed. Although this is not clear, indigent capital defendants may, under Ake, also be entitled to the assistance of a psychiatrist if there is significant reason to believe that the defendant’s mental condition at the time of the offense constitutes a mitigating consideration for sentencing purposes. If so, the availability of capital sentencing diminished responsibility is likely to attract increasing attention and therefore assume increasing importance in American capital litigation.

"53

U.S.L.\\'.

4179

(1982)