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The "new syndrome excuse syndrome." (creation of criminal defenses based on psychological syndromes)

I Introduction

Behavioral science is on the march. Psychiatrists and psychologists are identifying an ever-proliferating and often bewildering array of new syndromes or disorders. Some have received the clinical and scientific imprimatur of actual inclusion in the American Psychiatric Association's official diagnostic manual, referred to as DSM-IV.(2) Examples of the diagnostically respectable disorders include: "Antisocial Personality Disorder,"(3) "Posttraumatic Stress Disorder,"(4) "Intermittent Explosive Disorder,"(5) "Kleptomania," and "Pathological Gambling."(6) DSM-IV characterizes other categories as "in need of further study" because their existence as discrete psychopathological entities is not yet sufficiently validated to warrant inclusion in the manual.(7) Examples include, "Postconcussional Disorder,"(8) "Caffeine Withdrawal,"(9) and "Premenstrual Dysphoric Disorder"(10) (which was formerly termed Premenstrual Syndrome or PMS and, later, Late Luteal Phase Dysphoric Disorder). Finally, and least respectably, some alleged syndromes have not received general provisional recognition as valid, but are advocated with varying degrees of success by clinicians and researchers who have supposedly identified them. Examples from the last group, which have been chosen from the mental health and legal literatures and from legal cases, where they often arise, include," Battered Woman Syndrome,"(11) "Vietnam Syndrome,"(12) "Child Sexual Abuse Syndrome,"(13) "Holocaust Survivor Syndrome,"(14) "Urban Survival Syndrome,"(15) "Rotten Social Background,"(16) and "Adopted Child Syndrome."(17)

Diagnostic identification, research, and advocacy are unproblematic if they are confined within the mental health professionals' domain. Although the concepts of mental and behavioral abnormality are hotly contested, human suffering is potentially involved, and we will all probably benefit from activities aimed at acquiring valid knowledge of how our mental and behavioral nature is carved at the joints. But swept away by the torrent of science and, alas, pseudo-science concerning alleged new syndromes, many people now suffer from yet another new syndrome that I have identified, or at least given a name: the "New Syndrome Excuse Syndrome." The primary diagnostic criterion for this syndrome is an almost irresistible impulse to use the alleged discovery of syndromes of mental abnormality as good reason to alter the criminal law. Those suffering from the new syndrome include many members of the criminal defense bar, properly seeking any possible purchase to exonerate defendants, legal commentators, some mental health professionals, and some judges and legislatures.

Courts and, less often, legislatures are increasingly inundated with claims that syndromes old and new, validated and unvalidated, should be the basis for two types of legal change. The first is the creation of new affirmative defenses. Examples are claims for the creation of a discrete "battered victim" or "urban survivor syndrome" defense. The second change proposal is the expansion of old defenses: for example, loosening objective standards for justifications such as self-defense.

All too often, I fear, the new syndromes are not sufficiently validated and are the product of unacceptably "soft" science or clinical crockery. Nevertheless, this paper will not discuss the pseudo-science problem. Instead, it will accept the validity of some of the new syndromes or some yet to be discovered syndromes because the legal issues are theoretically and practically important only if claimed new syndromes do have reasonable validity. Consequently, this article win assume away the scientific and clinical problems and will focus on the conceptual difficulties and policy dilemmas the New Syndrome Excuse Syndrome presents.

This article attempts to clear the theoretical terrain to determine how the criminal law should understand and respond to claims that new syndrome evidence warrants the expansion of existing defenses or the creation of new ones. First, it addresses briefly the common misunderstanding about when a new syndrome defense is in fact being used and considers why new syndrome claims are raised when it appears that standard doctrinal approaches, such as the negation of mens rea and legal insanity, are available. The next section explores briefly the justification/excuse distinction and why it matters. Then the article discusses the relation of new syndromes to traditional and proposed excuses and justifications. Clearing the terrain and raising the right questions should be seen as a form of jurotherapy. The article concludes that new syndrome evidence is sometimes relevant to extant justifications and excuses and should be admissible to support traditional affirmative defenses, but new syndromes should not be used to expand or create affirmative defenses, especially justifications.

II The New Syndromes and Standard Doctrinal Claims

Some cases that appear to be seeking the creation or expansion of defenses, in fact, involve standard doctrinal claims. These cases are often misunderstood by the media and the public, and sometimes, alas, by lawyers. The most famous example is probably the "twinkie defense" allegedly raised by the infamous Dan White, the disgruntled former San Francisco Supervisor who was prosecuted for the premeditated murders of Mayor George Moscone and Supervisor Harvey Milk of San Francisco in 1978. In reality, White, who was ultimately convicted of manslaughter, simply used evidence of the psychological effects of ingesting lots of sugary junk food to support a then applicable, standard diminished capacity claim that reduced murder to manslaughter.(18) More recently, the Menendez brothers in Beverly Hills were thought to raise an abused child defense. In fact, they were raising an entirely traditional imperfect self-defense claim, using evidence that their parents had abused them when they were children to support the honesty, but not the reasonableness, of their belief in the need to use deadly force on the occasion.(19) In such cases the mental health evidence may be scientifically or clinically questionable, but, once again, the legal arguments are not novel. A final example of the lack of novelty is the introduction of battered woman syndrome evidence to support traditional claims, such as a self-defense defendant's honesty of belief in the need to use force or a murder defendant's claim that there was cumulative provocation that would warrant conviction only of manslaughter.

Nonetheless, there is an epidemic of the genuine "new syndrome excuse syndrome." Why should this be when there are two good, extant doctrinal means to use evidence of mental abnormality or other background variables to mitigate or avoid criminal liability? These two are the negation of the mens rea required by the definition of the offense, usually improperly called diminished capacity, and the insanity defense. Why aren't these sufficient? Let us begin with the negation of mens rea.

First, contrary to popular belief and the misguided belief of many clinicians who do not understand the legal meaning of mens rea, mental abnormality, including severe mental disorder, rarely negates the mens rea required by the definition of the offense.(20) Mental disorder may give people crazy reasons for doing what they do, but it virtually never negates the defendant's intention, knowledge, conscious awareness of the risk, and other required mental states. In the narrow sense required by the legal definitions of mental state elements, defendants almost always know what act they are engaged in and do that act intentionally. Even severe mental disorder negates mens rea exceedingly rarely. For example, a person acting in response to delusional beliefs and command hallucinations has crazy reasons for acting, but fully intends the conduct that the delusions and hallucinations motivate.

In all my years of researching the relation of mental abnormality to mens rea by examining appellate decisions and by anecdotal and systematic empirical study of tried cases, I have found only two credible examples - one from California(21) and one from England(22) - of claims that all mens rea was negated by mental abnormality. In the California case, an alleged burglar caught in the victim's home with a swagbag of the victim's goods, claimed that he believed delusionally that he was in his own apartment and that the goods belonged to him. If we believe him, and I have my doubts because the defendant was a psychiatrically-savvy graduate of the Brentwood VA hospital, he did not intend either to enter the house of another or to take and carry away the property of another with the further intent to deprive the owner of the property. If we believe the defendant, he cannot be guilty of burglary, or even of criminal trespass. In the English case, the defendant left a supermarket with goods she had not paid for. Charged with shoplifting, the defendant claimed that she did not intend to steal. Rather, she was depressed and therefore absentminded, and, as a result, had left the store unaware that she possessed items she had not purchased. Again, if we believe the defendant, she cannot be guilty of theft because she had no intent to take and carry away the property of another with the intent to deprive the owner of the property. These, however, are the only cases of the negation of all mens rea that I have found in the reports and I have never seen or heard of another credible case for the negation of all mens rea in my experience as a legal consultant and forensic psychologist.

On occasion, evidence of mental disorder may make credible the claim by a defendant charged with premeditated intentional killing that he or she did not premeditate. For example, the defendant might claim credibly that a killing that appeared premeditated was actually committed on "the spur of the moment" in response to a command hallucination or delusion. But even these cases are exceedingly rare and observe that intent is not negated: the hallucination or delusion furnished the reason to form the intent to kill. Once again, serious mental disorder often gives people crazy reasons to form intentions, to know what they are doing or the like, but it does not negate mens rea. In such cases, the insanity defense, not the negation of mens rea, is the appropriate defense. So, in sum, negation of mens rea claimants face an immense factual obstacle.

I believe that fundamental fairness requires permitting defendants to use any credible evidence to cast doubt on the prosecution's prima facie case, including the presence of the mens rea. About half the jurisdictions in the United States do allow the introduction of such testimony. For example, all federal courts of which I am aware have interpreted the Insanity Defense Reform Act of 1984, correctly in my opinion, to permit defendants in appropriate cases to use evidence of mental abnormality to cast doubt on the accusation that the mens rea element was present. The current difficulty, which new syndrome evidence threatens to perpetuate, is that courts in jurisdictions that rightly are willing to consider such claims in appropriate cases are awash with negation claims that are fanciful or absurd.(23) Although such claims arise frequently, they seldom benefit defendants. Because mental abnormality seldom negates mens rea, judges sometimes exclude the abnormality evidence or refuse to give negation of mens rea instructions. Furthermore, juries routinely, sensibly reject negation claims, even when the issue is left to them. Consequently, negation of mens rea claims hold little hope for new syndrome defendants, and thus they seek the creation of new doctrine.

Although defendants do not often succeed with negation of mens rea claims based on mental abnormality, the risk of jury confusion persists and scant judicial resources are wasted. Few of these claims should have been tried because they were simply implausible on any reasonable view. Although some trial judges are skeptical, too often they are literally hornswaggled by incredible claims about the negation of mens rea. How could mental health professionals testify that a defendant lacked intent or premeditation when intent was obvious, and why do judges let the testimony in or give negation of mens rea instructions? I have no easy answer to either question, but believe the behavior of the mental health professionals is best explained by confusion about the meaning of mens rea, venality, or both. As for judges, the likely answers are that they become disoriented by the psychiatric pixie dust, they are risk-averse and prefer the reversal-proof choice of admitting the evidence and giving instructions, or both. In any case, these claims re fully tried far too frequently, and if the criminal law is to entertain the possible admission of extensive mental health evidence on the mens rea issue, trial judges must discipline themselves, the defense bar, and the mental health professionals to discourage bogus new syndrome claims from arising in the first place. The new syndromes, like traditional disorders, rarely will negate mens rea.

A second reason why negation of mens rea claims is not a successful strategy is that, as a result of fears for public safety and other concerns, those states that permit the admission of evidence of mental abnormality to negate mens rea typically place strict restrictions on the defendant's ability to do so. The classic example of this is the distinction between so-called specific intent, which the law allows to be negated, and general intent, which the law does not allow to be negated. Thus, for factual and doctrinal reasons, the negation of mens rea will rarely support a successful claim for the new syndrome suffering defendant.

What about the insanity defense, however? Why is it not good enough? Here there are many reasons that lead advocates to pursue the creation and expansion of defenses rather than to rely on legal insanity, but four are paramount. First, many of the new syndrome suffering defendants are clearly not legally insane by any of the traditional tests, even if the new syndrome has been generally accepted as valid. For example, as recent research shows, many defendants reliably diagnosed as suffering from Posttraumatic Stress Disorder are simply not sufficiently out of touch with reality to convince factfinders that they are legally insane.(24) Indeed, what is generally striking about virtually all the new syndromes is that they are extremely rarely associated with or characterized by a massive, psychotic break with reality. Most allegedly involve mood or conduct problems, impaired judgment and reasoning, and other lesser forms of psychopathology. I do not mean to belittle the problems and pain the various new syndromes may produce. But the amount and type of psychopathology associated with them is not only fully consistent with the formation of mens rea, it is also only rarely sufficient to justify a colorable claim of legal insanity. Once again, the syndrome sufferer has a large factual burden to overcome, even if the pathology is diagnostically respectable.

Second, many of the new syndromes have not been recognized, and therefore courts reject or juries are unusually wary of a proferred insanity plea because there is no recognized mental disorder to support it.

Third, there is no generic partial responsibility doctrine, a type of lesser insanity defense, applicable at trial, that would allow a less than fully normal but legally sane defendant at least to mitigate guilt and punishment. Some tradtional doctrines, such as the provocation/passion formula or the Model Penal Code's "extreme emotional disturbance" provision, both of which reduce intentional homicides from murder to manslaughter, are in fact partial responsibility doctrines that some syndrome sufferers could use. But such doctrines are limited to mitigating murder to manslaughter and do not totally exonerate the defendant. Of course, mental abnormality can be used to argue for reduced sentences, but in such cases the defendant has been convicted and the ability to succeed with such arguments is always in doubt.

The fourth and last reason that insanity will not do is that, in some cases, advocates claim that the syndrome suffering defendants' conduct should be justified, rather than excused, and the insanity defense is clearly an excuse. For example, advocates for battered woman who kill in circumstances that would not support a traditional self-defense claim - and here I should say that most battered women who kill do so during a confrontation(25) - often try to justify the killing as an act of self-defense, rather than as the excusable conduct of an irrational syndrome sufferer. So, the insanity defense, an excuse, will do no good, and a new syndrome justification or the expansion of traditional self-defense doctrine is necessary.

In conclusion to this section, traditional doctrines, although seemingly relevant, are not in practice helpful to new syndrome sufferers seeking exoneration or mitigation. Therefore, let us now turn to the New Syndrome Excuse Syndrome sufferers' attempt to alleviate their juropathology by expanding old doctrines or creating new ones.

III The Justification/Excuse Distinction and Why It Matters

The justification/excuse distinction is one of the most important issues modern criminal law thought has addressed. Briefly put, an otherwise wrongful act is justified if, under the specific circumstances, society and the law believe it is right because it is the lesser evil. The harm-doer is a morally accountable agent whose action is permissible and often desirable under the circumstances. Justification depends on an objective standard that focuses on the rightness of the conduct. Self-defense is the classic example, with the reasonableness standard for belief in the need to use defensive force operating as the socially objective component. Any theory of punishment, whether purely retributive, purely consequential, or a mixed theory, would hold that punishing a morally responsible agent who has done the socially right thing makes no sense.

In contrast, an excuse obtains when a wrong has been committed, but for some reason the agent is not morally accountable for his or her deeds. Here the standard is subjective, focusing on the attributes of the agent that deprived him or her of responsibility. Legal insanity is the classic example. The legally insane defendant has done wrong, but typically was not sufficiently rational to deserve blame and punishment. Here, one's theory of punishment may have a profound effect on the establishment and scope of excuses, and there can be a tension between retributive and consequential concerns. For example, fears for public safety and the desire for maximal deterrence may lead legislators and judges to narrow or abolish excuses on consequential grounds even if there is serious concern that doing so may lead to punishment of agents whose moral responsibility is questionable.

As Kent Greenawalt demonstrated so persuasively in his 1984 article,(26) the border between justification and excuse is sometimes perplexing or hazy. For example, is the honest and reasonable but mistaken defender's defensive conduct justified or excused? Despite such difficulties, it is nonetheless important to try to keep the distinction as clear as possible for many reasons. Here are some.(27) First, the law is a teacher that sets moral and social standards. As a practical matter, this is admittedly a romantic notion, but it is widely held and normatively correct. Second, the distinction encourages doing right and deters doing wrong. Third, the characterization of a defense may substantially alter the outcome to the accused: the justified defendant goes entirely and appropriately free; the excused defendant may be subject to civil or quasi-criminal interference with his or her liberty because he or she may continue to be non-responsible and dangerous.

With this important distinction in mind, let us turn to the relation between the new syndromes and claims about affirmative defenses.

IV New Syndromes and the Excuses

It is natural to begin with excuses because the new syndromes are abnormalities and abnormalities are usually excusing conditions that bear on the accused's responsibility, rather than objectively justifying conditions that make otherwise wrongful conduct right under the circumstances. Assume that the various syndromes identify accurately genuine abnormalities. The general question is why mental abnormality mitigates or negates responsibility. More specifically, what are the appropriate conditions, if any, when such alleged abnormalities should underwrite new excuses or support existing excuses?

I begin with what I believe are common but false starts in the quest for the basis of excuse. The first is what I term "the fundamental psycholegal error," which is the mistaken belief that if we identify a cause for conduct, including mental or physical disorders, then the conduct is necessarily excused. Causation is not an excuse, nor is a cause identical to compulsion, which may be an excuse.(28) Causation does not excuse per se. For example, suppose that I ask the brown-haired members of an audience of professionals to whom I am speaking to raise their hands to assist me with a demonstration. As I know from experience, virtually all the brunettes will raise their hands and I thank them for their cooperation. These raisings are quite clearly human actions, intentional bodily movements, rather than simply the movements of bodily parts in space as, for example, if one had a neurological disorder that produces a muscular spasm that in turn causes one's hand to rise. Assuming that none of the hands rises as the product of neurological disorder, it is clear nonetheless that they are caused to rise by a variety of variables over which the brunettes have no control, including their genetic endowment (being brunette is a genetically determined but-for cause of the hand-raising) and, most proximately, my words. Indeed, the brunettes are every bit as caused to raise their hands as if they had suffered from a neuropathological condition. Now, are the hand-raisers responsible for raising their hands? Do they deserve the "Thank you" I give them for their polite assistance? The answer is that of course they are responsible. Although the conduct is caused, there is no reason why the handraising should be excused.

Presumably all phenomena of the universe are caused by the necessary and sufficient conditions that produce them, so if causation were an excuse, no one would be responsible for any conduct, and we would not be concerned with excusing specific behavior. The discrete excusing conditions that should and do negate responsibility are caused by something, but it is the nature of the excusing condition that is doing the work, rather than the fact that the excusing condition is caused by something. For example, suppose that one of the brunette audience members in the example above generally objects to participating in demonstrations, but also believes delusionally that although failure to raise her hand would not make the world any worse off, raising it would immediately make it a vastly better off place. So, in contrast to her usual response under such conditions, she decides to participate and raises her hand. Would this person be responsible? Perhaps not, but for reasons other than the presence of causation, which does not per se differentiate the delusional from the polite hand-raiser. An equally valid causal story can be told about each. The possible difference is that the delusional person was not rational, and as I shall argue in more detail later, sufficient irrationality is a prime candidate for an excusing condition. Note, finally, that we would excuse the neurologically impaired hand-raiser because the rise, although caused, was not a human action at all. It was simply a bodily movement. In legalese, there was no voluntary act, thus negating a fundamental requirement of the prima facie case.

In sum, if a new syndrome is to support a new or existing excuse, it cannot be simply because the syndrome was part of the causal chain that produced the criminal conduct. The new syndrome, pathological though it may be, will have to produce in addition an excusing condition. Even a highly abnormal cause will not, per se, necessarily excuse. Suppose, for example, that a documentable physical lesion, say a brain tumor, was a but-for cause of criminal behavior. You may remember Charles Whitman, the sniper who killed many victims by shooting at passersby from the top of the tower at the University of Texas. He suffered from a brain tumor, and let us assume that we could demonstrate without question that if he had never had the tumor, he would not have shot. But whether he is nonetheless responsible depends not on the but-for causation, but on his reasons for action. If Whitman believed delusionally that mass murder would produce peace on earth, then he should be excused, whether the brain pathology or childhood trauma or whatever produced the delusion. But if Whitman was simply an angry person who believed life had dealt him a raw deal and he was going to go out in a blaze of glory that would give his miserable life meaning, then he is unfortunate but responsible, whether his beliefs were produced in part by the tumor, childhood trauma, an unfortunate character, or whatever.

Some try to avoid the determinist reductio - that is, that everyone or no one is responsible if the truth of determinism or universal causation underwrites responsibility - by arguing that only some behavior is caused or determined and only that behavior should be excused. This is a position aptly termed "selective determinism" or "selective causation." Thus, for example, the "New Syndrome Excuse Syndrome" claimant might suggest that only the behavior of syndrome sufferers is caused and only such behavior should be excused. The metaphysics of selective determinism are both wildly implausible and, to use Sir Peter Strawson's term, "panicky."(29) To explain why this move is a non-starter would require a lengthy diversion from our primary task, so I shall assert boldly that there are literally no good arguments to support the "selective causation/selective excuse" position.

The conclusion of the discussion of the fundamental psycholegal error is that even if a defendant suffers from a recognized disorder that was in part a but-for cause of the criminal conduct, the defendant is not necessarily excused. The promiscuous use of new syndrome evidence to excuse conduct, often based on the confused notion that causation itself excuses, threatens to undermine notions of personal responsibility that are vital to human dignity and the fair operation of the criminal justice system.

Let us return briefly to the example of the delusional hand-raiser to canvass other false starts in the search for excuses.(30) Many people appear to believe that when a mental abnormality is part of the cause for conduct, the conduct is not intentional, or not a product of the will or free will, or is not resistible, or is not the product of choice. But as the example demonstrates, none of these is a likely candidate for a general explanation of why syndrome sufferers should be excused. The delusional hand-raiser's delusion furnished a wonderfully good reason - making the world a vastly better place - for forming the intention to raise the hand. As we have seen, mental abnormality almost never negates intent. Nor was there anything wrong with the agent's will, properly understood as an intentional, executory state that translates desires and beliefs into action.(31) The will operated quite nicely to get that hand up. As for "free will," I do not know what it means in any case. Often, it is just a hand-waving placeholder for the conclusion that the person supposedly lacking this desirable attribute ought to be excused. Thus, the real argument should be about the genuine excusing condition that is doing the work. And that work is not being done by the irresistibility of the delusional agent's impulses. The desire to raise the hand may be irrational, but it is hardly literally irresistible in the mechanistic, physical way that the neurologically-impaired person's handraising was irresistible. If there is irresistibility here, it is metaphorical. And, is there even metaphorical irresistibility here? The delusional hand-raiser surely exercised a choice by raising the hand, and it was not a hard choice of the sort that makes us say, again metaphorically, that the agent really had "no choice." After all, the delusional person believed that failure to participate would not make anyone worse off, but raising the hand would make us all better off. From the delusional person's point of view, the request to participate was an offer, not a threat, and offers are thought to provide easy choices and more freedom, rather than hard choices and less freedom.

So, if excuses generally are not premised on causation per se, lack of intention, lack of will or free will, irresistible impulse, or lack of choice, what are the conditions of excuse? The answer, even among those not attracted by the false starts just explored, is of course contested. My preferred candidates are irrationality and internal and external coercion, which I believe quite closely track moral and legal excusing conditions and which can be normatively defended. Again, we should not be distracted by disputes about the meaning of these candidates. It does not matter for the purposes of this article because the role of new syndromes will have to be argued in terms of whatever excusing conditions one chooses to adopt. Thus, if one rejects my candidates, the same types of arguments I shall presently make would apply, but they would simply employ different excusing conditions."(32)

New syndromes excuse only if they sufficiently produce whatever excusing condition the law and morality adopt. For example, if irrationality were an excusing condition, mental abnormality would have to produce sufficient irrationality in the practical reasoning that produced the criminal conduct. How much irrationality or other excusing condition is necessary is a normative, moral, and legal judgment that even the best scientific and clinical understanding of a syndrome cannot dictate because responsibility is not a scientific or clinical question.

Now, should the use of syndromes to excuse be expressed doctrinally by the creation of new, discrete excuses for each new syndrome or by the use of new syndrome evidence simply to support existing excuses? I strongly favor the latter approach because the former - the creation of a new excuse based on the syndrome - suggests confusingly that it is simply the presence of the syndrome in the causal chain that somehow itself excuses. We have seen already, however, that this view is mistaken. Even abnormal causation does not per se excuse or deprive people of intention, will, choice, or the like. Moreover, it is a clinical commonplace that all people suffering from the same syndrome are not alike. Assuming that a particular syndrome causes rationality problems or other excusing conditions, not all syndrome sufferers will be equally irrational or the like. Some whose behavior is affected by the syndrome may be sufficiently irrational to be excused, but others may not be. The law should focus on the presence of the excusing condition itself, rather than on the syndrome. Creating new defenses for the syndromes themselves only encourages the pernicious and persistent fundamental psycholegal error.

Unfortunately, there are no generic excusing criteria, but only discrete defenses, such as legal insanity. The law is then hostage to the ever-changing trends, biases, models, and myths of mental health science. This undesirable state of affairs explains much of the conduct of those proposing "New Syndrome" excuses. If the allegedly excusing syndrome does not yet have the official imprimatur of being a recognized mental disorder, that is, one included in DSM-IV, then advocates must explain to the court or legislature why the syndrome is as much a "real" mental disorder as any of the official ones. Even if they are able to convince the court that the disorder is real, they must also persuade that it is sufficiently serious, like the major mental disorders, such as schizophrenia, that usually undergird a colorable insanity claim. If those ploys fail, they must persuade that a new defense ought to be created.

The law should not place New Syndrome Excuse Syndrome sufferers in this lamentable position. Creating a new defense based on the syndrome risks the confusions described above, and a sufficiently irrational defendant ought to be excused even if no recognized mental disorder is present. I believe that there ought to be generic excuses, such as irrationality. Defendants should be able to use any credible, and I stress credible, lay or expert evidence to demonstrate that they were nonculpably in the generic excusing condition at the time of the crime. So, for example, there would be no discrete insanity defense. Instead, a defendant might use evidence of mental disorder to demonstrate that he or she was too irrational to deserve blame and punishment. In such a doctrinal regime, whether a syndrome was "recognized" would be a matter of weight, rather than admissibility.

Some do not think the plight of the potential new syndrome sufferer described just above is lamentable. They fear reasonably that courts will be plagued with innumerable excuse claims using either apparently relevant but actually pseudoscientific and crock clinical evidence or scientifically valid and clinically sound but legally irrelevant evidence. In response to such fears, for example, the drafters of the Model Penal Code thought that the requirement of a mental disorder would provide an "objective" element of abnormality that would discipline the domain of excuses. But they were wrong about the objectivity of mental health evidence, and they were mostly descriptively wrong and entirely normatively wrong about the disciplinary effect. Critics are right to fear a proliferation of potentially bogus claims that will waste resources and risk unacceptable jury confusion. But, as in the case of negation of mens rea claims, the proper response is to discipline the lawyers and preliminarily to exclude the crock claims, rather than to exclude altogether claims that justice might demand be heard. For now, however, the plight is unavoidable, and using traditional excuses is the better approach.

V New Syndromes and Justifications

New syndrome evidence is used in justification claims in two ways: first, to bolster the proof of an existing justification, and second, to support the expansion of traditional justifications. The first is unproblematic if the syndrome evidence is valid and legally relevant. The latter move usually blurs and sometimes collapses the justification/excuse distinction. I will discuss both uses of new syndrome evidence, but first, some general preliminary observations about justifications are necessary.

Recall that the justified defendant engages in otherwise unlawful conduct, but under the specific circumstances her conduct is right (or at least permissible) because she meets society's objective standards of good ethical behavior. She is doing the right deed for the right reason. Objective reasonableness requirements express a wide-ranging normative social consensus about the morality of conduct. When objective standards are set, they will not be at a level easily achievable by the least well-endowed members of society; rather, they will be set at some average level. Consequently, some entirely normal but poorly endowed people will have greater difficulty meeting the standard. This is a regrettable but inevitable outcome of objective ethical standards. Nonetheless, if people are capable of meeting the standard, albeit with difficulty, it is not unfair to require them to conform rather than to injure their fellow citizens.

On the other hand, very poorly endowed or otherwise abnormal people may find it impossible within reasonable limits to meet objective standards. If so, as H.L.A. Hart argued long ago,(33) they should be excused from liability. Justice requires that the law must not require citizens to meet impossible standards and then blame and punish them when they cannot meet them. Now the criminal law does not require exalted standards of conduct from citizens. Quite the contrary: it is not hard not to kill, rape, steal, and burn, and the duty of care to avoid criminal liability for risky conduct is met easily. Nevertheless, some people cannot meet those standards, and providing an excuse in such exceptional case - and I must stress that they are exceptional - does not undermine the general desirability or application of objective standards for justification precisely because excusing the defendant presupposes that he or she has done the wrong thing under the circumstances.

Sometimes, of course, the justifications qualify rigorous objectivity by endowing the reasonable person with some of the characteristics of the accused. The question is when it is appropriate to do so. The usual answer is that it is appropriate in cases in which the defendant possesses normal, non-culpable characteristics that are relevant to the situation. So, for example, the comparative size and strength of the defendant might be considered when assessing whether the defendant's belief about the need to use defensive force was reasonable. In contrast, cowardly character, a moral failing, or paranoid personality, a mental abnormality, would not be considered because these characteristics do not meet the test of normality and innocence for modifying the objective standard for justification.(34)

To assess the two uses of syndrome evidence - to support a traditional justification and to underwrite a new justification - I shall use the example of the "battered victim syndrome," because it is surely the most litigated, legislated and written about. The analysis of the relation of this syndrome to justifications also applies to purported other new syndromes, with few necessary modifications in most cases. Before continuing, however, a few points must be noted. First, I recognize that the term "battered victim," rather than "battered woman," is controversial. But without gainsaying the horror of battered women, it is nonetheless true that not all victims of battering who may suffer from a battering-related syndrome are women. Second, I assume the validity of the syndrome, although the validity of the syndrome is much less well-established than the undeniable battering itself.(35) Finally, not all victims of repeated battering are syndrome sufferers.

How would syndrome evidence be used to bolster a traditional claim of justification? Assume a confrontation in which the syndrome-suffering victim of a battering relationship is in imminent danger of another attack that will cause serious bodily harm and she kills the batterer. This is a classic case of justified self-defense, and why is the syndrome evidence relevant? In a clear case, say, with witnesses, it may not be, but suppose there are no witnesses or the case seems less clear. What then?

Syndrome evidence may be relevant in a number of ways to an objectively reasonable assessment of the need to use deadly force. First, the evidence may dispel myths or correct seemingly sensible but erroneous inferences that might affect the factfinder's assessment. For example, suppose a defendant claiming self-defense tries to buttress the honesty and reasonableness of her belief that she needed to use deadly force by providing a history of battering by the person she killed. Ordinary people might find the history unbelievable and the present claim less credible because they do not believe the defendant would have stayed in such a relationship. They might not believe that the defendant suffered repeated attacks because ordinary observers think that she would have left the relationship. Consequently, they might also infer that there probably was not much danger on the present occasion either. Syndrome evidence will support the honesty and reasonableness of the defendant's belief and the proportionality of her defensive force because it will explain why people subjected repeatedly to terrible physical abuse stay with the abuser.

Second, it is possible that battering syndrome sufferers may be especially acute observers of cues that presage imminent violence from the abuser.(36) That is, although the situation may appear non-threatening to the ordinary person - say, the batterer has a funny look in his eyes or he just crushed a beer can in his hand in a particularly harsh manner - the battered syndrome suffering defendant may know quite reasonably that that look or that gesture is always or almost always followed by dreadful violence. If the sufferer has such skills of hypervigilance and if the batterer did exhibit the prodromal cues - both of which are factual questions - then the defendant's belief is once again reasonable by standard, objective standards.

In both examples, syndrome evidence was used to support an entirely traditional, unreformed, unsubjectivized self-defense justification. The law is simply taking advantage of fresh scientific/clinical evidence to apply old objective doctrine. This is nothing more than the exercise of rationality, for which the law prides itself mightily. Such limited uses of syndrome evidence in the realm of justification is entirely to be applauded when the factual evidence meets the usual evidentiary tests of reliability and validity.

The "New Syndrome Excuse Syndrome" sufferers want more, however. They wish to expand justifications in cases that lack the usual criteria of justification. For example, suppose a syndrome sufferer's belief about the need to use defensive force is objectively unreasonable. The primary expansionist move is to attempt to endow the objective, reasonable person standard with the syndrome of the accused. Thus, instead of asking what the reasonable person would have believed and done in these circumstances, advocates wish to ask what a "reasonable syndrome sufferer" would have believed and done. If a reasonble syndrome sufferer would have behaved as this syndrome sufferer actually did, proponents argue that the defendant's conduct is reasonable and should be justified rather than excused. In contrast, I claim that such suggestions are conceptually confused and are morally and legally undesirable.

To understand why the expansionist strategy is misguided, let us again begin with an example. Assume that a battered victim syndrome sufferer honestly believes that she is in deadly peril and kills the batterer, but in objective fact on this occasion, there is no confrontation and no immediate danger, even judged by reasonably-loosened imminence or immediacy requirements for the use of deadly force. Assume, too, counterfactually in some instances to be sure, that if the syndrome sufferer remains in the relationship, the batterer will attack again at some time in the future. In this instance, however, there is an alternative available to the sufferer, such as going to the police or to a shelter. Can the sufferer's honest but unreasonable belief in the need to use deadly force justify rather than excuse killing the batterer when there is no immediate danger and there are alternatives available to safeguard her?

The expansionist argument usually denies that there are alternatives available and thus claims that a pre-emptive strike is justified. But if so, this is again a traditional self-defense claim applied to unusual circumstances. If death or serious bodily harm in the relatively near future is a virtual certainty and the future attack cannot be adequately defended against when it is imminent and if there really are no reasonable alternatives, traditional self-defense doctrine ought to justify the pre-emptive strike.(37) Note, however, that in this case the pre-emptive strike would be objectively reasonable, and there would no need to use syndrome evidence, except, perhaps to buttress the credibility of the sufferer's prediction of future harm. The law currently rejects pre-emptive strikes, even when the conditions listed above may be met. But justice arguably demands a loosening of imminency requirements if strict conditions exist that indicate that no reasonable alternative was in fact available.

Expansionists know, however, that it is almost impossible to assert sensibly that such unusual circumstances always exist when the syndrome sufferer is in no immediate objective danger. Alternatives are sometimes available. In response, advocates argue that the battered victim syndrome affects the sufferer's cognitive and volitional functioning, making it difficult or impossible for the sufferer to recognize or to utilize the alternatives. For example, the syndrome might produce such a sense of helplessness, hopelessness, and unworthiness that the sufferer honestly but erroneously believes that there is "no other way out." Or, she may know that alternatives exist and that she ought to take advantage of them, but depression associated with the syndrome robs her of volition, rendering her incapable of making use of the alternatives.(38) These in fact are precisely the types of claims made about battered victim syndrome sufferers by those who have studied domestic violence.

Now, if these assertions are true, and I believe that they often are, the defendant is really claiming an excuse based on impaired rationality or volition. If there were reasonable alternatives available, killing the batterer on the occasion was not the right thing to do, and it should not be justified. The law is pacific and should discourage personal, violent resolution of interpersonal conflict and violence.(39) And the personal infliction of condign punishment, even upon vicious batterers who deserve it, is the law's business, not the business of private individuals when there is no imminent objective danger. If the syndrome suffering defendant is to have an affirmative defense in such cases, it must be an excuse.

Once again, there may be doctrinal problems if the law refuses to accept the characterization of the syndrome as a mental disorder. Even then, there are at least other partial excuses, such as the "extreme emotional disturbance" doctrine or "imperfect self-defense" that syndrome sufferers can employ if the law refuses the disorder characterization. Possible doctrinal or practical difficulties do not undermine, however, the logic of the argument for the application of an excuse rather than a justification.

To avoid this logic, we noted that expansionists sometimes argue that the reasonable person standard should be subjectivized to "the reasonable battered victim syndrome sufferer." If a reasonable syndrome sufferer would believe there was no way out, advocates claim, then the attack is not excused, but is justified after all. But this claim makes a mockery of objective standards and of the entire notion of justification, collapsing the important distinction between justification and excuse. Advocates of such claims often betray their confusion about the distinction. For example, Lenore Walker, the foremost investigator of battered spouse syndrome and a leading advocate and expert for battered women who kill, wrote recently that a defendant she aided killed in self-defense while temporarily insane.(40) Let me state clearly that I do not have an exalted view of objectivity. Instead, I refer to the intersubjective agreement arrived at by accepted methods of perceiving and testing the world around us without which human society would not be possible.

By definition in the hypothetical, the syndrome sufferer has an abnormality that prevents her from comprehending or acting on reality sufficiently well to meet the objective ethical standards that justification requires.(41) Talk of the "reasonable battered victim syndrome sufferer" is akin to talk of the "reasonable person suffering from paranoia." Not only is this a failure of nerve concerning the possibility of objectivity, it threatens to make right whatever the agent honestly believes is right. Such relativization of ethical standards is impossible to support theoretically and even more impossible for the law to adopt if it is to maintain its moral basis. What the syndrome sufferer is really claiming is that her responsibility as a moral agent is compromised. This, of course, is the classic basis for an excuse.

A recent rejoinder to these arguments about objectivity and justification deserves a response. The suggestion was that the battering relationship that causes the battered victim syndrome is as objective as the beliefs of the person with a more standard, objective self-defense claim. Thus, advocates counter, the self-defense claim of the syndrome sufferer is equally objective and qualifies for justification. But this move is a category mistake, confusing the objectivity of the causes of beliefs and the objective accuracy of the beliefs themselves. All beliefs, of any degree of rationality or truth, are caused by something, which in principle could be identified accurately if science were sufficiently sophisticated. Not all beliefs equally objectively caused are equally rational or true, however. And some mistaken beliefs are not sufficiently reasonable to qualify for justification, no matter how they are caused.

Although excuse is the appropriate defensive claim in cases when non-culpable irrationality motivates unnecessary defensive force, it is not difficult to understand why the New Syndrome Excuse Syndrome sufferers would prefer to use justification. If we cause harm, we all would prefer to believe (and have others believe) that our conduct was the right thing to do under the circumstances, rather than believe that we did the wrong thing but were not responsible for ourselves. Excusing conditions also tend to stigmatize their sufferers negatively. Thus, for example, although many advocates for battered women applaud the use of syndrome evidence to support defenses for those who kill their batterers without objective justification, other advocates fear that doing so reinforces the negative stereotype of women as helpless victims of their emotions who cannot be expected to behave rationally. A final peril with using an excuse rather than a justification is that the state has more leverage civilly to interfere in the life of an excused harm-doer. Despite all these considerations, however, an excuse is still the proper claim when objective justification is lacking.

VI Conclusion

In conclusion, there are appropriate cases for the admission of evidence of mental abnormality, including valid new syndrome evidence, to support traditional defenses. Moreover, the criminal law would be more rational if it adopted generic excusing conditions rather than individuating excuses by the names of the causes of the excusing conditions. But when New Syndrome Excuse Syndrome sufferers advocate the creation of new defenses for alleged new syndromes and the expansion of justifications that will convert these defenses into excuses, the law should not be blinded by psychiatric pixie dust nor lose its legal commonsense. A little jurotherapy goes a long way.


(1 ) This article was first presented at the Alan Fortunoff Criminal Justice Colloquium at the New York University School of Law. I should like to thank Professor James B. Jacobs of New York University for his support and hospitality, and John Monahan for helpful comments. (2) Am. Psychiatric A., Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (1994) [hereinafter cited as DSM-IV]. (3) Id., at 645. (4) Id., at 424. (5) Id., at 609. (6) Id., at 615. (7) Id., at 703. (8) Id., at 704. (9) Id., at 708. (10) Id., at 715. (11) E.g., L. Walker, The Battered Woman (1979) and Terrifying Love (1989); State v. Kelly, 478 A.2d 364 (N.J. 1984). (12) E.g., Reaves v. State, 639 So.2d 1 (Fla. 1994). (13) E.g., State v. White, 1994 WL 455805 (Utah App.). (14) E.g., Werner v. State, 711 S.W.2d 639 (Tex.Crim.App. 1986). (15) See Milloy, Self-Defense Goes Insane In the City, Washington Post, METRO D1, May 18, 1994 (reporting its use in a case in Fort Worth, Texas). (16)_E.g., Bazelon, The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385, 403 (1976). (17) See, Duggan, We're Being Killed by - Victims!," Newsday, FANFARE 43, Aug. 21, 1994 (reporting its planned use to support the insanity defense in the trial of serial killer, Joel Rifkin). (18) People v. White, 117 Cal. App. 2d 270 (1981). The claim was based on the California Supreme Court's innovative interpretation of the "malice aforethought" required for a murder conviction. The Court had previously held that, in cases involving mental disorder or intoxication, malice was negated and therefore the defendant could not be convicted of murder if mental abnormality prevented the defendant from comprehending and being aware of the duty to act within the law. P. v. Conley, 411 P.2d 911, 917 (1966). (19) See, G. Fletcher, With Justice for Some 141-47 (1995). (20) I discuss this issue in much greater detail in an earlier article. Morse, Undiminished Confusion in Diminshed Capacity, 75 J. Crim. L. & Criminology 1, 36-45 (1984). (21) People v. Wetmore, 538 P.2d 1308 (Cal. 1978). (22) R. v. Clarke, 1 All ER 219 (1972). (23) For a particularly egregious case, see, e.g., Commonwealth v. Zettlemoyer, 454 A. 2d 937 (Pa. 1982) (defendant clearly intentionally killed after careful planning a potential witness against defendant in a forthcoming criminal case; defendant claimed that he lacked the specific intent to kill the victim). On federal habeas, the Third Circuit characterized Zettlemoyer's claim as "nothing short of preposterous," Zettlemoyer v. Fulcomer, 923 F. 2d 284, 297 (3d Cir. 1991). (24) Appelbaum, Jick, Grisso, Givelber, Silver, & Steadman, Use of Posttraumatic Stress Disorder to Support an Insanity Defense, 150 Am. J. Psychiatry 229 (1993) (0.3% of insanity defendants were diagnosed as suffering from PTSD, and such defendants were not more likely to succeed with the insanity defense than defendants with other diagnoses). (25) Maguigan, Battered Women and Self Defense: Myths and Misconceptions in Current Reform Proposals, 140 U. Pa. L. Rev. 379, 391-97 (1991). (26) Greenawalt, The Perplexing Distinction Between Justification and Excuse, 84 Colum. L. Rev. 1897 (1984). (27) For a more complete discussion, see Dressler, Justifications and Excuses: A Brief Review of the Literature, 11 Wayne L. Rev. 1155, 1157-61 (1987). (28) For more thorough discussions of this issue, see Moore, Causation and the Excuses, 73 Cal. L. Rev. 1091 (1985); Morse, Psychology, Determinism, and Legal Responsibility, in The Law As A Behavioral Instrument 35 (G. Melton, ed. 1986). (29) See Strawson, Freedom and Resentment, in Free Will 59, 80 (G. Watson, ed. 1982) (referring to libertarian metaphysics). (30) I explore these false starts in much greater depth elsewhere. See Morse, Culpability and Control, 142 U. Pa. L. Rev. 1587, 1590-1605 (1994). (31) For the most thorough, sophisticated jurisprudential analysis of the "will," see M. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law 113-65 (1993). (32) In the remainder of this paper, for convenience only, I shall use irrationality as the "generic" excusing condition that might be produced by old and new syndromes, as well as by stress, fatigue, or a host of other causes. The reader should remember, however, that any other preferred excusing condition could replace or be added to irrationality without changing the form or substance of the general argument. (33) H.L.A. Hart, Punishment and Responsibility 152-54 (1968). (34) Objective standards qualified by some subjectivity are sometimes the criteria for partial excuses, such as the Model Penal Code's "extreme emotional disturbance" doctrine that reduces murder to manslaughter. The rationale for qualifying rigorously objective standards for excusing conditions is different from the rationale for qualifying objective standards for justifications because some non-culpable abnormalities might fairly be considered when excuses are in question. For example, paranoia would not qualify reasonableness for purposes of justification, but it might very well be used to qualify objective standards for excuse. Although a person with paranoia is not normal and his or her abnormal beliefs cannot make objectively wrong behavior right, the abnormality is not his or her fault and might be the basis for partial or complete excuse. (35) See Faigman, The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent, 72 Va. L. Rev. 619 (1986). (36) See Jahnke v. State 682 P.2d 991, 1015-16 (Wyo.1984) (Rose, J., dissenting) (battered child could predict attack from way father walked). (37) See Commonwealth v. Stonehouse, 555 A.2d 772 (Pa. 1989)(facts suggested that no reasonable alternative was available, but court rejected self-defense claim arising from a confrontation). (38) See L. Walker, Terrifying Love, supra note 11, at 50 (basing her assertions largely on Seligman's "learned helplessness" theory). (39) Schulhofer, The Gender Question in Criminal Law, 7 Soc. Phil. & Pol. 105, 115-16, 137 (1990). (40) L. Walker, Terrifying Love, supra note 11, at 187. (41) Coughlin, Excusing Women, 82 Cal. L. Rev. 1, 53-56 (1994) (collecting and analyzing various sources, but especially the work of Lenore Walker).

Stephen J. Morse is Ferdinand Wakeman Hubbell Professor of Law, University of Pennsylvania Law School and Professor of Paychology and Law in Psychiatry, University of Pennsylvania School of Medicine.
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Date:Jan 1, 1995
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