The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage Author(s): Peter Arenella Source: Columbia Law Review, Vol. 77, No. 6, (Oct., 1977), pp. 827-865 Published by: Columbia Law Review Association, Inc. Stable URL: http://www.jstor.org/stable/1121980 Accessed: 03/06/2008 14:53 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=clra. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission.

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COLUMBIALAW Vol. 77

October 1977

REVIEW No. 6

THE DIMINISHEDCAPACITY AND DIMINISHED RESPONSIBILITYDEFENSES: TWO CHILDRENOF A DOOMED MARRIAGE PETER ARENELLA *

INTRODUCTION

Like many other eighteen-year-olds,Raymond Goedecke was not getting along very well with his father. Raymond wanted to leave home and strike out on his own but his father,who was also his employer,would not permitit. Raymond'sresentmentof his father'sdominationfueled many conflictsbetween them until finally the two stopped talking to each other.' This common story of a father and son's failure to communicatetook a bizarre twist when Raymond resolved the conflict by killing his entire family. He carefully planned his father's murder by establishingan alibi that he was asleep at a church camp on the night of the killing. After secretlyleavingthe camp and drivingto his home, he took off his shoes and enteredthe house. Picking up an iron bar in the garage,he went into his parents'bedroom and struck both his mother and father repeatedly. He continued to his brother's and sister's bedroom and beat them to death. After washing the blood off his clothes and opening drawers to make it look as if someone had ransackedthe house, he returnedto the church camp. The next day, he returnedto his parents'home with a friend and feignedsurpriseat findingthe bodies.2 At the trial for first-degreemurder,defense psychiatriststestified that Goedeckedid not realizewhat he was doing on the evening of the murders because of a dissociativereaction. Prosecutionpyschiatristsagreed that he was mentally ill but concluded that his mental disabilitydid not interfere with his capacityto formulatethe intent to kill or to understandthat what * Assistant Professor of Law, Rutgers University at Camden; B.A., Wesleyan University, 1969; J.D., Harvard University, 1972. I wish to express my deep appreciation to my colleagues, Professors Pomorski, Claik, Forkosch, and Presser for their invaluable critiques of several drafts of this Article. Special thanks must also go to my research assistant, Ms. Christine Bancheri, and my most critieal editor, Ms. Catherine Bancroft. 1. The facts presented in the text are drawn from People v. Goedecke, 65 Cal. 2d 850, 423 P.2d 777, 56 Cal. Rptr. 625 (1967). For Raymond's problems with his father, see id. at 864, 423 P.2d at 786, 56 Cal. Rptr. at 634 (dissenting opinion). 2. Id. at 854, 423 P.2d at 780, 56 Cal. Rptr. at 628.

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he was doing was wrong.3 The jury found Goedecke guilty of first-degree murderof his father but insane when he killed the rest of his family. On appeal,the CaliforniaSupremeCourt reducedGoedecke'sconvictionfor the killingof his fatherto murderin the seconddegree.4 Defendantslike RaymondGoedeckefrustratethe criminallaw's attempt to draw a sharp line betweenthe "mad"actor who is not criminallyresponsible for his behaviorand the "bad"actor who is accountable. Even if we agree with the jury that he did not cross the legal line between sanity and insanityuntil after he killed his father, it is clear from the facts and expert testimony that Goedecke was mentally ill throughoutthe episode. Thus, RaymondGoedecke'scase clearly presentsthe problemof how the criminal law should treat evidence of mental abnormalitythat does not establishthe actor'slegal insanity.5 Respondingto this problem, a numberof courts have adopted a doctrinal supplement to the insanity defense that permits the fact-finderto considera sane defendant'smental abnormalitywhen it assesses his degree of criminalliability. Unlike the insanity defense, this partial defense does not completely exoneratethe defendant,but merely reduces the degree or nature of the crime. Although legal analysishas not always done so, two separatemodels of the defense must be clearly distinguished. These will be referredto here as the "mensrea" and "diminishedresponsibility"models. A. The Mens Rea Model In the mens rea model, the jury is asked to consider whether a sane defendant'smentalabnormalityat the time of the crime preventedhim from entertainingthe specific mental state prescribedby statute. Although the courts could apply this defense to any crime that requiresproof of a mental element,6 they have restricted its use to specific intent crimes.7

In practice,

defendantsraise this defense most frequentlyin homicidecases to show that

3. Id. at 856-57, 423 P.2d at 781, 56 Cal. Rptr. at 629. 4. Id. at 861, 423 P.2d at 784, 56 Cal. Rptr. at 632. 5. This problem arises in many homicide cases because psychiatry's definitions of mental abnormality easily encompass such serious criminal behavior. See K. MENNINGER,THE CRIMEOF PUNISHMENT (1968); notes 158-160 and accompanying text infra. 6. See note 25 infra.. 7. "Specific intent" crimes require proof of some particular mental state beyond the mere intent to engage in the proscribed conduct. "General intent" crimes require only that the individual voluntarily commit the forbidden act. The distinction between specific and general intent crimes is an elusive one that rests far more on social policy considerations than statutory construction. See Comment, Rethinking the Specific-General Intent Doctrine in California Criminal Law, 63 CALIF. L. REV. 1352 (1975). Although the concept of mens rea suggests a subjective theory of criminal liability that requires proof of a "guilty mind", general intent crimes approximate an objective standard of liability because the "intent" is inferred from the doing of the act and the presumption that all reasonable persons intend the natural and probable consequences of their actions But see Mullaney v. Wilbur, 421 U.S. 684, 702 (1975). A court's conclusion that a crime requires proof of only a general intent often rests on its judgment that the social control function of the criminal law would be jeopardized if the court permitted the more subjective inquiry into the offender's mental state required for proof of a specific intent. See, e.g., People v. Rocha, 3 Cal. 3d 893, 479 P.2d 372, 92 Cal. Rptr. 172 (1971).

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their mental abnormalitypreventedthem from premeditatingand deliberating,8entertainingmalice,9or possessingan intentto kill.l0 A successfulmens rea defense results in the reduction of the offense to one with a lesser maximumpenaltywhich does not requireproof of the specificintent at issue. The mens rea model has received the support of many psychiatrists, as well as an increasingnumber of state courts,"llargely because it seems to offer a logical way of relatingmedicaldata about the accused'spersonality to legal categoriesof criminalliability.l2 Proponentsof the model contend that evidence of mental abnormalityshould be admissibleto the extent that it is "relevan[t] to prove or disprovea materialstate of mind."18 B.

Diminished Responsibility-The

Formal Mitigation Model

The second model permits the jury to mitigate the punishmentof a mentallydisabledbut sane offenderin any case where the jury believes that the defendantis less culpablethan his normal counterpartwho commitsthe same criminalact.l4 Unlike the mens rea model, however, the diminished responsibilitydefense does not permitthe jury to distinguishbetweenvarious degreesof liabilityof the same crime because the expert testimonyadmitted does not correlateto the various statutorymens rea elements. Instead, the diminishedresponsibilitydefensepermitsthe jury to treatthe offender'smental abnormalityas a formal mitigatingfactor which "shall always remove the offense into a separate category carrying a lower maximum penalty." 15

This model opens the courtroomdoors to most psychologicaltestimony concerningthe accused'smental disabilitiesbecause all such testimonymay 8. See, e.g., People v. Wolff, 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). 9. See, e.g., People v. Conley, 64 Cal. 2d 310, 411 P.2d 911, 49 Cal. Rptr. 815 (1966). 10. See, e.g., People v. Ray, 14 Cal. 3d 20, 533 P.2d 1017, 120 Cal. Rptr. 377 (1975). 11. See, e.g., State v. Donahue, 141 Conn. 656, 109 A.2d 364 (1954), cert. denied, 349 U.S. 926 (1955); Johnson v. State, 226 Ga. 511, 175 S.E.2d 840 (1970); State v. Moeller, 50 Hawaii 110, 433 P.2d 136 (1967); State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961); State v. DiPaolo, 34 N.J. 279, 168 A.2d 401, cert. denied, 368 U.S. 880 (1961). For a complete listing of jurisdictions that have adopted the mens rea defense by statute or judicial decision, see Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other than the Defense of L. REV. 1051, 1105 (1975). Insanity, 26 SYRACUSE 12. See, e.g., MODELPENALCODE?4.02(1) (Proposed Official Draft, 1962); Diamond, Criminal Responsibility of the Mentally III, 14 STAN.L. REV. 59 (1961); Lewin, supra note 11. 13. MODELPENALCODE? 4.02, Comment at 193 (Tent. Draft No. 4, 1955). 14. Most commentators have characterized the diminished responsibility defense as a 1949-1953 REPORT ON CAPITAL PUNISHMENT, plea in mitigation. See, e.g., ROYALCOMMISSION PUNISHMENT 143 (1953) [hereinafter cited as CAPITAL REPORT]; Diamond, supra note 12, at 82; Note, Graduated Responsibility as an Alternative to Current Tests of Determining Criminal Capacity, 25 U. ME. L. REV.343 (1973). 15 (1968) (emphasis added). In ANDRESPONSIBILITY 15. H. L. A. HART,PUNISHMENT contrast to legal justifications and excuses which negate criminal responsibility, mitigation focuses on the degree of punishment to be imposed after criminal liability is established. Unlike informal mitigation, which occurs at sentencing, formal mitigation occurs at trial where the fact-finder reduces the defendant's formal degree of criminal liability if the mitigating factor is proven. The diminished responsibility defense could be applied to all criminal offenses, see LAWANDITS CODE? 21, reprinted in S. KADISH & M. PAULSEN,CRIMINAL GERMANCRIMINAL 612 (3d ed. 1975), but it is most frequently used in PROCESSES,CASESAND MATERIALS homicide cases to reduce an offender's degree of liability to a non-capital offense.

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supportthe inferencethat the accused was less responsiblefor his actions than the ordinarydefendant. Although some European nations have accepted the diminishedresponsibilitymodel,'6 no Americanjurisdictionhas explicitly adopted it.17

Both the diminishedresponsibilityand mens rea models raise fundamental questions concerningthe criminallaw's ability to integrateits substantive principles with psychological explanations of deviant behavior. Shouldthe jury considerthe mentaldisabilitiesof a defendantlike Goedecke when it assesses the formal degree of criminalliability or should the evidence be consideredonly by the judge at sentencing? If the jury should consider this evidence, can it do so by correlatingit to statutorystate of mind requirements? If not, should the jury reduce the formal degree of liability because the defendant'smental abnormalitydiminishedhis culpability? This Article will criticallyexamine how various American courts and commentators18 have answeredthese questions. Part I seeks to demonstrate conceptualflaws in the mens rea model by an analysisof its adoption by the Court of Appeals for the District of Columbiain United States v. Brawner.19This analysisdistinguishesbetween two forms of the mens rea model: a narrower,strict approach which admits only evidence showing that the defendantdid not entertainthe requisitementalstate; and a broader, diminishedcapacity approachwhich admits any evidence showing that the defendantwas less capablethan a normalperson of entertainingthe relevant mental state. Part I then identifies the problems with both approaches. Althoughlogicallyunassailable,the strict approachadds little to the existing insanitydefensebecausein most cases the type of mental abnormalitywhich would prevent the defendant from entertaininga specific intent will also 16. The defense was first recognized by Scottish common law courts to reduce the punishment of the "partially insane" from murder to culpable homicide, a non-capital An historical review of the offense. See HM Advocate v. Dingwall, [1867] J.C. 466. defense's Scottish origins can be found in 1 N. WALKER, CRIME AND INSANITY IN ENGLAND, PERSPECTIVE138-46 (1968). In 1957 the British Parliament adopted the THE HISTORICAL diminished responsibility model by empowering the fact-finder to find the defendant guilty of manslaughter instead of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. English Homicide Act of 1957, 5 & 6 Eliz. 2, c. 11, ?2. Furthermore, some European countries allow the sentencing authority to reduce the punishment of a mentally disabled but sane defendant below the minimum term PUNISHMENT REPORT,supra note 14, app. 9, at 415, prescribed for the offense. See CAPITAL for a summary of the Italian provision. 17. This Article argues, however, that in general the mens rea model functions as a formal mitigating device which is virtually indistinguishable from the diminished responsibility model See text at notes 93-109 infra. 18. See Dix, Psychological Abnormality as a Factor in Grading Criminal Liability: Diminished Capacity, Diminished Responsibility, and the Like, 62 J. CRIM. L.C. & P.S. 313 (1971); Lewin, supra note 11; Taylor, Partial Insanity as Affecting the Degree of CrimeA Commentary on Fisher v. United States, 34 CALIP. L. REV. 625 (1946); Weihofen & Overholser, Mental Disorder Affecting the Degree of a Crime, 56 YALEL.J. 959 (1947). 19. 471 F.2d 969 (D.C. Cir. 1972).

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establish his insanity.20 On the other hand, the diminishedcapacity approach adopts an overly broad interpretationof the type of evidence that will relate to the mens rea inquiry,thus allowingthe jury to considerexpert testimonywhich correlatesonly tenuouslywith statutorymens rea elements. Part II then demonstrates,through an analysis of California'smens rea experience,that the diminishedcapacityvariantis, in essence, the diminished responsibilitymodel in mens rea clothing. As Californiamoved from a strict mens rea approach to a diminished capacity rationale, its courts began to admit expert testimony which explained why the accused entertained the requisiteintent rather than proving its absence. Because these psychiatricexplanationsof the defendant'sactions invite the jury to treat the accused'smental disabilityas a formal mitigatingfactor, the result was the creationof a partialdefenseindistinguishablefromthe diminishedresponsibilitymodel. Since the mens rea model thus tends to operatein practiceas a formal mitigatingdevice, Part III evaluates the desirabilityof explicitly adopting the diminishedresponsibilitymodel. It is arguedthat the diminishedresponsibility model does not actually enable the fact-finder to make more preciseculpabilityjudgments. Moreover,the model'spurelysubjectivefocus precludesthe fact-finderfrom consideringwhethera reductionin the actor's maximumterm of confinementserves social interestsprotectedby the criminal sanction. Thus, the diminished responsibility defense weakens the criminal law's social control function by upsetting the delicate balance between subjectiveand objective theories of liability.21 Far from bridging the gap between the criminal law and psychiatry,the diminishedresponsibility model merely accentuatesthe inevitable conflict between the two disciplines. I.

OF WITHTHEMens Rea MODEL:AN ANALYSIS PROBLEMS United States v. Brawner

The Court of Appeals for the District of Columbia adopted the mens rea model in United States v. Brawner,22when it decided en bane to permit 20. The converse is not necessarily true: a defendant could be legally insane yet still capable of entertaining specific criminal intent. See text accompanying notes 33-38 infra. 21. The subjective model of liability imposes criminal sanctions on an individual who voluntarily violated a legal obligation which he could have obeyed. The objective model authorizes criminal liability whenever the individual's conduct has threatened or harmed social interests protected by the criminal law without regard to the actor's subjective culpability. The criminal law has worked out an uneasy compromise between these two competing models of liability. A good example of this tension is the common law defense of duress. A purely subjective theory of criminal liability would require proof that an offender was actually coerced into committing a proscribed act. However, the common law defense does not exculpate the offender unless it can also be shown that a reasonable person, endowed with all the characteristics believed necessary to serve the social control function of the criminal law, would have acted as the defendant did. 22. 471 F.2d 969 (D.C. Cir. 1972). The court in Brawner, in addition to adopting the mens rea model, also abandoned its Durham-McDonald insanity defense. See McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962); Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954). The test of criminal

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the introductionof evidenceof defendant'smentalabnormalityshortof insanity to disputeproof of the actor'sspecificintent.23 The court held that expert testimony as to a defendant'sabnormalmental condition may be receivedand considered,as tending to show, in a responsible way, that [the] defendantdid not have the specific mental state required for a particularcrime or degree of crime-even though he was aware that his act was wrongfuland was able to controlit, and hence was not entitledto completeexoneration.24 To support its ruling, the court noted that proof of specific intent elements25 such as premeditationand deliberation"cannotbe satisfiedmerely 26 by showing that defendantsfailed to conform to an objective standard." responsibility adopted in Durham "is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." Id. at 874-75. In McDonald, the court defined mental disease or defect as including "any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavioral controls." 312 F.2d at 851. The Brawner court abandoned its Durham test in favor of a modified version of the American Law Institute's rule, found in the Model Penal Code: Section 4.01. Mental Disease or Defect Excluding Responsibility. (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. MODELPENALCODE?4.01(1) (Proposed Official Draft, 1962). The Brawner court adopted this test but retained its own McDonald definition of mental disease or defect. 23. Writing for the majority, Judge Leventhal emphasized that the court was not approving the use of mental abnormality evidence as a formal mitigating factor. 471 F.2d at 998. Failure to distinguish between the mens rea and diminished responsibility models, see notes 6-17 and accompanying text supra, had generated a great deal of confusion in D.C. Circuit cases prior to Brawner, in which the defense had requested ambiguously worded instructions that invited the jury to consider evidence of defendant's mental abnormality in assessing his criminal liability. See, e.g., Fisher v. United States, 149 F.2d 28 (D.C. Cir. 1945), af'd, 328 U.S. 463 (1946). 24. 471 F.2d at 998. Despite his growing disenchantment with "the perils of wizardry," Chief Judge Bazelon concurred in the adoption of this new bridge between the criminal law and psychiatry. See Bazelon, The Perils of Wizardry, 131 AM. J. PSYCH.1317 (1974). 25. The court's limitation of the defense to specific intent crimes cannot be justified in terms of a diminished capacity rationale. There is no reason to believe that mental disabilities may diminish an offender's capacity to entertain a specific intent but leave untouched his capacity to entertain a general intent to do the proscribed act. Certainly, psychological explanations concerning an offender's diminished capacity to premeditate a killing could apply with equal force to his intent to strike his victim. Although specific intent crimes require a more detailed subjective inquiry into the actor's mental state than general intent crimes, general intent crimes presuppose a minimal ability to act voluntarily, see People v. Rocha, 3 Cal. 3d 893, 479 P.2d 372, 92 Cal. Rptr. 172 (1971), and relevant evidence indicating the weakening of that capacity should be admissible. See Mullaney v. Wilbur, 421 U.S. 684, 702 (1975). However, successful application of the diminished capacity doctrine to general intent crimes would create the anomalous result of a "partial defense" leading to outright acquittal of the defendant because of the absence of a lesser included offense. To avoid this problem, courts have refused to apply this defense to general intent crimes. See People v. Noah, 5 Cal. 3d 469, 477-78, 487 P.2d 1009, 1014-15, 96 Cal. Rptr. 441, 446-47 (1971). In situations where there is no lesser included offense, courts have construed certain crimes to require only a showing of general intent to preclude application of a diminished capacity defense. See People v. Hood, 1 Cal. 3d 444, 462 P.2d 370, 82 Cal. Rptr. 618 (1969); People v. Nance, 25 Cal. App. 3d 925, 102 Cal. Rptr. 266 (1972). 26. 471 F.2d at 998. The court's claim that an objective standard of liability is not involved in specific intent crimes requires qualification. Even in cases of specific intent, the fact-finder may still rely on evidentiary presumptions that evaluate the offender's acts from an objective perspective. See CALIFORNIAJURYINSTRUCTIONS, CRIMINAL? 3.34 (3d ed. 1970).

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Since the legislaturehas authorizeda subjectiveinquiryinto the defendant's actual state of mind by requiringproof of a specific intent, relevant evidence bearingon that state of mind must be admitted. The majoritydrew an analogy between the use of evidence of mental abnormalityto negate specific intent and the well-establishedrule27 that evidence of voluntary intoxication,although not an excuse, may be admittedto show "whether the accused is in such a condition of mind, by reason of drunkennessor 28 The majority otherwise,as to be capable of deliberatepremeditation." concludedthat neither logic nor justice can tolerate a jurisprudencethat defines the elements of an offense as requiringa mental state such that one defendantcan properlyargue that his voluntarydrunkenness removedhis capacityto form the specificintentbut anotherdefendant is inhibitedfrom a submissionof his contentionthat an abnormal mental condition, for which he was in no way responsible, negatedhis capacityto form a particularspecificintent... .29 The court's reasoning repeats the basic syllogism of the mens rea model: if a subjectivestate of mind is an element of the crime, any testimony as to its existence or absence is relevant evidence. Thus, expert testimonyis admissibleif it describessome consciouslyentertainedthought or emotionwhose presencedirectlynegates or confirms30the requisitestate of mind at the time of the crime.31 Viewed in this way, the strict mens rea model embodiesno special legal theory or defense; it is simply a restatementof a rule of evidence.32 The only difficultywith the mens rea model is its assumptionthat psychiatric analysis is directly relevant to the criminal law's state of mind elements. This premiseis usually erroneousbecause most expert testimony does not speak to the criminallaw's conceptionof intent.33 Considerthe followinghypothetical. AssumeMr. Fanaticbelieves that God has orderedhim to kill his neighborbecause the neighboris an agent 27. See, e.g., Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). 28. Hopt v. People, 104 U.S. 631, 634 (1881). 29. 471 F.2d at 999. 30. Such evidence is relevant to confirm a state of mind required by the subjective component of a complete or partial defense. See text accompanying notes 61-66 infra. For example, in jurisdictions that recognize imperfect self-defense claims, expert testimony showing the defendant irrationally but sincerely believed he was acting in self-defense would be admissible. 31. See e.g., People v. Wells, 33 Cal. 2d 330, 202 P.2d 53, cert. denied, 338 U.S. 836 (1949), discussed in notes 52-68 and accompanying text infra. 32. See MODEL PENALCODE? 4.02(1) (Proposed Official Draft, 1962). 33. One commentator observes: The law proceeds on the assumption that any given "intentional" act is ascribable to a particular "intent," which psychologically appears as . . . an event separable from other psychological phenomena. It thus singles out from the dynamic continuity of a human life one act and a particular intent directed toward it or toward its consequences. Inquiry into the total personality development which culminated in the particular act in issue, indeed even into the specific motive which produced the intent to carry out the act, is barred. Silving, Psychoanalysis and the Criminal Law, 51 J. CRIM. L.C. & P.S. 19, 24 (1960).

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of the devil. Mr. Fanatic buys a gun and ammunition, invites his neighbor over for tea, and calmly blows his brains out, killing him instantly. Psychiatrists testify that Mr. Fanatic was suffering from paranoid schizophrenia as evidenced by his delusion that God had ordered the killing. According to the Brawner court, anyone "under a delusion as to God's mandate would presumably lack substantial capacity to conform his conduct to the requirements of the law" 34 and therefore Mr. Fanatic would be exculpated under the insanity rule of the Model Penal Code.35 Yet the same evidence of mental abnormality would not refute the existence of either the specific intent to kill or premeditation and deliberation. Mr. Fanatic certainly intended to kill and his objective acts clearly evidenced a preconceived design to effectuate that intent in a calm, deliberate manner. Is this an illogical result? How can the defendant be insane, and therefore entitled to a complete defense, and yet not qualify for what is considered a "partial" defense? The simple answer is that there is no necessary connection between a judgment about the defendant's criminal responsibility and his mental capacity to entertain the state of mind required by the crime. As long as the mens rea element is defined in terms of the conscious mind's cognitive and affective functions,36 it is perfectly plausible that the defendant entertained the specific mental state but was still insane. In fact, most mentally abnormal offenders are fully capable of thinking about their criminal act before they do it, turning it over in their minds, planning the act, and then performing it in accordance with their preconceived plan.37 Evidence of how Fanatic's mental abnormality impaired his behavior controls or made it difficult for him to appreciate the act's gravity does not negate the existence of the required mental states; it merely explains them.38 Therefore, a psychiatric explanation of how a defendant's personality development led to his deviant behavior which does not dispute the presence of this conscious intent should not be admissible evidence under the strict mens rea model. Admittedly, there will be occasional cases in which the expert testimony establishes that the defendant was incapable of entertaining the requisite intent. But given the criminal law's minimal definition of mens rea, the only type of mental abnormality that could establish such incapacity would be a severe mental disability that substantially interfered with the 34. 471 F.2d at 992 n.40. 35. See note 22 supra. 36. See State v. Sikora, 44 N.J. 453, 470, 210 A.2d 193, 202 (1965). 37. See Diamond, supra note 12, at 62. 38. Psychiatrists often redescribe purposeful conduct in mechanistic jargon, but their terminology merely obscures their use of teleological concepts such as motive, will and purpose to explain why the defendant acted as he did. Ultimately, their testimony makes a defendant's bizarre, irrational behavior intelligible to us by explaining it from the defendant's perspective. We understand why Mr. Fanatic shot his neighbor, because we are shown how this act related to his needs, desires, and perceptions. See H. FINGARETTE, INSANITY84-97 (1972). THE MEANINGOF CRIMINAL

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defendant'sreality-testingfunctions.39 However, evidence that the defendant's reality-testingfunctions were so impaired by mental illness that he did not realize what he was doing would also establish his insanity under eitherthe M'Naughtonor Model Penal Code tests. Thus, our analysissuggests that if courts administerthe mens rea model honestly and only admit evidence that establishes that the defendant did not entertain the requisite mental state,40the strict mens rea variantwill rarelyserve any purpose not satisfiedby the insanitydefense.41 Unlike the strict mens rea approach,the diminishedcapacity rationale would apply in cases in which the accusedis not legally insane because this variantof the mens rea model admitsall evidence tending to show that the defendantwas less capable than an ordinarydefendantof entertainingthe requisiteintent. Some indication that the Brawnercourt meant to adopt this broader approachcan be found in the court's reference to voluntary intoxicationas a supportinganalogy. The court carefullypointed out that evidence of intoxicationusually must show more than the mere removal of inhibitions;it must indicate such an "incapacitatingstate" as to negate the specificintent requirementof the crime charged.42 But the court suggested that "a lesser state of drunkenness,insufficientto negate the specific intent requiredfor robbery,may suffice to negate the premeditationrequiredfor first degree murder."43 By analogy, one could argue that the mens rea defense will supportthe admissionof evidence of mental abnormalitywhich diminishedthe offender'scapacityto premeditateor deliberateeven if such evidence does not establish his incapacity to do so. Arguably, evidence of the defendant'sdiminishedcapacityto premeditatemay raise reasonable doubts in the jury'smind as to whetherhe did in fact entertainthe required specificintentat the time of the offense. Although not superfluous like the strict approach, the diminished capacityvarianthas one majordefect: it opens the courtroomdoors to virtually unlimited psychiatric testimony. Expert witnesses will always be able to suggestthat the offender'smental disabilitiesimpairedhis capacityto think clearly about his contemplatedactions and their consequences. By adoptingsuch a broad interpretationof the type of evidencethat will relate to the mens rea inquiry,the diminishedcapacityrationaledilutes the causal 39. See United States v. Calley, 46 C.M.R. 1131 (A.C.M.R.), aff'd, 22 C.M.A. 534, 48 C.M.R. 19 (1973). The Court of Military Review held that expert testimony must establish defendant's "total lack of capacity to [entertain premeditated design to kill] . . . and not merely some lesser extent of impairment." Id. at 1177. The court suggested that if a defendant had the "capacity to perceive and predict," he would possess "the two functions essential to the pertinent mens rea." Id. at 1177-78. 40. Since the Brawner court adopted the mens rea model as a supplemental defense which the jury should consider only after it had decided that the defendant's mental abnormality did not absolve him of criminal responsibility, this "incapacity" testimony should not be considered under the mens rea model, because it also establishes the defendant's insanity. 41. But see text accompanying notes 62-66 infra (delineating the types of expert testimony which rationally bear on mens rea elements). 42. 471 F.2d at 999. 43. Id. (citing Heideman v. United States, 259 F.2d 943, 946 (D.C. Cir. 1958) (Burger, J.)).

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connectionrequiredbetween the nature of the evidence introducedand the reasonfor its introduction.44 If the Brawnercourt intended to permit such an unrestrictedinquiry into the defendant'smental state, its adoption of a diminished capacity rationale raises some difficult questions for both the trial judge and the jury. Should all evidence of mental abnormalitybe admittedby the judge because it supports an inference of diminished capacity to entertain the requiredintent?45 Can the jury be given any guidelines as to how this evidence of mental abnormalityshould be considered? When the jury is consideringdifferent specific intent elements, should it be given different standardsfor each element to aid its determinationof whether some, all, or none of the requiredmental states were proven beyond a reasonable doubt? Brawnerdid not answer any of these critical questions. However, it did cite cases from the California Supreme Court that had adopted a diminishedcapacity model of the defense. That court's "answers"provide a revealingglimpse into the true function of the diminishedcapacity doctrine. II.

DIMINISHED CAPACITY OR DIMINISHED RESPONSIBILITY? THE CALIFORNIA EXPERIENCE

A. California'sExperiencewith the Mens Rea Model 1. People v. Wells: California'sStrictMens Rea Approach. California divides its trials into two stages whenever insanity is raised as a defense. At the first stage, the state must prove the existence of the basic elements of culpabilityincludingthe defendant'smens rea and actus reus. All evidence bearingon the questionof insanityis excludeduntil the second stage 44. Surprisingly, most commentators on the diminished capacity defense have accepted the model's assumption that psychological data about the offender's mental condition can be correlated to the legislature's state of mind requirements. See, e.g., Lewin, supra note 11, at 1099-104. But see Dix, supra note 18, at 333. However, Dix contends that some mental elements such as premeditation and deliberation may be more suitable for use in this manner. Id. at 325. 45. The Brawner court did caution trial judges to reject expert testimony based on the conception that mental disorder is only a relative concept and that the behavior of every individual is dictated by forces-ultimately, his genes and lifelong environment-that are unconscious and beyond his control. As we have already made clear, we are not embarked on an inquiry that must yield to tenets of the philosophy of determinism. 471 F.2d at 1002. As we shall see in Part II, it is unlikely that such a restriction will succeed. Most expert witnesses are coached by trial counsel to couch their opinions in terminology that the law will accept and to avoid the pratfalls of exposing their own philosophical beliefs about determinism. See notes 98-102 and accompanying text infra. Moreover, the court's cautionary note about the nature of the evidence to be introduced did not prevent it from holding that evidence of defendant's mental condition may be admitted even if it does not satisfy the court's own legal definition of mental illness given in McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir. 1962). 471 F.2d at 998. Ironically, the court repeated the same mistake it made in Durham by letting the experts define the key term and determine its relevance to the pertinent legal issues.

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of the proceedings which deals solely with this issue.46 Proponents of bifurcationhoped it would prevent a wasteful considerationof the insanity question before defendant'sfactual guilt had been established. More importantly, bifurcation precluded the jury from considering evidence of defendant'smental abnormalitywhich did not establish his insanity under California'sM'Naughtonrule as a formalmitigatingfactor.47 To preservethese policy objectives,the CaliforniaSupremeCourt initially resistedeffortsby defense counsel to introduceevidence of defendant's mental abnormalityat the first stage of the proceedings. Thus, in People v. Troche,48the CaliforniaSupremeCourt rejected an argumentthat evidence of defendant'smental condition should have been admitted at the first stage because it related to one of the factual elements in dispute, his mens rea. The court observed that admittingsuch evidence at the first stage would frustratethe legislature'sobjective of clarifyingthe jury's consideration of the issues of guilt and insanity.49

Troche did not consider the relationshipbetween evidence of defendant's mental abnormalityand proof of the state of mind requirementsat issue in the first stage. The court simply overlookedthe defendant'smost compelling argumentthat the statutory presumptionof sanity at the first stage should not precludethe introductionof evidenceof mentalabnormality short of insanitywhichbears on the questionof premeditation.50By barring the introductionof any evidence of mental abnormalityat the first stage, Troche converteda statutorypresumptionof sanity into a conclusive presumptionof dubiousconstitutionality.51 People v. Wells 52 presented a compelling example of how Troche pre-

vented a defendantfrom disputingproof of a state of mind requirement. Wells was a life-termprisonerwho had been chargedwith the capitaloffense of assaultinga prisonguard"withmalice aforethought."53 At the firstphase of the trial, the defense tried to show that Wells did not act with malice aforethoughtwhen he threw a cuspidor at the prison guard. The defense stated that its experts would testify that Wells was sufferingfrom a "state of tension" which made him abnormallyfearful for his personal safety.54 46. CAL. PENALCODE? 1026 (West 1970). 47. See Louisell & Hazard, Insanity as a Defense: The Bifurcated Trial, 49 CALIF. L. REV. 805 (1961). 48. 206 Cal. 35, 273 P. 767 (1928), appeal dismissed, cert. denied, 280 U.S. 524 (1929). 49. The court mistakenly characterized Troche's instruction as raising a "partial insanity" defense which it rejected because "so far as accountability to the law is concerned there is no middle ground." Id. at 46, 273 P. at 772 (citing People v. Perry, 195 Cal. 623, 639, 234 P. 890, 896 (1925)). 50. Id. at 41, 273 P. at 770. 51. See State v. Shaw, 106 Ariz. 103, 471 P.2d 715 (1970), cert. denied, 400 U.S. 1009 (1971) (bifurcation statute held unconstitutional on due process grounds since it deprived accused of right to have all relevant evidence as to state of mind introduced at first trial); Dix, Mental Illness, Criminal "Intent," and the Bifurcated Trial, 1970 LAW & Soc. ORDER 559. 52. 33 Cal. 2d 330, 202 P.2d 53, cert. denied, 338 U.S. 836 (1949). 53. CAL.PENALCODE? 4500 (West 1970). 54. 33 Cal. 2d at 344-45, 202 P.2d at 62.

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Because of that condition he misinterpreted and over-reacted to external stimuli to such an extent that he mistakenly believed he was defending himself when he assaulted the guard. Although the trial court admitted evidence offered by the prosecution concerning Wells's prior misconduct and general hostility towards prison guards,55it rejected this offer of proof by the defense. On appeal, the California Supreme Court adopted a mens rea model of the defense, thereby correcting the defect Troche had created. The court construed the statutory presumption of sanity at the first stage to mean that the fact-finder must presume that "defendant's mental condition was such that he was able to know the nature of his act and appreciate that it was wrongful and could subject him to punishment." 56 Thus, competent evidence of defendant's mental abnormality, "other than proof of ... insanity, which tends to show that a [then presumed] legally sane defendant either did or did not in fact possess the required specific intent... is admissible." 57 Since the court defined malice as a specific intent element,58 it held that psychiatric testimony which disputed proof of malice must be admitted. Like the court of appeals in Brawner, the Wells majority relied on the 59 voluntary intoxication rule as an analogy to support its ruling that all evidence that disputes proof of the existence of a specific intent element of the crime must be admitted.60 Wells is one of those rare cases in which the strict mens rea approach 61 applies to a legally sane defendant. Its rationale can be used to support admission of psychiatric testimony which tends to show some strong conscious emotional state such as fear, panic,62 or anger, the presence of which directly confirms or negates the subjective mental condition required by the mens rea element, defense or excuse involved. For example, in jurisdictions that recognize imperfect self-defense claims,63 Wells would support admission of expert testimony showing that the defendant irrationally but sincerely believed he was acting in self-defense.64 Wells would also sup55. Id. at 339, 202 P.2d at 59. 56. Id. at 351, 202 P.2d at 661. 57. Id. 58. Faced with a statute that made certain assaults by life-term prisoners a capital offense, it was not surprising that the California Supreme Court construed this statutory reference to malice as requiring a specific intent to act maliciously. See also United States v. Brawner, 471 F.2d 969, 1002 n.75 (D.C. Cir. 1972). 59. 33 Cal. 2d at 357, 202 P.2d at 70. See notes 27-29 and accompanying text supra. 60. 33 Cal. 2d at 357-58, 202 P.2d at 70. 61. See text accompanying notes 19-20 supra. 62. See, e.g., Commonwealth v. Stewart, 461 Pa. 274, 279-80, 336 A.2d 282, 285 (1975). 63. See, e.g., Freeman v. State, 174 Ark. 1035, 298 S.W. 333 (1927); Sanchez v. People, 172 Colo. 168, 470, P.2d 857 (1970); State v. Corneille, 153 La. 929, 96 So. 813 (1932); Thomas v. State, 536 P.2d 1305 (Okla. Crim. App. 1975); Commonwealth v. Miller, 313 Pa. 567, 170 A. 128 (1934). 64. Cf. Commonwealth v. Light, 458 Pa. 328, 334-35, 326 A.2d 288, 292 (1974) (psychiatric evidence admissible on question whether defendant acted out of an honest, bona fide belief that he was in imminent danger, but inadmissible on question whether this belief was reasonable in light of the facts as they appeared to him).

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port the admissionof psychiatrictestimony establishingthat the defendant was actuallyprovoked65 in homicidecases in which the evidenceestablishes that there was adequateprovocation66 to affect a reasonableperson. All these examples are consistent with the strict mens rea approach which sanctionsadmissiononly of evidencewhich shows that defendantdid not in fact entertaina particularmental state. Wells did not legitimizethe broader diminishedcapacity rationale which admits all evidence showing that the defendantmay have been less capable than a normal person of entertainingthe requisite intent.67 Nor did Wells authorize admission of expert testimonywhich merely explains why the defendantentertainedthe requisiteintent.68 Thus, the scope of the strict mens rea approachadopted in Wellsis quite limited. However,subsequentCaliforniacases went beyond Wells by admittingexpert testimonyunder the more expansive diminished capacity mens rea theory. The following discussion outlines this dramatic expansion in California'smens rea defense. 2. California's Expansion of Its Mens Rea Defense-From

Mens Rea

to Mitigation. Nicholas Gorshen was a longshoremanworking at a San Franciscowharf. On the day of the crime, he reportedto work intoxicated and his foreman, Joseph O'Leary, told him to go home. After Gorshen refused to leave the wharf, the two men struggled and O'Leary knocked Gorshento the ground,endingthe brief fight. Gorshenannouncedto everyone on the docks that he was going to go home, get his gun, and come back to kill O'Leary. After receivingsome medicalassistanceat a hospital, Gor65. Cf. Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (retaining objective standard for adequate provocation, but holding admissible psychiatric evidence on subjective issue of whether defendant was in fact provoked). 66. In jurisdictions that have adopted a more subjective definition of provocation, Wells would support the admission of expert testimony which established that the defendant committed the homicide while under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. MODELPENALCODE? 210.3(b) (Proposed Official Draft, 1962). Importantly, such jurisdictions have emphasized that provocation does not promote a purely subjective inquiry because that would "go far towards the admission of a defense of diminished responsibility without any statutory authority . . . to sanction it. There must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers." Regina v. McGregor, [1962] N.Z.L.R. 1069, 1077, 1081-82. 67. To the contrary, Wells carefully distinguished between evidence showing that the defendant did not in fact entertain the requisite mental state and evidence that the defendant was incapable of entertaining the requisite mens rea. Commentators have criticized the Wells fact-capacity distinction as being illogical because evidence of incapacity to entertain the mens rea would obviously establish that the defendant had not, in fact, entertained it at the time of the crime. See, e.g., Lewin, supra note 11. These commentators overlook the function of the mens rea defense as a supplement to the insanity defense. Since the type of mental abnormality that would establish the defendant's incapacity to engage in the minimal cognitive functions required for proof of a specific intent would also establish the actor's insanity, excluding such incapacity testimony from the first stage of the trial insured that the mens rea defense would only admit evidence of mental abnormality which did not establish the actor's insanity. See Fox v. State, 73 Nev. 241, 245-46, 316 P.2d 924, 926-27 (1959); text accompanying notes 39-41 supra. 68. See notes 98-101 and accompanying text infra.

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shen went home, cleaned and loaded his gun, and returnedto the docks. Police officersat the scene stopped Gorshenand searchedhim for weapons. After an unsuccessfulsearch,Gorshenwas released. He immediatelypulled out his gun and fired once at O'Learywith the police at his elbow.69 One could hardly constructa better case of first-degreemurder. The objectivefacts and Gorshen'sdeclarationof his intent providedample proof of premeditationand deliberationwith malice aforethought.70 Yet, Dr. BernardDiamond,a nationallyprominentforensicpsychiatrist,testifiedthat Gorshen'smental abnormalityrobbed him of his capacity to premeditate or entertainmalice. Dr. Diamond told the court that Gorshen had been suffering from chronic paranoid schizophreniafor twenty years prior to the shooting.71 Duringthis period,Gorshenwent into brief trancesin which he heard voices and experiencedvisions. In some of these visions, he saw devils in disguise committingabnormalsexual acts. His sexual hallucinationsincreased in frequencyduring the year before the homicide as he came to believe that he was losing his sexual powers. Dr. Diamondexplainedthat as these fears of impotencygrew, Gorshen'swork took on an exaggeratedimportanceas a tangibleproof of his virility.72 When O'LearyorderedGorshento leave work, Gorshensaw the order as an attack on his manhood. According to Dr. Diamond, Gorshen was then confrontedwith two stark choices-the loss of his sanity or "as an alternative to total disintegration . . . [the development of] an obsessive murderous rage . . ." He stated that "[a]n individual in this state of crisis

will do anythingto avoid the threatenedinsanity,and it's this elementwhich lends strength to his compulsive behavior. ..."

73

The defendant had told

Dr. Diamond that at the time of the shooting "I forgot about God's laws and human'slaws and everythingelse. The only thing was to get that guy. .

. .

74 The trial judge found the defendant guilty of second-degree murder,

apparentlybelieving that the expert testimony created a reasonabledoubt as to the existence of premeditationand deliberationbut not as to malice. In affirmingthis judgment,the CaliforniaSupremeCourt endorsedthe ad69. People v. Gorshen, 51 Cal. 2d 716, 720-21, 336 P.2d 492, 494-95 (1959). 70. At the time of the Gorshen decision, the California Supreme Court had determined that the elements of premeditation and deliberation were satisfied if the killing was perpetrated as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on coolly and steadily, especially according to a preconceived design. Further, the use of "wilful, deliberate, and premeditated" in conjunction would seem to indicate that the legislature meant, by reiteration, to emphasize the intent to require, as an element of first-degree murder, considerably more reflection than the mere amount of thought necessary to form the intention. People v. Caldwell, 43 Cal. 2d 864, 869, 279 P.2d 539, 542 (1955) (emphasis in original; citations omitted). 71. 51 Cal. 2d at 722, 336 P.2d at 495. Gorshen was fifty-six years old at the time of his trial. 72. Id. 73. Id. at 722, 336 P.2d at 496. 74. Id. at 723, 336 P.2d at 496.

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missibilityof Dr. Diamond'stestimonyon the issues of premeditation,deliberation,and malice.75 Most commentaryon People v. Gorshenhas focusedon the court'sdecision to construe "malice aforethought"as a specific mental state requiring proof that the defendantacted in conscious disregardof the law's obligations.76 But this holdingpales in significancecomparedto Gorshen'sradical expansionof the Wellsrationalefor admittingevidenceof defendant'smental abnormalityat the firststage of the trial. The experttestimonyin Wellsemphasizedthe defendant'sconsciousmisperceptionsof being in dangeras proof that he did not act with the requisitemalice. On the other hand, the expert testimonyin Gorshendid not deny that Gorshenconsciouslyentertainedan intent to kill. Instead,Dr. Diamond offeredan explanationas to how Gorshen's conscious planningof the killing was the productof an unconscious disease process which negated or diminishedGorshen'svolitional controls. By holding that such testimony was competent evidence, the California Supreme Court radically expanded the nature of the subjective inquiry authorizedby its mens rea defense.77 The court furtherbroadenedits mens rea defense in People v. Wolff.78 As in Gorshen,the facts of the Wolffcase made a compellingcase for firstdegree murder. In his confession to the police, Wolff admitted he had decided to kill his mother so that he could take girls to his house and rape them. He carefullyplannedthe killing,includingthe selection and concealment of the murder weapon, days before the homicide. Wolff consummated his plan by strikinghis mother from behind with an ax. After a terriblestruggle,she crawled to anotherroom where Wolff caught her and chokedher to death. He then turnedhimselfin to the police.79 The jury rejected Wolffs insanity defense despite the uniform consensus of all the expert witnesses that he was schizophrenicand legally insane at the time of the killing.80 On appeal, the court reaffirmedits adherenceto the M'Naughtontest 81and refusedto overturnthe jury'sfinding of sanity.82 75. Id. at 735, 336 P.2d at 504. 76. See, e.g., Lewin, supra note 11, at 1080-83. Indeed, Gorshen's dicta created a new category of voluntary manslaughter where no reasonable provocation was involved, thus destroying the objective distinction between murder and manslaughter in California. See note 105 infra. 77. Contra, State v. Sikora, 44 N.J. 453, 479, 210 A.2d 193, 207 (1965) (Weintraub, C.J., concurring). Despite the opposite results, the facts and expert testimony in Sikora present a striking analogy to Gorshen. Although New Jersey had accepted the mens rea defense, see State v. DiPaolo, 34 N.J. 279, 168 A.2d 401, cert. denied, 368 U.S. 880 (1961), the New Jersey Supreme Court has rejected the view that evidence of unconscious pathology may be used to negate a consciously entertained intent. 78. 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964). 79. Id. at 806-07, 394 P.2d at 965-66, 40 Cal. Rptr. at 277-78. 80. Id. at 803-04, 394 P.2d at 964, 40 Cal. Rptr. at 276. 81. California's version of M'Naughton required proof of the actor's emotional appreciation of the act's wrongfulness as well as cognitive knowledge of the nature and quality of the act. Id. at 800-01, 394 P.2d at 962, 40 Cal. Rptr. at 274. The court concluded that the test had become "an integral part of the legislative scheme for the appraisal of criminal responsibility in California and any change therein should come from the Legislature." Id. at 803, 394 P.2d at 963, 40 Cal. Rptr. at 275. 82. After examining the record, the court found substantial evidence of legal sanity

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The rejection of Wolff's insanity defense starkly illustrated one of the major criticisms of the M'Naughton rule-it does not exculpate someone who knows and understands exactly what he is doing but because of his mental disabilities cannot stop himself from committing a crime.83 Thus, if the California Supreme Court had looked only to its insanity test, it would have had to affirm the conviction of a severely disturbed fifteen-year-old for first-degree murder. To avoid this result, the court used its WellsGorshen defense to reduce Wolff's liability to a non-capital offense.84 However, the facts clearly indicated that Wolff formed a specific intent to kill days before the homicide, devised a plan to carry out his intent, had ample opportunity to think about what he was going to do and did think about it before he coolly dispatched his victim. The expert testimony did not dispute the fact that Wolff possessed the minimal mental capacity needed to premeditate and deliberate, nor did it raise any doubt as to whether Wolff did in fact premeditate and deliberate before killing his mother. The California Supreme Court resolved this problem by redefining the traditional concepts of premeditation and deliberation. The court suggested that by dividing the crime of murder into two degrees, the legislature had recognized that there was a "difference in the quantum of personal turpitude of the offenders." 85 Therefore, the special mens rea elements for first-degree murder must provide standards by which this difference in personal turpitude can be measured. According to the court, the standard must be a qualitative one which focuses on the manner in which the defendant thought about his criminal action: In the case now at bench, in the light of defendant's youth and undisputed mental illness . . . [t]he true test must include consideration of the somewhat limited extent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act.... Certainly in the case now at bench the defendant had ample time for any normal person to maturely and appreciatively reflect from defendant's objective conduct and declarations, including his ability to devise and execute an elaborate plan, his consciousness of what he was doing, and his orientation "as to time, place, and those persons who were present." Id. 805-06, 394 P.2d at 965, 40 Cal. Rptr. at 277. The court also noted that some of the experts' conclusions were based on volitional criteria that California's insanity test did not recognize as a proper basis for inferring insanity. Id. at 814-15, 394 P.2d at 971, 40 Cal. Rptr. at 283. 83. In a jurisdiction that used either the Durham or Model Penal Code tests, see note 22 supra, Wolff would probably not have been convicted given the nature of the crime (matricide), his youth, and the expert consensus concerning his mental disabilities. 84. In prior and subsequent decisions, different justices of the California Supreme Court conceded that amelioration of M'Naughton was the motivating force behind development of the defense. See People v. Kelly, 10 Cal. 3d 565, 579-80, 516 P.2d 875, 885, 111 Cal. Rptr. 171, 181 (1973) (Mosk, J., concurring); People v. Henderson, 60 Cal. 2d 482, 490, 386 P.2d 677, 682, 35 Cal. Rptr. 77, 82 (1963) (Traynor, J.); text accompanying notes 136-139 infra. 85. 61 Cal. 2d at 820, 394 P.2d at 974, 40 Cal. Rptr. at 286 (citing People v. Holt, 25 Cal. 2d 59, 89, 153 P.2d 21, 37 (1944)). A difference in the degree of moral culpability between first and second degree murderers is not the only possible justification for dividing murder into different degrees. See Dix, supra note 18, at 322.

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upon his contemplatedact and to arrive at a cold, deliberated and premeditatedconclusion. He did this in a sense-and apparentlyto the full extent of which he was capable. But, indisputably on the record, this defendantwas not and is not a fully normal or mature,mentallywell person. He knew the difference between right and wrong;he knew the act was wrong and nevertheless carried it out. But the extent of his understanding,reflection upon it and its consequences, with realization of the enormity of the evil appears to have been materially . . . vague

and detached.86 Thus, the court reduced the judgmentto murderin the second degree because Wolff's mental illness had robbed him of the capacity, which undisturbed killers theoreticallypossess, to evaluate the seriousnessof his contemplatedaction in a meaningfulmanner. In this way, Wolff shifted the focus of the mens rea inquiry from assessing whether a defendant had entertaineda specificintent to evaluatingwhy and how he had entertainedit. In People v. Ray,87the court expanded the mens rea defense to its logical extremein homicidecases.88 Prior to Ray, the Californiacourtshad not given diminishedcapacity-involuntary manslaughterinstructionsdue to voluntaryintoxicationunless there was evidence of defendant'sunconsciousness to dispute the existence of the intent to kill.89 In Ray, however, the CaliforniaSupremeCourt reversedthe defendant'sconvictionfor voluntary manslaughterbecause the trial court had not given a diminishedcapacityinvoluntarymanslaughterinstructionwhich related evidence of a conscious defendant'sconfusedmental state to his intent to kill. The court ruled that "[t]he weight of the evidence of defendant'sintoxicationwas sufficientfor a juryto have believedthat althoughhe was conscioushe lackedboth malice and an intentto kill."90 Unfortunately,Ray failed to explainwhat type of evidencewould support a findingthat a legally sane defendant,who is presumedat this stage to have had sufficientcapacityto understandthe nature and quality of his act, did not intend its naturaland probableconsequences. If Ray had sufficient capacityto understandwhat he was doing in leaving the scene of the initial fight with the victim, going home, returningwith a gun and shooting the 86. 61 Cal. 2d at 821-22, 394 P.2d at 975-76, 40 Cal. Rptr. at 287-88 (emphasis in criginal). 87. 14 Cal. 3d 20, 533 P.2d 1017, 120 Cal. Rptr. 377 (1975). 88. California courts have applied the diminished capacity doctrine to specific intent crimes other than homicide. E.g., People v. Mosher, 1 Cal. 3d 379, 461 P.2d 659, 82 Cal. Rptr. 379 (1969) (perpetration or attempt to perpetrate rape, robbery and burglary); People v. Nance, 25 Cal. App. 3d 925, 102 Cal. Rptr. 266 (1972) (burglary); People v. Gentry, 257 Cal. App. 2d 607, 65 Cal. Rptr. 235 (1968) (feloniously issuing checks without sufficient funds); People v. Glover, 257 Cal. App. 2d 502, 65 Cal. Rptr. 219 (1967) (battery upon a peace officer). 89. See People v. Graham, 71 Cal. 2d 303, 310, 455 P.2d 153, 157, 78 Cal. Rptr. 217, 221 (1969); People v. Castillo, 70 Cal. 2d 264, 449 P.2d 449, 74 Cal. Rptr. 385 (1969); People v. Conley, 64 Cal. 2d 310, 324 n.4, 411 P.2d 911, 920 n.4, 49 Cal. Rptr. 815, 824 n.4 (1966). 90. 14 Cal. 3d at 31, 533 P.2d at 1023, 120 Cal. Rptr. at 383.

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victim, how can it be said that he lacked the capacity to intend the resulting harm? The court indicatedits desire not to burden the diminished capacity doctrine with "fine distinctions"91 but its ruling requiresthe jury to make an exceedingly subtle, if not impossible, distinction between capacity to intend a specific harm and capacity to understandthe nature and qualityof one's acts.92 How did the CaliforniaSupremeCourt get to this point of asking the jury to make distinctionsworthy of a medieval schoolmaster? The next section will examine the reasons why the Californiaexperiencehas led to this and otherundesirableresults. B. Analysis of the CaliforniaDiminishedCapacityApproach: A DiminishedResponsibilityTest In Mens Rea Clothing The CaliforniaSupremeCourt'sdecisions in Gorshen, Wolff, and Ray reflectedthe court's frustrationwith the criminallaw's traditionalconception of mens rea. Since psychiatricinsightsconcerningthe actor'sbehavior rarely relate to this concept, the court broadenedits view of mens rea by adopting a diminished capacity test which authorized a more subjective inquiryinto the actor'spsyche. By requiringproof of somethingmore than the actor'sconscious awarenessof the proscribedconduct, its consequences, and the surroundingcircumstances,the court hoped that the fact-finder would be able to use the experts' testimony to make more precise culpabilityjudgments. Articulationof what that "somethingmore" is has proven to be an extremely difficult task. The California Supreme Court has relied on a series of factors such as the bizarre nature of the criminal act,93 defendant's

materiallyvague and detachedunderstandingof the enormityof the crime,94 91. Id. 92. See discussion of the problem in Commonwealth v. Simms, 228 Pa. Super. Ct. 85, 95, 324 A.2d 365, 370 (1974), rev'd per curiam, 462 Pa. 26, 333 A.2d 477 (1975). See also United States v. Trujillo, 497 F.2d 408, 409 (10th Cir. 1974). 93. Compare People v. Nicolaus, 65 Cal. 2d 866, 423 P.2d 787, 56 Cal. Rptr. 635 (1967) (jury verdict reduced to second degree murder where father killed three children) and People v. Goedecke, 65 Cal. 2d 850, 423 P.2d 777, 56 Cal. Rptr. 625 (1967) (jury verdict reduced to second degree murder where eighteen-year-old killed his family and then concealed his action by pretending to discover the grisly scene) with People v. McQuiston, 12 Cal. App. 3d 584, 90 Cal. Rptr. 687 (1970) (defendant killed wife and then decided children would be better off dead; second-degree murder for wife's death and first-degree murder for children's deaths) and In re Kemp, 1 Cal. 3d 190, 460 P.2d 481, 81 Cal. Rptr. 609 (1969) (first-degree murder where defendant raped and killed a woman with whom he was unacquainted; court noted that crimes were not bizarre and that rape provided motive for murder). In most cases, the bizarre nature of the crime is used as an objective factor which supports the belief that the crime is inexplicable without reference to defendant's mental abnormality. 94. Compare People v. Wolff, 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964), discussed in notes 78-86 supra, with People v. McQuiston, 12 Cal. App. 3d 584, 589, 90 Cal. Rptr. 687, 689-90 (1970) (defendant's coolness and calmness in making sure his children were dead before calling the police and his calm confession supported rejection of a diminished capacity defense).

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and defendant'slack of personal turpitude95 to support a findingof diminished capacity"negating"premeditationand deliberation.96However, these factors have not been consistently applied by juries, and appellate courts have added to the confusion by the arbitraryand unpredictablemannerin which they have consideredor ignored these criteria, or even used them to supportconvictionsfor first-degreemurder.97 Of course, inconsistencyand the absence of objectivecriteriato guide the fact-finder'sdecisionare the inevitableby-productsof the subjectiveindividualizedinquirywhichthe defensefosters.Since the diminishedcapacitydefense requiresthe jury to make an individualizedculpabilityjudgmentin each case, it does not lend itself to a consistentand principledapplication. But these defects do not explain why Wolff shifted the focus of the mens rea inquiryfrom assessingwhethera defendanthad entertaineda specific intent to evaluatingwhy and how he had entertainedit. Nor do they explain why Ray requiresthe jury to make some exceedinglysubtle, if not impossible, discriminationsin applyingthe test. Cases like Wolff and Ray can only be understoodby examiningthe nature of the expert testimonyadmittedunder the diminishedcapacitytest. ConsiderDr. Diamond'stestimonyin Gorshen. Diamond assumed that a defendant'sconsciously entertainedmental state may be "negated"when the expert testimony establishes that it was the product of unconscious pathologicalforces98 instead of the actor's free will. Diamond suggested 95. The lack of personal turpitude is often shown by evidence that indicates that the crime was totally out of keeping with defendant's character. Compare People v. Goedecke, 65 Cal. 2d 850, 423 P.2d 777, 56 Cal. Rptr. 625 (1967), discussed in notes 1-5 supra, with People v. Gibson, 23 Cal. App. 3d 917, 101 Cal. Rptr. 620 (1972) (first-degree murder in case in which distraught father killed his autistic son). This factor can cut both ways as the prosecution may argue that defendant's capacity to control himself in the past undermines the contention that he could not control himself at the time of the crime. See People v. Sirhan, 7 Cal. 3d 710, 497 P.2d 1121, 102 Cal. Rptr. 385 (1972), cert. denied, 410 U.S. 947 (1973). 96. Despite his general conclusion that most mens rea elements do not provide useful vehicles for the correlation of mental abnormality with degrees of criminal liability, Professor Dix suggests that premeditation is one state of mind requirement that does lend itself "to the type of analysis that mental health personnel feel is appropriate," because it relates to a mental process which requires proof of more than the mere formation of a conscious intent to do something and to considering the steps necessary to effectuate that desire. Dix suggests that the "something more" required is "critically evaluating the pros and cons of proceeding to effectuate the desire." Dix, supra note 18, at 325. But what subjective factors must be considered to prove the adequacy of this critical evaluation of the "pros and cons"? At a minimum, this critical evaluation standard should require that the defendant have sufficient mental capacity to realize that his contemplated action was prohibited by law but that he had something to gain by the act of killing. Under such a standard, Wolff premeditated his killing because he realized his act was wrong, and he had something to gain by his mother's disappearance because it would be easier to take girls to his home. What other pros and cons can be required? Can we consider the slight probability that this "gain" would be realized to show the inadequacy of this critical evaluation? If Dix means to interject a qualitative assessment about the rationality of this critical evaluation, then his definition of premeditation runs afoul of the same problems which beset the Wolf standard. 97. See notes 93-95 supra. 98. 51 Cal. 2d at 725, 336 P.2d at 497.

OF CRIME210 (1967). DILEMMAS

See also S. HALLECK, PSYCHIATRYAND THE

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that psychiatryneed not force its own deterministicassumptionsabout man's behavior into criminallaw doctrine. Experts should merely offer an explanationof why some individualsdeviatefrom the criminallaw's "commonsense posit of free will." 9 By assumingthat free will exists to the extent that the individualis free of mental illness,'00the expert may infer that the mentallydisableddefendant'scriminalintent resultedmore from unconscious pathologicalforcesthanfree consciouschoice. This rationaleminimizesthe significanceof defendant'sconscious cognitive and affectiveprocessesbecause they were the product of unconscious pathology. In effect, Diamondwould have the fact-findermake a Durhamlike inquiry 101 into whether the defendant's consciously entertained mens rea

(instead of his criminalact) was a product of his abnormalmental condition. Certainly,an affirmativeanswer to this inquirymay justify a finding of reduced culpability,but the fact-findercannot use evidence of a defendant's unconscious pathology to distinguish between different mental states entertainedat the conscious level because it applies to all of them with equalforce.102 The impossibilityof correlatingmost experttestimonyto statutorystate of mind requirementsforced the California Supreme Court to alter its conceptionof mens rea. In Wells, the court's adoptionof the strict mens rea model reflectedits view of mens rea as a positivedescriptionof particular mental states which defendants consciously entertain at the time of the crime. The diminished capacity rationale of its later cases reflected a broader and more amorphousview of mens rea which allows the factfinder to consider any evidence which may negate, excuse, or mitigate the actor'sculpability. Thus, in Gorshen,Wolff,and Ray experttestimonyconcerningthe actor'svoluntaryintoxicationor mental disabilitieswas admitted under this broader view of mens rea because it described conditions that may have mitigatedthe actor's culpability. Despite its denials, the court 99. 51 Cal. 2d at 724 n.4; 336 P.2d at 496-97 n.4. 100. See S. HALLECK, supra note 98, at 210. 101. See note 22 supra. 102. Even Dr. Diamond has conceded that psychiatry has little to offer the criminal law on the precise question of whether the defendant consciously performed the mental operations necessary to prove a specific intent: Unless the psychiatric expert can testify as to exactly what condition the defendant suffers from and can give a particular description of the manner in which the abnormality affects those mental and emotional processes relevant to the criminal act, he will have no credibility before the jury. However, the psychiatric expert, if he is scrupulously honest, can seldom so testify. His evidence should rather sound something like this: I think, but I am not certain, that the defendant has a mental disease, or an abnormality, or what merely may be a normal variation, which has substantially affected his mental or emotional processes in ways which I find difficult to understand and explain to you and this has possibly, but maybe not, substantially affected his behavior controls in ways which could be, but are not necessarily, relevant to the criminal act... If this is the true expert opinion, it will have little significance to the jury no matter how it is fleshed in with clinical details. Diamond, From Durham to Brawner, A Futile Journey, 1973 WASH.U.L.Q. 109, 114 (emphasis in original).

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had covertly adopted the diminished responsibilitymodel of the defense because its diminishedcapacity test invited the fact-finderto treat the defendant'smentalabnormalityas a formalmitigatingfactor. The doctrinalmorass resultingfrom the court's expansionof the mens rea inquirystems from its refusalto acknowledgein theory what it is doing in practice. Instead of admittingthat the Wells rule has graduallyevolved into a diminished responsibilitydefense, the court has insisted that the expert testimonyin Gorshen, Wolff, and Ray was admittedbecause it disputed proof of statutorystate of mind requirements. The Californiadefense admits expert testimony under this broader view of mens rea as a formal

mitigatingfactor but then asks the fact-finderto apply it to the legislature's narrowerview of mens rea as a positive descriptionof consciously entertained mental states. Not surprisingly,the expert testimonyadmittedunder this broaderview of mens rea does not correlatewith any specificstatutory state of mindrequirement. The court's expanded view of mens rea may justify the consideration of defendant'smental abnormalityas a formal mitigatingfactor, but it cannot simultaneouslybe used, like statutorystate of mind requirements,as a grading device to distinguishbetween various degrees of murder or manslaughter. The futility of using this broaderview of mens rea as a grading device is evidencedby the court'sdecisionin People v. Conley.103Since the court insisted that diminished capacity testimony is admitted to dispute proof of specific intent elements,it was forced to distinguishbetween types of experttestimonybearingon each element. In Conley, the court tried to describe how evidence of a defendant'sdiminished mental capacity may negate malice but not premeditationand deliberation. Conley had killed his former lover and her husbandthree days after she ended their affair. On the day of the crime he bought a rifle, practicedshooting, and told his friends that he was going to kill the couple. He then proceededto carry out his homicidaldesign. At trial, Conley relied on a diminishedcapacitydefense. The evidence showed that he had been drinkingheavily on the day of the crime. Conley testifiedthat he did not intend to kill the couple and that he remembered nothing about the event.'04 The trial judge instructedthe jury to consider Conley'sintoxicationin determiningwhetherhe had the capacityto maturely and meaningfullyunderstandthe gravity of his contemplatedact-Wolff's test for premeditation. The jury convicted Conley of first-degreemurder, thereby implicitly finding that Conley premeditatedthe act despite his intoxication. The CaliforniaSupremeCourt reversedthe conviction, finding that a diminishedcapacity instructionshould also have been given on the issue of malice. The court explained that Conley's intoxicationmay have pre103. 64 Cal. 2d 310, 411 P.2d 911, 49 Cal. Rptr. 815 (1966). 104. Id. at 315, 411 P.2d at 914, 49 Cal. Rptr. at 819-20.

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vented him from understandinghis social obligationto act within the law, which is how the court definedmalice.105However, the court did not suggest how it is possible for a defendantto premeditateand yet lack malice: it would seem that understandingthe gravityof his contemplatedact necessarily implies an understandingof his obligationto obey the law.'06 Thus, Conley illustratesthe doctrinal morass that results from the court's perpetuation of the legal fiction that diminished capacity testimony can be correlatedto differentstatutorystate of mindrequirements. As long as courts maintainthis legal fiction, the jury will not be able to make a rationaldecision on the actual question of mitigationpresented by defendant'sexpert testimony. It should not be surprisingthat juries act in an erraticmannerwhen they are asked to decide whetherthe defendant premeditatedthe killing when it is obvious from the facts that he did so.l07 Nor should it come as a shock that juries often have difficultyin understandingor balk at applyingsuch standardsas Wolff'scapacity"to maturely and meaningfullyreflect upon the gravity of the contemplatedact" to de-

105. Id. at 320-22, 411 P.2d at 917-18, 49 Cal. Rptr. at 821-22. The Conley decision implicitly expanded the scope of the mens rea defense by giving a broad meaning to the malice element. The court relied in part on its decision in Gorshen that adequate provocation was not the sole means by which malice could be negated. Id. at 317-18, 411 P.2d at 915-16, 49 Cal. Rptr. at 819-20. Gorshen, however, did not support reversal because the defense there could be characterized as a provocation defense defined in purely subjective terms. To apply the Gorshen rationale to an intoxicated defendant who killed his former lover and her husband three days after she left him would stretch a subjective provocation rationale past its breaking point. Even if the California Supreme Court were willing to use mental abnormality as a formal mitigating factor, it would make little sense to treat evidence of voluntary intoxication in a similar fashion. See Bishop v. United States, 107 F.2d 297 (D.C. Cir. 1939); Warner v. State, 56 N.J.L. 686, 29 A. 505 (1894); note 128 infra. The Conley court therefore emphasized that [a] finding of provocation sufficient to reduce murder to manslaughter is not the sole means by which malice can be negated and voluntary manslaughter established. A person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease, defect, or intoxication, and in such cases his killing, unless justified or excused, is voluntary manslaughter. 64 Cal. 2d at 318, 411 P.2d at 916, 49 Cal. Rptr. at 820. 106. In subsequent cases the California Supreme Court resolved this dilemma by defining malice in terms that require more than mere cognitive awareness of the duty to obey social mandates. In People v. Poddar, 10 Cal. 3d 750, 518 P.2d 342, 111 Cal. Rptr. 910 (1974), the court observed that malice may be implied from a finding that the defendant acted with "wanton disregard for human life." The court noted: If it is established that an accused, because he suffered a diminished capacity, was unaware of or unable to act in accordance with the law, malice could not properly be found and the maximum offense for which he could be convicted would be voluntary manslaughter. Id. at 758, 518 P.2d at 348, 111 Cal. Rptr. 916 (emphasis added). Thus under Poddar's definition of implied malice, a defendant could be aware of his obligations to society and thereby meaningfully reflect upon the gravity of his act but still not entertain malice because of his incapacity to control his conduct. This volitional definition of malice also serves the useful purpose of ameliorating the harshness of an insanity test that does not consider defendant's volitional capabilities in determining criminal responsibility. See People v. Cantrell, 8 Cal. 3d 672, 685-86, 504 P.2d 1256, 1264-65, 105 Cal. Rptr. 792, 800-01 (1973). But see People v. Morse, 70 Cal. 2d 711, 452 P.2d 607, 76 Cal. Rptr. 391 (1969), cert. denied, 397 U.S. 944 (1970) (California Supreme Court rejects volitional definition of malice). 107. See People v. Goedecke, 65 Cal. 2d 850, 423 P.2d 777, 56 Cal. Rptr. 625 (1967); People v. Wolff, 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964).

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fendantswho kill without justificationor excuse.'08 Most importantly,the court's perpetuationof this legal fiction prevents it from confrontingthe difficult policy questions raised by a defense that uses evidence of defendant'smental abnormalityas a formal mitigatingfactor.109Part III will explorethese questions. III.

A.

THE DIMINISHED RESPONSIBILITY DEFENSE

Formal Mitigation and the Problem of Social Control

Given the difficultiesin correlatingdefendant'smental abnormalityto statutory state of mind requirements,the diminished responsibility doctrine110 would seem to offer the criminal law a simpler and more honest way of treating the disturbedbut sane offender. A mentally abnormal defendantwho has difficultycontrollinghis anti-social impulses or appreciating the moral significanceof his actions is already less culpable in the law's eyes. This is evidencedby the common practiceof judges who consider psychiatricevidence at sentencing.ll The diminished responsibility doctrinemerelypermitsthe fact-finderas well as the sentencingauthorityto make more individualizedculpabilityjudgments. Despite the simplicityof this model, American courts have refused to adopt in theory what some jurisdictions,such as California,have done in practice.l2 A numberof reasonscan be advancedto explainwhy Americancourts have rejected the diminishedresponsibilitymodel. Some courts have suggested that acceptanceof the diminishedresponsibilitydoctrinewould force the judiciary to rewrite the legislative frameworkfor the gradations of offensesand punishments.1l3Since most Americanjurisdictionsdo not have a consistent pattern of graduatedoffenses, there would be cases in which the jury could not return a verdict for a lesser included offense despite a finding of diminished responsibility. However, this reasoning does not explain why courts have refused to apply the defense to homicide crimes whichare graded. Another explanationfor the unpopularityof the diminishedresponsibility model is that it appears to establish a middle ground of partial responsibilitythat is inconsistent with the criminal law's view that the defendantis either criminallyresponsiblefor his act, and thereforesubject 108. In the Sirhan Sirhan trial, the prosecutors ridiculed the utility of this test in their final summations to the jury. See R. KAISER,R.F.K. MUST DIE! 483 (1970). 109. One such policy question is whether the California Supreme Court would be willing to allow evidence of voluntary intoxication as a formal mitigating factor. See note 128 infra. 110. See notes 14-17 and accompanying text supra. 111. See, e.g., State v. Janovic, 101 Ariz. 203, 205, 417 P.2d 527, 529 (1966), cert. denied, 385 U.S. 1036 (1967); State v. Mount, 30 N.J. 195, 152 A.2d 343 (1959); Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969); Cowles v. State, 510 S.W.2d 608 (Tex. Crim. App. 1974). 112. See notes 101-09 and accompanying text supra. 113. See, e.g., Stewart v. United States, 275 F.2d 617 (D.C. Cir. 1960), rev'd on other grounds, 366 U.S. 1 (1961).

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to punishment,or not responsibleand entitled to complete exoneration.ll4 However, the term "diminishedresponsibility"refers not to one's legal liabilityfor punishment,but to a psychologicalconcept of mental "capacityresponsibility"115 which can vary dependingon the degreeof the defendant's mental impairment. Establishingthat a defendantis criminallyresponsible and therefore punishable says nothing about the proper degree of that punishment. There is no theoreticalinconsistencybetween using evidence of the accused's mental abnormalityto negate his responsibilitywhen it establisheshis incapacityto act voluntarily116 and using it to mitigate the punishmentof a responsibleoffenderwhose mental disabilitiesreducedhis capacity to act voluntarily. Thus, a finding of diminished responsibility does not negate the defendant'scriminal responsibility;it merely mitigates his punishmentbecause his mental disabilitymakes him less culpable than the normaldefendantwho committedthe identicalcriminalact. There remains,however, one serious objectionto adoptingthe diminished responsibilitydefense. By treating the accused's abnormalityas a formal mitigatingfactor which the jury considersin determiningthe degree of criminal liability, the diminished responsibility defense weakens the criminallaw's social control functionand upsets its delicatebalance between competingsubjectiveand objectivetheoriesof liability.ll7 Consider,for example,the problemof the mentallydisabledkiller who poses a continuingthreat to society after conviction. Assume the jury has found him criminallyresponsible,but there is little doubt that his mental disabilitiesaffectedhis criminalaction and made it exceedinglydifficultfor him to act in accordancewith the law. Treating his mental abnormality as an informal mitigatingfactor during sentencing would permit an individualizedsubjectiveevaluationof the defendant'scharacterand situation.l"8 Recognizingat this stage "thatindividualculpabilityis not always measured by the categoryof the crime committed"119would not frustratethe deterrent 114. See State v. DiPaolo, 34 N.J. 279, 294, 168 A.2d 401, 409, cert. denied, 368 U.S. 880 (1961). 115. H.L.A. Hart distinguishes between legal liability for punishment (criminal responsibility) and "capacity-responsibility." He defines the latter as "capacity to understand what [one] is required by law to do or not to do, to deliberate and to decide what to do, and to control [one's] conduct in the light of such decisions." H. L. A. HART,supra note 15, at 218. "Capacity-responsibility," which is one of the chief criteria for determining criminal responsibility, can vary and be diminished because it refers to the offender's psychological mechanisms. Id. at 215-22, 227-30. The presence of even serious mental abnormality at the time of the criminal act does not by itself say anything about whether the defendant should be held legally accountable for his act. The offender's mental disability may not have had any appreciable effect on the criminal act involved. Even if some connection between the disability and the act is established, it may not be sufficient to negate the defendant's responsibility in the jury's eyes. Ultimately, the question of criminal responsibility is a moral judgment that cannot be equated with a medical judgment about the degree of defendant's capacity-responsibility. See United States v. Brawner, 471 F.2d 969, 982 (D.C. Cir. 1972). 116. See H. L. A. HART,supra note 15, at 15. 117. See notes 21 & 26 supra. 118. See Furman v. Georgia, 408 U.S. 238, 402-03 (1972) (Burger, C.J., dissenting); Williams v. New York, 337 U.S. 241, 247-49 (1949); Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937). 119. Furman v. Georgia, 408 U.S. 238, 402 (1972) (Burger, C.J., dissenting).

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and protectivegoals of punishmentbecause the sentencingjudge retainsthe authorityto considerother mitigatingand aggravatingfactors, includingthe offender'scontinuingdangerousnessto society, before passing sentence. Contrast this process with that engendered by treating his mental abnormalityas a formal mitigatingfactor. The diminishedresponsibility defense transferspartial sentencing authorityfrom the judge to the jury. Under a theory of formal mitigation,the jury must reduce the grade of the offense if it finds diminishedresponsibilityregardlessof aggravatingfactors such as the offender'sdangerousness. A reducedterm of incarcerationmay reflect the offender'sdiminishedculpability,but the legislature'sgradingof offensesis also designedto serve deterrentand protectivegoals which could be underminedby this reduction.120Thus, the diminished responsibility doctrine fosters an irrational, albeit partial,l21sentencing decision that focuses exclusivelyon one factor, instead of permittingthe jury to consider all the relevant informationconcerning the offender's character and the circumstances of the particular offense. Although the jury may still covertly consider other factors 122 before returning a verdict, its sub rosa

evaluationwill be speculativeat best. Many of these factors will not be adequately developed at trial and some, such as the defendant's prior record, may not be touched upon at all because of their prejudicialimpact on the jury'sguiltdeliberations.l23 Admittedly,the transferof partial sentencing authorityto the jury is 120. See Dix, supra note 18, at 322. Some advocates of the diminished responsibility defense have recognized that the defense may lead to shorter sentences for more dangerous offenders. See Weihofen, Partial Insanity and Criminal Intent, 24 ILL. L. REV. 505, 526 (1930); Comment, A Punishment Rationale for Diminished Capacity, 18 U.C.L.A. L. REv. 561, 572-76 (1971). Weihofen suggested that statutory provision be made for "treatment" after the sentence had expired. Weihofen, supra at 526-27. The net effect of such a provision would be a "Catch-22" mitigation doctrine that would reduce the punishment but then extend it, perhaps beyond the term the offender would have received without mitigation. It has also been suggested that the defense be restricted to non-dangerous mentally abnormal offenders. See Comment, supra at 575. Moreover, involuntary civil commitment of a dangerous offender after completion of his reduced term of imprisonment is unlikely unless his mental condition has deteriorated during his imprisonment. "[I]f the asserted abnormality would be insufficient to give rise to a criminal defense [of insanity], it seems unlikely that it would provide an adequate basis for civil commitment." Bethea v. United States, 365 A.2d 64, 92 n.61 (D.C. 1976). See also McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir. 1962). This observation applies with particular force to those jurisdictions where the petitioning authority bears the burden of proving the offender's dangerous abnormality beyond a reasonable doubt. See In re Ballay, 482 F.2d 648 (D.C. Cir. 1973). 121. Formal mitigation only begins the sentencing process by placing an upper limit on the severity of the punishment to be imposed by reducing the grade of the offense. The sentencing authority may make an individualized sentencing decision within the range of penalties established by the legislature for the lesser offense. 122. For example, consideration of defendants' dangerousness may explain some of the inconsistency in the California jury decisions discussed at notes 93-95 and accompanying text supra. See, e.g., In re Kemp, 1 Cal. 3d 190, 460 P.2d 481, 81 Cal. Rptr. 609 (1969) (affirming first-degree murder conviction of defendant who raped his victim, beat her to death, and then mutilated the corpse despite compelling evidence of mental abnormality). See also Note, The Diminished Capacity Defense to Felony-Murder, 23 STAN. L. REV. 799 (1971). 123. See State v. Forcella, 52 N.J. 263, 288, 245 A.2d 181, 194 (1968), rev'd mem. sub. nom. Funicello v. New Jersey, 403 U.S. 948 (1971).

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inherentin any process of formal mitigation. For example, the accepted defenses of voluntaryintoxicationand provocationalso give the jury such partial sentencing power. Why then should the criminal law exclude mental abnormalityas a formal mitigating factor when it has a similar impacton the defendant'scapacityto obey the law?124 The analogy to voluntary intoxication is faulty because those courts which admit evidence of intoxicationdo so for the limited purpose of permittingthe jury to considerwhetherdefendant'sintoxicationpreventedhim from entertainingthe requisitespecific intent.l25 Courts often note in jury instructionson voluntary intoxication that evidence of inebriation which merelyshows that the defendanthad special difficultyin controllinghimself should not be considered.126 Although the voluntaryintoxicationdoctrine may support analogous use of mental abnormalityto negate a specific intent,'27the doctrinedoes not supportthe use of mental abnormalityas a formalmitigatingfactor.l28 The analogy to provocation,while perhaps more compelling, is also somewhat misleading. The provocation defense is qualifiedby objective criteriawhich establishthat the source and degree of the provocationare as importantas its subjectiveimpact on the offender'svolitionalcontrols. The defendantmust introduceevidence to show not only that he was provoked, but that a reasonable person would have been provoked by the victim's actions and would not have had sufficienttime to "cool off" before committingthe criminalact.'29 Such objectivequalificationsserve a useful function. As Michael and Wechslerhave observed, [M]ost men do not kill on even the gravest provocation; [but] the point is that the more stronglythey would be moved to kill by circumstancesof the sort which provoked the actor to the 124. See Taylor, supra note 18, at 637-38. 125. See, e.g., Heideman v. United States, 259 F.2d 943, 946 (D.C. Cir. 1958), cert. denied, 359 U.S. 959 (1959); Commonwealth v. Graves, 461 Pa. 118, 122-123, 334 A.2d 661, 663 (1975). See also CAL.PENALCODE?22 (West 1970). 126. See, e.g., State v. Martin, 4 N.J.L.J. 339, 342 (Essex County Ct. 1881). See also MODELPENALCODE? 2.08(1), Comments 2 & 3 (Tent. Draft No. 9, 1959). 127. See United States v. Brawner, 471 F.2d 969, 999 (D.C. Cir. 1972), discussed in text accompanying notes 22-29 supra. 128. Despite statutory and judicial language tying voluntary intoxication to the absence of specific intent, the covert purpose of the rule is to empower the jury to mitigate the punishment of an intoxicated offender because he is less culpable than his sober counterpart. However, given the high correlation between drinking and violent crime, one must question the wisdom of treating voluntary intoxication as a formal mitigating factor. Moreover, the offender who drinks before committing a violent anti-social act has willingly and knowingly assumed the risk of a loss of his normal powers of rationality and self-control. Is the sober killer more culpable because his difficulty in conforming to the law stems from an underdeveloped superego instead of voluntary intoxication? The difficulties in using evidence of voluntary intoxication as a covert mitigating factor are evidenced by the California Supreme Court's decision in People v. Conley, 64 Cal. 2d 310, 411 P.2d 911, 49 Cal. Rptr. 815 (1966). See text accompanying notes 103-06 supra. 129. See, e.g., Sheppard v. State, 243 Ala. 498, 10 So.2d 822 (1942); People v. Taylor, 197 Cal. App. 2d 372, 17 Cal. Rptr. 233 (1961); Warren v. State, 243 Ind. 508, 188 N.E.2d 108 (1963).

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homicidal act, and the more difficultythey would experience in resistingthe impulse to which he yielded, the less does his succumbing serve to differentiatehis character from theirs. But the slighterthe provocation,the more basis there is for ascribing the actor's act to an extraordinarysusceptibilityto intense passion, to an unusual deficiency in those other desires which counteractin most men the desires which impel them to homicidal acts.

.130

Thus, the criminallaw's recognitionof provocationas a formal mitigating factor does not weaken its social control function because liability is reduced only in those cases in which objective factors suggest that the offenderis not only less culpable but less dangerousthan the unprovoked killer. In contrast,the diminishedresponsibilitydoctrinerelies on a purely subjectivetheory of liabilitywhich reducesthe actor'spunishmentsolely on grounds of decreasedculpabilityeven though the offender'smental abnormality reveals a character deficiency that might make him dangerous in the future.131 B.

Justifications for Diminished Responsibility

Although the diminishedresponsibilitydefense weakens the criminal law's social controlfunction,this cost must be balancedagainstthe defense's beneficial impact on substantive criminal law principles. The California cases suggest three distinctjustificationsfor recognizingthe defense: (1) it amelioratesdefects in a jurisdiction'sinsanity test criteria; (2) it permits the jury to avoid imposing the death penalty on mentally disabled killers who are criminallyresponsiblefor their acts; and (3) it permitsthe jury to make more accurateindividualizedculpabilityjudgments. We will examine each of these rationalesto determinewhether it supports adoption of the diminishedresponsibilitydefense. 1. Amelioration of the Insanity Defense.

Proponents of the dimin-

ished responsibilitydefense claim it can amelioratedefects in a jurisdiction's insanity test by giving mitigatingeffect to evidence of mental abnormality that does not satisfy the insanitytest's criteria. This rationaleapplies with 130. Michael & Wechsler, A Rationale of the Law of Homicide, 37 COLUM.L. REV. 1261, 1281 (1937). 131. Even if one accepts a more subjective view of provocation which focuses on "whether the actor's loss of self-control can be understood in terms that arouse sympathy enough to call for mitigation in the sentence," MODELPENALCODE? 201.3, Comment (Tent. Draft No. 9, 1959), the provocation defense does not support analogous use of an offender's mental abnormality as a formal mitigating factor. In provocation cases, objective factors concerning the nature and degree of the provocation provide the jury with ascertainable standards by which they can measure the degree of difficulty the particular offender faced in trying to control himself. The jury can rely on its common experience to identify the types of situations that would provoke most people. Although the formal use of mental abnormality to mitigate the offender's punishment requires a similar implicit culpability judgment, the jury has no objective criteria to guide it and cannot rely on its own common experience. See text accompanying notes 154-61 infra. See also Fox v. State, 73 Nev. 241, 244-45, 316 P.2d 924, 926 (1957) (jury should not treat mental abnormality as a mitigating factor absent legislative recognition of such a doctrine).

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greatestforce to M'Naughtonjurisdictionsbecause the diminishedresponsibilitydefense permitsjuriesto considerevidenceof a defendant'simpaired volitional controls which cannot be used to demonstratehis insanity.l32 Most commentatorsagree that using the diminishedresponsibilitydefense in this mannerwill not destroythe insanitydefense or undulyinterferewith its administration.l33However,judicial experiencewith the partial defense indicates that its impact on criminalresponsibilitydoctrines is not always beneficial. One potentialproblemis that it may supplantratherthan supplement the insanitydefense. Seriouslydisturbeddefendantscan avoid an indefinite commitmentto a mental hospital for the criminallyinsane by relying on the diminishedresponsibilitydefense which frequentlyleads to a reduced term in prison.134Although there is insufficientempirical data to prove convincinglythat the diminishedresponsibilitydefense has supplantedthe insanity defense in England, studies have indicated that as the number of diminished responsibilityclaims have increased, the number of insanity pleashave decreased.'35 A second and more serious problemis that the use of the diminished responsibilitydefense to remedyflaws in the insanity test sidetracksmeaningful reform of the insanity test itself. Indirect partial remedies do not cure the basic defects of the M'Naughton test; they merely reduce the court's incentive to confront the difficult question of proper criteria for exculpation. The Californiaexperienceillustrateshow the developmentof a covert diminishedresponsibilitydefense can underminedirect reform of the insanity test. Scholarlycriticismof M'Naughton'slimitationsprovided some of the impetus behind the California Supreme Court's decision to formulate its diminished capacity defense.'36 Although the pressure to 132. See, e.g., Regina v. Byrne, [1960] 2 Q.B. 396, 403 (evidence of mental abnormality that would not be considered relevant on the question of insanity can be considered on the question of diminished responsibility). The M'Naughton test does not actually preclude a complete dynamic inquiry into a defendant's mental state, because many trial judges will admit all psychiatric testimony that relates to the offender's mental state at the time of the crime. See People v. Wolff, 61 Cal. 2d 795, 812-13, 394 P.2d 959, 970, 40 Cal. Rptr. 271, 282 (1964); A. GOLDSTEIN, THE INSANITY DEFENSE,53-58 (1967). Frequently, however, the defendant's experts and lawyers will not introduce evidence relating to defendant's volitional capacity because of their own belief that it is not relevant to a M'Naughton inquiry. See A. GOLDSTEIN,supra at 59-60. The ameliorative function of the diminished responsibility doctrine can apply as well to jurisdictions that employ insanity tests which include volitional criteria. In these jurisdictions, juries will use the doctrine when there is doubt as to whether the degree of impairment of defendant's volitional controls is sufficient to exculpate the offender. See United States v. Brawner, 471 F.2d 969, 998 (D.C. Cir. 1972). 133. See, e.g., Dix, supra note 18, at 323. 134. The trial court has the authority to raise an insanity defense sua sponte, but the applicability of automatic criminal commitment provisions to an insanity acquittal imposed over the defendant's objection is subject to some doubt. See United States v. Wright, 511 F.2d 1311 (D.C. Cir. 1975); Bethea v. United States, 365 A.2d 64, 91 n.59 (D.C. 1976). 135. See MURDER:HOMEOFFICERESEARCH UNIT REPORT10, Table 7 (1961). H. L. A. HART,supra note 15, at 192, 245-48; N. WALKER, supra note 16, at 158-60 (study of murder trials from 1957 through 1963). 136. See People v. Kelly, 10 Cal. 3d 565, 579-80, 516 P.2d 875, 885, 111 Cal. Rptr. 171, 181 (1973) (Mosk, J., concurring).

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abandon M'Naughtonin favor of the Model Penal Code test'37 continued after adoption of a partial defense in Wells and Gorshen,138the court resisted judicial change by emphasizing that the supplemental defense ameliorated the harshness of M'Naughton'slimitations. Indeed, Justice Peters frankly conceded that because evidence of mental condition could now be introducedat the guilt stage on the question of intent, "The bases of my dissatisfactionwith the rigid application of the M'Naughton rule no longerexist."139 Since the diminishedresponsibilitydefense may supplant the insanity defense or sidetrackmeaningful reform of its exculpatory criteria,140the defense does not have a sufficientlybeneficial impact on criminal responsibilitydoctrinesto justifyits adoption.141 2. DiminishedResponsibilityand CapitalPunishment. The spectre of executinga mentallydisabledbut sane offenderlike RaymondGoedeckeled some courts with mandatorydeath penalty statutesto adopt the diminished responsibilitydoctrine.l42 The defense alleviatesthe absenceof any express sentencingdiscretionby giving the jury de facto sentencingpower which it can use to reduce the defendant'sformal degree of criminalliability to a non-capitaloffense. This justificationfor the defense loses most of its force when it is applied to the present administrationof capital punishmentin the United States. The legislative movement away from mandatory death penalty statutes,l43althoughbrieflyinterruptedby the Court'sdecisionin Furmanv. Georgia,l44was constitutionalizedwhen the SupremeCourtruledin Woodson v. North Carolina 145 and Roberts v. Louisiana 146 that most 14 mandatory

capital punishmentschemesviolated the eighth and fourteenthamendments. 137. See note 22 supra. 138. See notes 52-77 and accompanying text supra. 139. People v. Nash, 52 Cal. 2d 36, 55, 338 P.2d 416, 428 (1959). 140. Although the Royal Commission on Capital Punishment recommended that the M'Naughton test be abolished, Parliament blunted the reform movement by adopting a diminished responsibility defense in the English Homicide Act of 1957, 5 & 6 Eliz. 2, c. 11. 141. In jurisdictions that employ the Model Penal Code test for criminal responsibility, see note 22 supra, the jury will often make a quantitative distinction between diminished responsibility and insanity based on the degree of the defendant's impairment. Where both defenses are raised in a non-bifurcated proceeding, difficult procedural questions may arise in jurisdictions that require the prosecution to prove criminal responsibility beyond a reasonable doubt. There is always the danger that the jury will use the diminished responsibility defense as a compromise verdict in cases where the prosecution has failed to meet its burden of proof on insanity. Although compromise verdicts could be avoided if the insanity determination were made in a separate hearing that preceded a hearing on diminished responsibility, such a cumbersome procedure would seriously burden already over-taxed judicial resources. 142. See CAPITALPUNISHMENTREPORT, supra note 14, at 144; Sparks, "Diminished Responsibility" in Theory and Practice, 27 MOD. L. REV.9, 20 (1964). 143. See Woodson v. North Carolina, 428 U.S. 280, 289-91 n.25 (1976). 144. 408 U.S. 238 (1972) (imposition of the death penalty under discretionary sentencing procedures that create a substantial risk that the penalty would be inflicted in an arbitrary and capricious manner prohibited by eighth amendment). After Furman, some state legislatures enacted statutes that "cured" standardless sentencing discretion by making the death penalty automatic for a narrowly defined category of crimes. 145. 428 U.S. 280 (1976). 146. 428 U.S. 325 (1976). 147. See Woodson v. North Carolina, 428 U.S. 280, 292 n.25 (1976) (Court did not

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In Woodson, the Court ruled that the automaticimposition of death is inconsistent with evolving contemporarycommunity standards of decency. A three-judgepluralityobservedthat the eighth amendmentrequires the sentencing body to consider both mitigating and aggravatingfactors concerningthe special facets of defendant'scharacterand the nature of the offense as an indispensablepart of the process of imposing the ultimate punishmentof death.148 Justice Stewartsuggestedthat bifurcatedtrials149 and appellatereviewof the factorsrelied upon by the sentencingbody would provide a reasonableproceduralmechanismto insure a fair, individualized 150 and Jurek v. Texas,l51 the decision-making process. In Profett v. Florida

SupremeCourt approvedthe constitutionalityof statutesthat permittedthe sentencing authority to consider the offender's mental abnormalityas a mitigatingfactor at the penalty stage of the proceedings. These decisions suggestthat the offender'smental abnormalityat the time of the crime must be considered at the penalty hearing, thereby obviating the need for a diminishedresponsibilitydoctrinein capitalcases.152 C.

Diminished Responsibility and Culpability

The primaryjustificationfor the diminishedresponsibilitydefense is that it enables the jury to make more precise, individualizedculpability judgments. Although the legislature designed its state of mind requiredecide constitutionality of mandatory death sentence statutes applicable to prisoners serving life sentences). 148. Id. at 303-04. 149. In Gregg v. Georgia, 428 U.S. 153 (1976), Justice Stewart, writing for the Court, observed: Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. . . . When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman. Id. at 190-92 (footnotes omitted). See MODELPENALCODE? 201.6, Comment 5 at 74-75 (Tent. Draft No. 9, 1959). 150. 428 U.S. 242 (1976). 151. 428 U.S. 262 (1976). 152. See also Roberts v. Louisiana, 431 U.S. 633 (1977) (per curiam opinion reaffirming the Court's holding in Woodson); Washington v. Louisiana, 428 U.S. 906 (1976). After Roberts, the only mandatory death penalty statute that may pass constitutional muster is a statute applying to prisoners who kill while serving a life sentence. See 431 U.S. at 637 n.5. Proponents of the diminished responsibility defense could argue that the defense may still serve a useful purpose if the Supreme Court upholds the constitutionality of such narrowly-drawn statutes. But legislative or judicial adoption of the diminished responsibility defense in such cases would give the jury de facto sentencing power subject to the same criticisms made by the Court in Furman. See note 144 supra. First, the defense's exclusive focus on one mitigating factor compels the jury to exercise its de facto sentencing power in an arbitrary manner. See Roberts v. Louisiana, 428 U.S. 325, 330 (1976). In effect, the defense would invite the jury to use its undirected and unreviewable moral intuition to circumvent the death penalty even after finding all the elements of the capital offense. Secondly, if the sentencing body must consider both mitigating and aggravating factors when it exercises its de jure sentencing power to ensure the just imposition of society's ultimate sanction, see Jurek v. Texas, 428 U.S. 262, 267-68 (1976), it makes little constitutional sense to permit the jury to consider only one mitigating factor and no aggravating factors when it exercises de facto sentencing power through the use of the diminished responsibility defense.

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ments in part to reflect"the differencein the quantumof personalturpitude of the offenders,"153 these mens rea elements do not provide adequate gradingcriteriabecause they exclude most of what psychiatryhas to offer the criminallaw in explanationof the defendant'sactions. In contrast,the diminishedresponsibilitydoctrineadmitsall experttestimonyconcerningthe defendant'smental condition,therebygiving the jury a far broaderrange of informationon whichto base its culpabilityjudgments. Despite its initial plausibility,this justificationis flawed because the defense triggers an individualizedinquiry which does not lend itself to a consistent and principledapplication. As we have seen, juries and appellate courts rely on such factors as the offender'shistory of mental disorder, his lack of personal turpitude,and the bizarre nature of his criminal act, but no consistentpatternof evidentiaryfactors can be found to distinguish betweensuccessfuland unsuccessfulclaims of diminishedresponsibility.'54 It could be argued that inconsistent application of amorphous subjective criteria is the inevitable by-product of any subjective theory of criminalliability which demandsinquiryinto why each criminal defendant acted as he did. If the purpose of the diminishedresponsibilitydefense is to permit the jury to examine the unique circumstancesof each case, inconsistencymay be the price the criminallaw has to pay as long as the subjectiveinquirythe defense promotesis deemed worthwhile.155 However, the benefits to the criminal law of such an individualized inquiry are speculativeat best. As we have already seen, the diminished responsibilitydoctrine fosters an irrational,individualizeddecision-making process by preventingthe jury from consideringwhether the defendant's mental abnormalitymakes him more dangerous as well as less culpable than another offender who commits the same crime. If the criminallaw individualizespartialexcusingconditions,it must recognizethat an offender's mental abnormalitymay be an aggravating,as well as a mitigating,factor if it makeshim dangerousto society. 153. People v. Holt, 25 Cal. 2d 59, 89, 153 P.2d 21, 37 (1944). See Fingarette, Disabilities of Mind and Criminal Responsiblity-A Unitary Doctrine, 76 COLUM.L. REV. 236 (1976); Comment, Keeping Wolff From the Door: California's Diminished Capacity Concept, 69 CALIF.L. REV. 1641 (1972). 154. See notes 93-97 and accompanying text supra. A similar criticism can be made of the English Homicide Act of 1957, 5 & 6 Eliz. 2, c. 11, which explicitly adopted a diminished responsibility defense to reduce murder to manslaughter in cases in which a defendant's mental abnormality "substantially impaired his mental responsibility." In Regina v. Byrne, [1960] 2 Q.B. 396, 403, the court defined "abnormality of the mind" to include any "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal." This open-ended view of mental abnormality encompassed the accused's inability "to exercise will-power to control his physical acts." Given the undisputed expert testimony that Byrne was a sexual psychopath who killed and mutilated his victim while under the influence of perverted sexual desires which he found difficult to control, id., the Court of Criminal Appeal held that the trial court erred in precluding the jury's consideration of a diminished responsibility defense. Because of the bizarre nature of the crime and the expert testimony establishing Byre's difficulty in controlling himself, the court reduced his conviction to manslaughter. 155. See Fletcher, The Individualization of Excusing Conditions, 47 S. CAL.L. REV. 1269, 1308-09 (1974).

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More importantly, the defense's objective of distinguishing between the fully culpable sane offender who did not resist his anti-social impulse but could have done so easily, and the less culpable sane offender who would have had extreme difficulty resisting such an impulse, requires the jury to make an exceedingly subtle, if not impossible, distinction 156 in most homicide cases. Even if we assume the jury is capable of making such discriminations,157it can not do so on the basis of testimony by mental health experts. The art of psychiatry has not yet advanced to the point where it can successfully distinguish the "normal" fully culpable killer from the abnormal but sane killer who deserves formal mitigation. Psychiatry's elastic definitions of mental abnormality 158 easily encompass anyone who kills another human being without justification or excuse 159 because such an act demonstrates a serious deviation from cultural and social norms.160 From such abnormality, the expert can readily infer that the accused had extreme difficulty in obeying the law and is therefore entitled to formal mitigation. Ironically, the diminished responsibility defense asks the jury to make implicit comparative culpability judgments by considering evidence from experts who cannot provide the factual bases for making such judgments.'6 A final difficulty with the diminished responsibility defense is that the scope of its subjective inquiry into the degree of voluntary choice exercised by each sane defendant at the time of the crime cannot logically be confined within realistic limits. Since most social scientists and psychiatrists agree 156. Proponents of the diminished responsibility defense have suggested that the same problems of inconsistency and reliance on the inexact "science" of psychiatry beset the insanity defense, yet that defense is accepted in most American jurisdictions. The analogy, however, is misleading because the insanity defense, unlike the diminished responsibility defense, asks both the expert and the fact-finder to make a far easier distinction between a large group of offenders who are punishable for their acts despite their mental deficiencies and a small class of offenders who are so mentally disabled that they cannot be held accountable because they lack the minimal capacity to act voluntarily. See text accompanying notes 165-69 infra. 157. One eminent jurist has suggested that the jury must use common sense in making such acute culpability distinctions. Regina v. Byrne, [1960] 2 Q.B. 396, 403 (Lord Parker, C.J.). But one must question whether common sense aids either the expert or the factfinder in counting the number of angels on the head of a pin. Cf. text accompanying notes 101-06 supra (jury required to make subtle distinctions between mens rea elements). 158. Psychopathy presents the most obvious illustration of an amorphous psychiatric disorder that is sufficiently elastic to cover a broad range of criminal behavior. See H. THE MASKOF SANITY355-56 (1970); S. HALLECK, PSYCHIATRY ANDTHEDILEMMAS CLECKLEY, OF CRIME99-114 (1971); N. KITTRIE,THE RIGHTTO BE DIFFERENT169-209 (1971); F. REDLICH & D. FREEDMAN, THE THEORY ANDPRACTICE OF PSYCHIATRY 1-2 (1966). 159. As Dr. Diamond has noted, "[A] major criminal action [such as murder] does, in my opinion, carry a heavy medical, even though not legal, presumption of mental illness." Diamond, The Simulation of Sanity, 2 J. Soc. THERAPY (1956). 160. See L. SROLE,T. LANGER, S. MICHAEL, M. OPLER,T. RENNIE,MENTALHEALTHIN THE METROPOLIS: THE MIDTOWNMANHATTAN STUDY138 (1962). These authors estimated that only 18.5% of the adults in mid-Manhattan could be considered mentally healthy (free of significant symptoms of mental pathology) and almost 25% were described as exhibiting "mental morbidity" as their symptoms had "halting, laming, or crippling effects on the performance of one's daily life." Certainly these authors would consider someone's inability to stop himself from committing a homicide a serious disabling disorder. 161. Of course, experts can attempt to distinguish between fully culpable killers and those with reduced culpability by making a quantitative judgment that some mentally abnormal killers are more impaired and therefore less culpable than others. But even such quantitative judgments cannot be made with any degree of confidence. If we view human

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that socio-economic factors may adversely affect a defendant's degree of voluntary choice just as much as the effects of mental abnormality short of severe psychosis, equitable application of this defense would seem to compel introduction of testimony concerning adverse social, economic, or cultural conditions that impair an individual's capacity to conform to the law.162 But, such an expansion of the diminished responsibility doctrine to socially disadvantaged offenders would undermine the criminal law's assumption that individuals are fully punishable for their criminal acts if they entertained the requisite state of mind. In practical terms, a large percentage of homicide defendants would qualify for formal mitigation, a result which would certainly interfere with the legislature's grading of offenses and punishments. Thus, the diminished responsibility defense is plagued by a number of practical and theoretical objections which largely destroy its utility. The criminal law assumes that sane offenders have the minimal capacity to choose whether to violate or abide by the law's dictates and are therefore "blameworthy" and fully punishable when they make the wrong choice. This assumption cannot be successfully integrated with a formal mitigation doctrine which authorizes a purely subjective inquiry into the degree of voluntary choice exercised by each sane offender.'63 The diminished responsibility doctrine upsets the criminal law's uneasy compromise between subjective and objective theories of liability because its use of "scientific" exbehavior as being distributed upon a spectrum ranging from "normal functioning" to "gross disorganization," State v. Sikora, 44 N.J. 453, 461, 210 A.2d 193, 197 (1965), most homicide defendants relying on a diminished responsibility defense will be able to introduce expert testimony placing them nearer to the "severe impairment" end of the spectrum. Since psychiatry cannot yet say "at what point on the line a particular person is functioning at a given time," id., such testimony will not tell us whether one mentally abnormal killer is more culpable than another. 162. See S. HALLECK,supra note 158, at 211. Jurisdictions adopting the diminished responsibility doctrine under the guise of a mens rea inquiry have admitted a range of non-medical testimony, ostensibly because the issue is whether the defendant entertained the requisite mental state. Absence of the mental element may be shown by voluntary intoxication or by some strong emotion such as panic or fear as well as by evidence of mental abnormality. See People v. Conley, 64 Cal. 2d 310, 411 P.2d 911, 49 Cal. Rptr. 815 (1966); Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974). In United States v. Brawner, 471 F.2d 969, 998 (D.C. Cir. 1972), the court indicated that diminished capacity may be shown by evidence that does not satisfy the McDonald definition (see note 22 supra) of mental disease or defect. See also Regina v. Byrne, [1960] 2 Q.B. 396, 403. However, the danger involved in allowing a formal mitigation defense to be based on factors such as cultural deprivation has not gone unnoticed. See People v. Morse, 70 Cal. 2d 711, 732-35, 452 P.2d 607, 619-21, 76 Cal. Rptr. 391, 403-05 (1969), cert. denied, 397 U.S. 944 (1970) (expert testimony which described defendant's sociopathic personality and his incapacity to respond to society's morality because of cultural and environmental pressures did not raise a diminished capacity claim). 163. See MODELPENALCODE? 2.09, Comment 2 at 6 (Tent. Draft No. 10, 1960). In discussing why an objective standard (a person of reasonable firmness) was used in its duress test, the commentary notes: The crucial reason [for an objective standard] is the same as that which elsewhere leads to an unwillingness to vary legal norms with the individual's capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that is feasible to do with lesser disabilities is to accord them proper weight in sentencing.

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planationsof deviant behavior to reduce the defendant'sformal degree of criminalliability cannot be fairly limited "withinverifiablebounds that do not tear the fabricof the criminallaw as an instrumentof social control."164 D. DiminishedResponsibilityand Insanity Supportersof the diminishedresponsibilitydefense have suggestedthat the insanity defense is subject to the same theoreticalobjections. Yet this defense is universallyrecognized in American jurisprudence.165Like the diminishedresponsibilitydefense, the insanitydefense embracesa subjective theory of criminal liability and uses a scientific explanation of criminal behaviorto negate the actor's criminalresponsibility. If the criminallaw can tolerate the problemsposed by inconsistentapplicationof amorphous subjective criteria and the use of a deterministicexplanation of criminal behaviorin the administrationof the insanitydefense, why should the same problemsjustify rejectionof the diminishedresponsibilitydoctrine? The analogyto the insanitydefenseis misleadingbecausethe diminished responsibilitydoctrine asks the expert witness and the jury to make a far more subtle distinction. The insanity defense asks both to distinguishbetween a large group of offenderswho are punishablefor their acts despite theirmental deficiencies,and a small class of offenderswho are so mentally disabledthat they cannotbe held accountablebecause they lack the minimal capacityto act voluntarily. The diminishedresponsibilitydoctrineattempts to divide the first large group of responsiblesane offendersinto two subgroups: a group of "normal"fully culpablecriminaloffenders,and a group of mentally abnormalbut sane offenderswith reduced culpability. As we have seen, mental health professionalscannot distinguishbetween the sane killer who did not resist his anti-social impulses but could have done so easily, and the less culpable killer who would have had extreme difficulty in resistingthe same impulse.'66 The old saw that it is impossibleto distinguish between the "unresisted"and "irresistable"impulse applies with greatestforce when the test is being used to distinguishamong sane killers who, by definition,possess the minimalcapacityto act voluntarily. More importantly,the insanity defense has not underminedthe criminal law's social control function, because it has been successfullytied to a medical model which limits the defense's scope and effect. Indeed, in rejectingthe argumentthat the insanitydefense should be releasedfrom its medical model's moorings,the court in Brawnernoted how this restriction was crucialto the preservationof the criminallaw's norm of free will: Our jurisprudence . . . while not oblivious to deterministic com-

ponents,ultimatelyrests on a premiseof freedomof will. This is not to be viewed as an exercisein philosophicdiscourse,but as a 164. United States v. Moore, 486 F.2d 1139, 1180 (D.C. Cir. 1973). 165. See Lewin, supra note 11, at 1097. 166. See notes 158-61 and accompanying text supra.

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governmentalfusion of ethics and necessity, which takes into account that a system of rewardsand punishmentsis itself part of the environmentthat influencesand shapes human conduct. Our recognitionof an insanitydefensefor those who lack the essential, thresholdfree will possessedby those in the normalrangeis not to be twisted, directly or indirectly,into a device for exculpationof those withoutan abnormalconditionof the mind.167 Of course,it can be arguedthat tying the insanitydefense to a medical model of mental illness is itself an artificiallimitation.168 But it is not wholly irrationalto limit that defense to those few offenderswho lack minimal capacity for voluntary action because of some severe mental disorder as long as the criminallaw assumesthat there is a broad spectrumof "normality"which includes offenderswhose understandingand range of options have been diminisheddue to various factors. Furthermore,it is at least arguablethat only seriousmentaldisordersmay destroythe minimalcapacity for voluntarychoice requiredfor criminalresponsibility.169 Once we pass beyond this minimalcapacitylevel, it is much harderto justify a defense that distinguishesbetween mental abnormalityand socioeconomic factors for purposes of formal mitigation. Yet, without such a limit, the criminal law's assumptionof full punishabilitywould be undermined since most homicidedefendantswould be able to offer some scientific explanationfor their anti-socialbehavior. While it is undoubtedlytrue that mentalillness, poverty,and racismcan all seriouslyrestricta person'sunderstanding and range of choices, with the exception of severe mental illness, these conditionsdo not completelydestroy a person'scapacityfor voluntary action. Most poor people do not steal to feed their emptystomachs. Very few of the mentally ill commit crimes to satisfy their unconscious desires. Regardlessof the scientificvalidityof deterministicexplanationsof criminal behavior, there is no compelling reason why the criminal law should use such explanationsformallyto mitigatethe punishmentof an individualwho possesses the minimal capacity for voluntary choice requiredfor criminal responsibility. CONCLUSION

Despite the serious theoretical and practical problems engenderedby the diminishedcapacity and diminishedresponsibilitydefenses, most academic commentatorshave concluded that the criminal law should permit 167. United States v. Brawner, 471 F.2d 969, 995 (D.C. Cir 1972). 168. See id. at 1028-30 (Bazelon, C.J., concurring and dissenting). 169. This justification for a medical model of insanity is strongest in jurisdictions that employ the M'Naughton test. If the defense exculpates those few offenders whose realitytesting functions have been severely impaired, limitation to a medical model can be justified on the grounds that cultural deprivation, racism and poverty do not have the same qualitative impact on an individual's capacity for voluntary action. However, the limitation to a medical model of insanity becomes more questionable when the insanity test criteria are satisfied by less serious impairment of cognitive functions or volitional controls.

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the jury to considera defendant'smental abnormalityshort of insanitywhen it assesses his degree of criminal liability.170 Writing in 1971, Professor Dix concludedthat the jury shouldbe given the power to treat the offender's mental abnormalityshort of insanity as a mitigatingfactor which reduces the maximumpenaltyto whichthe defendantcan be sentenced. He argued: Whateverthe presentlimitationon accuratelydeterminingthe psychological dynamicsof particularoffenders,the situationis likely to improve with practice .... Mental health professionals, engaged

in the treatmentprocess, seldomhave the opportunityto speculate concerningthe mental processes of an offenderas they relate to the criminallaw. If the law expects such professionalsto be of more help than they have been in the past, it must provide the

opportunity for them to practice their analysis ....

From continued

experimentationin this area, it is reasonableto expect the development of a more sophisticatedability to analyze particularcases as well as the developmentof a body of knowledgeon which to builda morerealisticsubstantivecriminallaw.'17 Far from supportingProfessor Dix's optimistic expectations,the past two decadesof judicialexperimentationwith criminalresponsibilitydoctrines tend to refute them. In a commentary on United States v. Brawner,l72 one

of the original architectsof the diminishedresponsibilitydoctrineconceded that the present confusion of psychiatryin regardto some of its most basic tenets has resultedfrom the greatly acceleratedincrease of scientificknowledgeabout mental illness. In medicine, as in all science, certitudeoften reflectsdogma and lack of valid information. The psychiatryof the 1970's is well advancedover that of the 1950's, but it is less usable by the law. I predictthe evidentiary value of psychiatrictestimonywill become less, ratherthan more, crediblein the coming decadesas furtherincreasein knowledge addsto the confusion.173 Unfortunately,many courts have not heeded such warningsor the sad lessons of theirown experience. This Article has suggestedseveral reasons why the courts have been willingto adopt a doctrinethat in practiceempowersthe jury to reduce the defendant'spunishmentbecause of his lessened culpability. As our society begins to accept responsibilityfor some of the conditionsthat contributeto rising crime rates, it becomes harder for the criminallaw to predicateits heavy penal sanctionson the twin assumptionsthat all offenders,except the severely disturbed,are equally culpable for their actions and that severe punishmentwill be an effective deterrentagainst unlawful behavior in the future. The law's growinganxietyabout the efficacyand moralityof impos170. 171. 172. 173.

See authorities cited in note 18 supra. Dix, supra note 18, at 333. 471 F.2d 969 (D.C. Cir. 1972). Diamond, supra note 102, at 115.

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ing the criminalsanction on mentally disableddefendants174 has led courts to rely on mental health professionalsto harmonizethe criminallaw's assumptionsabout humanbehaviorwith modernpsychiatricinsights. The diminishedcapacity and diminishedresponsibilitydoctrines present strikingexamplesof this process. Instead of confrontingand resolving the difficultmoral and legal policy judgmentsinvolvedin questionsconcerning the death penalty,the proper criteriafor distinguishingbetween degrees of murder,and the scope of the insanitytest,175courts have relied on compromise partial defenses. Because the defenses contain the seeds of their own destruction,the compromiseis an unstable one. This analysis leads to the conclusionthatboth defensesbe abolished. This Article proposes adoptingonly the limited, "strict"variant of the mens rea model,l76which admits evidence only of some consciously entertained thought or emotion which directly negates or confirmsthe requisite state of mind. If trial judgesunderstandhow rare these cases are and reject all psychiatrictestimonythat evaluatesa defendant'sgeneral capacity 77 to entertainthe requisitestate of mind, most experttestimonywill be excluded fromtrial. With the exception of cases such as People v. Wells,178 evidence of

defendant'smental abnormalitywhich does not tend to establishhis insanity 179 should be consideredonly at sentencing. This is entirely consistent with the prevailingpracticeof permittingthe trial judge to make individualized sentencingdeterminationsby consideringboth mitigatingand aggravating factors before fixing sentence. Because the sentencing authoritymay considerwhethera defendant'smental abnormalitymakes him more dangerous as well as less culpable,informalmitigationwill not jeopardizethe social control function of the criminallaw. Moreover,a judgmentabout an individual's lessened culpability requires an implicit comparative culpability judgmentthat the particularoffenderis less culpablethan his more normal counterpart. The court is more qualifiedthan a jury to make such a com174. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV.L. REV. 441, 442 (1963). 175. See Waelder, Psychiatry and the Problem of Criminal Responsibility, 101 U. PA. L. REV. 378, 385-86 (1952). 176. See text accompanying notes 19-20, 61-66 supra. 177. Cf. United States v. Peterson, 509 F.2d 408, 415 n.9 (D.C. Cir. 1974) (rejecting requested instruction that evidence of "substantially reduced mental capacity" negated premeditation). Reformulating the language of jury instructions without addressing the more serious problem of what expert testimony should be admitted will not prevent the strict mens rea defense from evolving into a covert diminished responsibility defense. 178. 33 Cal. 2d 350, 202 P.2d 53, cert. denied, 338 U.S. 836 (1949). 179. Appellate courts can promote this process by requiring trial judges to consider offers of proof as to the scientific reliability and relevance of the expert testimony before admitting it. See United States v. Brawner, 471 F.2d 969, 1002 (D.C. Cir. 1972). See also Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976). Unfortunately, the few appellate courts which have expressed concern about the relevance of expert testimony of the inquiry authorized by the mens rea element. Compare State v. Sikora, 44 N.J. 453, 210 A.2d 193 (1965) (expert testimony must dispute proof of the actor's conscious intent), with State v. Vigliano, 43 N.J. 44, 202 A.2d 657 (1964) (admission of mitigating testimony authorized by broad view of mens rea).

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parativeculpabilityjudgmentbecause of its "familiaritywith the actualrange of the qualities of men who commit crimes and of the characteristicsof their behavior,"and because of its "insightinto the individualityand motivation of particularoffenders."180 Of course, the sentencing judge's past experiencewith a broad range of offendersdoes not guaranteethat he will consistentlyemploy rationalsentencingcriteria. But proceduralsafeguards, includingfull disclosure of pre-sentencingreports to defense counsel and appellatereview of sentencingdecisions, can be used to promote rational sentencingpolicies.l81 A major advantageof treatingmental abnormalityshort of insanity as a mitigatingfactor at sentencingis that mental health professionalswill be able to offer a more complete presentationof the offender'smental status. Instead of focusing exclusivelyon defendant'smental state at the time of the crime, these professionalswill be able to place that mental abnormality into the context of his entire life history,includingthe propectsfor successful treatment.182 Obviously,this proposal does not provide a panacea for all the problems posed by the mentally disorderedbut "sane" defendant. Psychiatric diagnosticcriteriawill not be any more reliable when used in the dispositional stage of the proceedings. Courts will often have as much difficulty as jurors in decipheringpsychiatricjargon. It is unlikely that sentencing judgeswill rest their decisionsexclusivelyon psychiatricrecommendations.'83 Despite these drawbacks,however, this proposal will foster a more rational sentencingdecision because all the relevant circumstancesconcerningthe defendantand the offensewill be consideredat one time by the same experienced decision-maker. Moreover, the jury's assessmentof a defendant's criminalresponsibilitywill not be prejudicedby the availabilityof a compromisefindingof diminishedresponsibility. Courtswill be freed from the Herculeantasks of identifyingwhat evidenceof diminishedcapacitynegates 180. Michael & Wechsler, supra note 130, at 1310. See Gregg v. Georgia, 428 U.S. 153 ?1.1 ALTERNATIVESAND PROCEDURES TO SENTENCING (1976); ABA STANDARDSRELATING (Approved Draft, 1968). 181. See, e.g., State v. Kunz, 55 N.J. 128, 144, 259 A.2d 895, 903 (1969) (requiring disclosure of pre-sentence report to defense counsel); CAL. PENAL CODE? 1203 (West 1970); ALTERNATIVES AND PROCEDURES ?? 4.3-4.6 ABA STANDARDS RELATING TO SENTENCING (Approved Draft, 1968). 182. The federal government and many states have provided funding for diagnostic facilities to aid the court in developing this information. See 18 U.S.C. ?4208(b) (1970) (authorizing diagnostic commitment to a psychiatric facility maintained by the Bureau of Prisons); CAL. PENAL CODE ? 1203.03 (West Supp. 1977); N.J. REV. STAT. ?? 30:4A-117 (Cum. Supp. 1947); MODEL PENAL CODE ?7.08(1) (Proposed Official Draft, 1962); MODEL SENTENCINGACT ?6 (1963). This information should be included in the pre-sentence report prepared for the sentencing court, see ABA STANDARDSRELATING TO PROBATION ?? 2.1,

(Approved Draft, 1970), and its contents should be disclosed to defense 2.3(ii)(A),(F) counsel so that the accuracy of the information can be checked prior to the sentencing determination. See ABA STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES ?4.4 (Approved Draft, 1968). 41 (1969); Bohmer, Bad or Mad: The Psychiatrist in 183. See R. DAWSON,SENTENCING in the Sentencing Process, 4 J. PSYCH.& L. 23 (1976) (psychiatrists' recommendations for sentencing accepted by Philadelphia trial judges far less frequently than probation report recommendations).

1977]

PARTIAL CRIMINAL DEFENSES

865

one mental element but not another and of explaining why a finding of diminishedresponsibilitycannot be based on a showing of socio-economic factorswhich reducethe actor'srangeof choices and understanding. Most importantly,abolishingthese defenses will help destroy the illusion that the criminallaw can avoid makingdifficultmoral and social policy judgmentsby delegatingthem to experts. Our legal institutionsbear the ultimateresponsibilityof decidinghow and when psychiatricexpertiseshould be used in the criminalprocess. Courts adoptingthe diminishedcapacity and diminished responsibilitydefenses have abdicated their responsibility by relying on mental health professionalsand their expertise to humanize the criminalprocess. When the criminallaw learns that "[s]cientificknowledge does not contain within itself directionsfor its 'proper'humanitarian use,"184 it will be readyto begin the process of makingbetter use of modem psychologicalknowledge.

AND PSYCHIATRY 184. T. SZASZ,LAW, LIBRARY, 92 (1963).