Search

I Introduction Behavioral science is on the march. Psychiatrists and psychologists are identifying an ever-proliferating and often bewildering array of new syndromes or disorders. Some have received the clinical and scientific imprimatur of actual inclusion in the American Psychiatric Association's official diagnostic manual, referred to as DSM-IV.(2) Examples of the diagnostically respectable disorders include: "Antisocial Personality Disorder,"(3) "Posttraumatic Stress Disorder,"(4) "Intermittent Explosive Disorder,"(5) "Kleptomania," and "Pathological Gambling."(6) DSM-IV characterizes other categories as "in need of further study" because their existence as discrete psychopathological entities is not yet sufficiently validated to warrant inclusion in the manual.(7) Examples include, "Postconcussional Disorder,"(8) "Caffeine Withdrawal,"(9) and "Premenstrual Dysphoric Disorder"(10) (which was formerly termed Premenstrual Syndrome or PMS and, later, Late Luteal Phase Dysphoric Disorder). Finally, and least respectably, some alleged syndromes have not received general provisional recognition as valid, but are advocated with varying degrees of success by clinicians and researchers who have supposedly identified them. Examples from the last group, which have been chosen from the mental health and legal literatures and from legal cases, where they often arise, include," Battered Woman Syndrome,"(11) "Vietnam Syndrome,"(12) "Child Sexual Abuse Syndrome,"(13) "Holocaust Survivor Syndrome,"(14) "Urban Survival Syndrome,"(15) "Rotten Social Background,"(16) and "Adopted Child Syndrome."(17) Diagnostic identification, research, and advocacy are unproblematic if they are confined within the mental health professionals' domain. Although the concepts of mental and behavioral abnormality are hotly contested, human suffering is potentially involved, and we will all probably benefit from activities aimed at acquiring valid knowledge of how our mental and behavioral nature is carved at the joints. But swept away by the torrent of science and, alas, pseudo-science concerning alleged new syndromes, many people now suffer from yet another new syndrome that I have identified, or at least given a name: the "New Syndrome Excuse Syndrome." The primary diagnostic criterion for this syndrome is an almost irresistible impulse to use the alleged discovery of syndromes of mental abnormality as good reason to alter the criminal law. Those suffering from the new syndrome include many members of the criminal defense bar, properly seeking any possible purchase to exonerate defendants, legal commentators, some mental health professionals, and some judges and legislatures. Courts and, less often, legislatures are increasingly inundated with claims that syndromes old and new, validated and unvalidated, should be the basis for two types of legal change. The first is the creation of new affirmative defenses. Examples are claims for the creation of a discrete "battered victim" or "urban survivor syndrome" defense. The second change proposal is the expansion of old defenses: for example, loosening objective standards for justifications such as self-defense. All too often, I fear, the new syndromes are not sufficiently validated and are the product of unacceptably "soft" science or clinical crockery. Nevertheless, this paper will not discuss the pseudo-science problem. Instead, it will accept the validity of some of the new syndromes or some yet to be discovered syndromes because the legal issues are theoretically and practically important only if claimed new syndromes do have reasonable validity. Consequently, this article win assume away the scientific and clinical problems and will focus on the conceptual difficulties and policy dilemmas the New Syndrome Excuse Syndrome presents. This article attempts to clear the theoretical terrain to determine how the criminal law should understand and respond to claims that new syndrome evidence warrants the expansion of existing defenses or the creation of new ones. …

Publisher Summary This chapter addresses the basic definitional and conceptual issues concerning addiction that must be clarified to make progress. The primary criteria of addiction commonly employed at present are behavioral, namely, persistent drug seeking and using, especially compulsively, in the face of negative consequences. There are many findings about the biology and psychology of addicts that differentiate this group from non-addicts, but none of these findings is independently diagnostic. Using the definition just provided, an addictive drug would be one that has a substantial potential to cause users to persistently seek and use the substance, especially compulsively and with negative consequences. Citizens appear to have a prima facie right to engage in recreational alteration of mood and cognition by drug consumption and the state surely has the burden of justifying criminal prohibition of such recreation by powerful arguments. Criminalization of drugs inhibits use generally and consequent addiction by making production, sale, possession, and use more expensive and dangerous and by sending the clearest possible message that drug use is wrong.

This chapter has two simple underlying theses. The first is that it is impossible to understand the relation of any variable to criminal responsibility without having in place an account of criminal responsibility. The second is that discovery of genetic, neuroscientific, or any other physical or psychosocial cause of action raises no new issues concerning responsibility, and discovery of such causes does not per se create an excusing or mitigating condition for criminal conduct or any other type of behavior. The chapter begins in Part II with a brief description of the phenomenology of addiction, describing generally what is known about the behavioral aspects of addiction in addition to the basic criteria of craving, seeking, and using. Part III addresses the contrast between the legal and scientific images of behavior, using the disease concept of addiction, now fueled by discoveries of genetic predisposition and altered neural systems of reward, as prime examples of the contrast. Part IV offers a general model of criminal responsibility to guide the analysis of responsibility for addiction-related criminal behavior, offering the best positive account of the present system. Part V deals with persistent confusions about responsibility. Part VI describes those aspects of addiction, if any, for which persons might be held morally or legally responsible, concluding that only actions related to addiction are appropriate objects for ascribing criminal responsibility. Part VII addresses the causal role genetics and neural systems of reward play in explaining addiction. Finally, Part VIII considers individual and social responsibility for the addiction-related actions.

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions.

The proposal to justify homicide by psychological self-defense rests on an insecure scientific foundation and would be legally mischievous. The core concepts are unacceptably vague and lack rigorous empirical support. The proposed defense is better characterized as an excuse than as a justification because rational victims of purely psychological abuse do have socially preferrable alternatives to homicide, and the proposal is inconsistent with modern criminal law that limits justifications for homicide. The defense would create substantial administrative problems and would facilitate adoption or expansion of related undesirable doctrines. The best response to abhorrent physical and psychological abuse is not unnecessary further violence, but the creation of adequate deterrents and alternative solutions for victims.

There is uneasy tension in the criminal law between the doctrines of mens rea and the defense of legal insanity. Last term, the Supreme Court addressed both these issues, but failed to clarify the relation between them.Using a wide range of interdisciplinary materials, this article discusses the broad doctrinal, theoretical, and normative issues concerning responsibility that arise in this context. We clarify the meaning of mental disorder, mens rea and legal insanity, the justification for and the relation between the latter two, and the relation among all three. Next we consider the reasoning in Clark, and for the most part find it wanting. Then we turn to the constitutionality and wisdom of abolishing or limiting mens rea and legal insanity. We conclude that although it is probably constitutional to abolish legal insanity, robust doctrines of mens rea and the insanity defense itself must be maintained to insure that the criminal law imposes fair blame and punishment. We next canvas the alternatives to legal insanity, including the most contemporary, reasoned academic proposal, and find all insufficient to achieve justice. Finally, we respond to the increasing challenges to responsibility generated by new scientific findings about human behavior, especially by the new neuroscience, and suggest that these findings do not undermine core conceptions of personhood and responsibility.

Despite a large and growing interest in applying brain science to the ends of justice, the implications of neuroscience for the law are still unclear. But Stephen Morse argues that, unless discoveries about the brain radically change our conception of ourselves, they are unlikely to fundamentally alter legal doctrine. For most challenges the findings might raise to justice, equality, and liberty, he writes, the law has rich theoretical resources with which to address them. On the other hand, the author acknowledges, one can easily imagine substantial changes in particular doctrines.

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders (DO) and demonstrate that the law leaves a gap in the ability to confine them. Next I explore the means by which the law has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime.

Thinking about addictions has been dominated by two models: the medical model, which treats addiction as a disease and related behaviors as signs and symptoms, and the moral model, which views addiction and related behaviors as indications of moral failure. This article describes both models and their implications, with special emphasis on the moral model. The meaning of compulsion or coercion caused by internal psychological states, such as craving, is explored to determine if addicts may fairly be held morally and legally responsible for their behavior, such as seeking and using substances. It is argued that diminished rationality better explains than compulsion why addicts might be excused for their behavior, but it is concluded that most addicts can be held responsible for most addiction-related behavior. Nonetheless, both models have desirable characteristics, and sound public policy should not be based solely on either. The implications for criminal justice of employing both models to guide policy are explored.

This chapter argues that neuroscience is largely irrelevant if the concept of responsibility is properly understood and evaluated. It begins with a positive description of the dominant conception of personhood and responsibility in Western law and morality. It then considers and rejects the challenge to this conception that any materialist scientific understanding of behavior, including neuroscientific explanation, creates. It argues that unless brain science evolves to such a stage that it radically undermines current conceptions of personhood, the brain will largely be irrelevant to ascriptions of moral and legal responsibility. The chapter concludes by returning to Roper and suggesting the proper way that the case should be argued.

This article addresses whether the state has the right to medicate involuntarily a defendant who is incompetent either to plead guilty or to stand trial for the purpose of restoring legal competence. It first presents the constitutional background concerning incompetence and the right of prisoners generally to refuse psychotropic medication. Then the article examines the individual and state interests that must be considered to decide specifically whether the state may involuntarily medicate a criminal defendant solely for the purpose of restoring competence. Although the individual interests are strong, the article contends that the state does have a right to medicate involuntarily defendants charged with most crimes to restore trial competence, and that adequate remedies are available to ensure that medicated defendants receive a fair trial.

Why do we fear preventive detention and believe that it requires special justification? Citizens in free, democratic societies are accustomed to substantial limitations on liberty that are justified morally and politically by the “common good.” Avoiding serious danger is a greater good than most, but the power of the state to confine dangerous people or to reduce danger by equally oppressive intrusions is considered especially fearsome. The usual, and generally uncontroversial, justifications given for such deprivations of liberty are that the person has culpably committed a criminal offense or that the agent is not responsible for the danger he or she presents. Criminal imprisonment and various forms of civil commitment, for example, which preempt potentially dangerous conduct by incapacitation, are considered reasonable deprivations of liberty in such cases. But in neither case is the state confining on purely preventive grounds a responsible agent who has done no wrong. In contrast, pure preventive detention is an anathema, we believe, because polities devoted to liberty and autonomy have no moral or political warrant to confine or similarly oppress innocent, responsible agents. What could justify such a vast intrusion on the liberty of such agents to pursue their projects? I recognize that the state has an uncontroversial right to quarantine innocent, responsible agents if such agents have communicable diseases and no less intrusive intervention will prevent infection of others. Although many forms of communicable disease can be spread by conduct, the justification of pure quarantine requires no action or potential action. It is a purely public health measure directed toward microorganisms that has the undesirable effect of limiting freedom of action. This article addresses only the preemption of dangerous conduct, which might in some cases include the transmission of disease. See generally Michael Corrado, Punishment, Quarantine, and Preventive Detention, 15 C rim. J ust. E thics 3 (Summer/Fall 1996).

Hyman's (2007) sensible, sophisticated, and balanced article makes the following important points about addictions. Whether addiction should be considered a disease, a moral failure, or sometimes b...

Few legal terms confuse behavioral scientists and mental health professionals more than mens rea (guilty mind), largely because the law employs the term in diverse and often inconsistent ways. This chapter attempts to clarify the numerous confusions and to explain why mens rea is central to criminal liability. It begins with a brief introduction to criminal liability and the most general usages of mens rea, establishes a working vocabulary, and provides an understanding of the relevant criminal law doctrines. The chapter then addresses the law’s concept of the person and the moral justifications for punishment because the requirement of mens rea for criminal liability is derived from these considerations. The chapter then examines in detail the technical meaning of mens rea, including the distinction between “specific” and “general” intent.

"Uncontrollable Urges and Irrational People" addresses the fundamental issue the Supreme Court will decide this term in In re Crane: the constitutionally acceptable standard for indefinite involuntary civil commitment of mentally abnormal sexual predators. It makes four principal arguments. First, it claims that genuine non-responsibility should be a necessary, limiting precondition for indefinite involuntary commitment, and that the "loss of control" language in the Court's opinion in Hendricks should be understood as a proxy for non-responsibility generally. Second, it argues that loss of control standards, as criteria for non-responsibility, are unworkable. The essay next turns to "causal link" standards of the type Kansas proposes in Crane, which permit a potentially violent predator to be confined if a mental abnormality predisposes the person to commit future acts of violence. It claims that causal link standards are over-inclusive, and, properly understood, are not non-responsibility standards at all. Causal link standards are therefore an unjustifiable threat to liberty. Finally, the essay proposes that a lack of capacity for rationality is a genuine and workable non-responsibility standard that could properly justify and limit indefinite involuntary commitment.

This brief note suggests that amnesia and the law (or any other behavioral condition and the law) is not a jurisprudentially interesting topic because such behavioral conditions do not require distinct legal critera and procedures. Rather, the issues that each raises are examples of more general normative issues, such as the proper criteria for competence or responsibility, that should be addressed more generally and directly. Distinct behavioral conditions are simply factors that should be used as evidence when the law adjudicates or develops more general doctrines. Language: en

In recent years there has been increasing skepticism about the therapeutic promis of the juvinile court and increasing attention to due process for juveniles accused of delinquent offenses and other behaviors which might invoke juvenile court jurisdiction. Reflective of these trends are the model standards embodied in the IJA/ABA Juvenile Justice Standards, which provide for primary emphasis on the rights and interests of the juvenile, to be furthered by a principle of least intervention. The Standards imply a substantial but considerably more modest role for mental health service providers in juvenile justice. Such a change is consistent with a model of treatment based on respect for the individual and automomous, contractual relations between helping professionals and their clients.

The insanity defense must be retained because it is fundamentally just. Some mentally disordered defendants are so irrational at the time of their offenses that they lack the basic preconditions of moral responsibility, and therefore they must be excused. Retaining the insanity defense will not compromise public safety, nor will abolishing it lead to the remedying of associated social problems such as the substandard mental health care in jails and prisons. Nevertheless, there are real problems with the administration of the defense that must be addressed. The substantive tests must be revised, the burden of persuasion should be put on the defendant, the role of experts should be limited, and post-acquittal procedures must be made more rational. Impatience with the practical problems, which can be ameliorated by sensible reforms, should not cause society to abandon a basically fair doctrine.

How are things down in the trenches? I was so glad to get your letter; it's good to know that someone down there is listening. I should have thought it would be hard to hear, what with the Boch lobbing shells from the bench and counsel tables, but you got the message loud and clear. (By the way, watch out for the incoming from your own counsel-it can be devastating.) Your field report from the last engagement filled me with admiration and inspired me to respond. From your description, it sounds like you fought the good fight according to the strategy we've worked out up in the Tower. Of course, there was some backsliding and use of unauthorized manoeuvres such as using diagnostic labels (and, how does one use them in an "explanatory fashion"?) and offering an opinion on the ultimate issue (indeed!). I appreciate, however, that the hurly-burly of battle often calls for modifications in the pristine tactics worked out by theoreticians far removed from the fray. Moreover, it appears that you tried mightily to keep your deployments scientifically respectable and ethically proper. (Also, if your letter is an indication, you surely returned your fire with great eloquence and need never be modest on that score.) For all these reasons, your apology for failure to follow orders is perfectly accepted, but I want to encourage you to continue both to attempt to stick to the game plan and to educate the Boch, who can be notoriously rigid and slow to learn.

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