C. Diminished Capacity
Turning from heat of passion defenses, diminished capacity provides another venue for consideration of critical psychology. The diminished capacity doctrine allows a criminal defendant to introduce evidence of mental abnormality at trial for one of two reasons. The first possibility is essentially a rule of evidence which allows for negation of a mental element of the crime charged, so as to create a reasonable doubt in the minds of the jurors regarding the presence of a statutorily required mens rea element, thereby exonerating the defendant of that charge. Used in this fashion, diminished capacity is a failure of proof defense as it negates specific intent such as malice, premeditation, or deliberation in murder trials by the tendering of evidence establishing the offender's mental incapacity or abnormality, short of insanity.
Diminished capacity may also be invoked at trial as a defense to homicide offenses. Rather than negating mens rea, its utility stems from the fact that it is an affirmative defense that provides either an excuse or a justification for the crime, thereby offering the opportunity for a mitigated sentence. Diminished capacity may permit proof of mental abnormality or defect severe enough to preclude liability for murder (of any degree). In this way, evidence of diminished capacity may be used to reduce the degree of a crime for which the defendant may be convicted, even if the defendant's conduct satisfied all the formal elements of an higher offense. A successful assertion of this defense results in the accused being adjudged guilty of a lesser degree of the crime because mental or emotional impairment, short of insanity, mitigated their moral blameworthiness and culpability for the act. Accordingly, this version of diminished capacity has been conceptualized as a partial or incomplete defense based on mental abnormality or defect.
The difference between insanity and diminished capacity is one of degree. Just as the criminal law differentially punishes people based upon gradations in mens rea, no principled basis exists for ignoring gradations where mitigating defenses are concerned because, “[t]he proferred evidence is no less reliable in the case of diminished capacity than with insanity. As long as the jury, not the ‘expert’, resolves the moral issues of accountability, there is no good reason for closing our eyes to partial responsibility claims.” Again, critical psychology becomes relevant as certain accused persons may suffer from diagnosable ailments generated by the violence of racism that do not rise to the level of insanity.
That being said, some scholars believe the doctrine of diminished capacity in the context of murder focuses on the wrong question. Professor Morse, for instance, advocates that rather than focusing upon “difficulties, burdens, problems, and misfortunes suffered by the perpetrator,” we should ask, “how hard is it not to offend the law?” Morse believes that the response to this question would reveal that it is not that hard to avoid breaking the law. He argues:
How hard is it not to offend the law? How hard is it not to kill, burgle, rob, rape, and steal? The ability to resist the temptation to violate the law is not akin to the ability required to be a fine athlete, artist, plumber, or doctor. The person is not being asked to exercise a difficult skill; rather, he or she is being asked simply to refrain from engaging in antisocial conduct. Think, too, of all the factors mitigating against such behavior: parental, religious, and school training; peer pressures and cultural expectations; internalized standards (“superego”); fear of capture and punishment; fear of shame; and a host of others. Not all such factors operate on all actors or with great strength: there will be wide individual differences based on life experiences and, perhaps, biological factors. Nonetheless, for all persons there are enormous forces arrayed against lawbreaking.
While persuasive, Morse's underlying assumption must be that the accused is an er(raced) person as many of the factors stressed as mitigating against lawbreaking have particularly responsive, defensive and even revolutionary messages for persons of color--messages which some, outside communities of color, may find antisocial. Indeed, the role of the Black Church, family, and school were integral to the civil rights movement--a movement that at its initiation involved lawbreaking and behavior then seen as antisocial. It is indeed hard to avoid breaking the law in some situations into which persons of color may be forced. For instance, in the case of the cross-burning on the private property of a Black couple, might the law be asking too much to demand that the couple faced with this racialized violence and intimidation not be excused from or justified in a violent response? Professor Paul Butler has analyzed the utility of using subversion, and even violence, to change unjust laws:
The struggle of African Americans, and many concerned others, to crush both the “peculiar institution” of slavery and Jim Crow segregation, is well known and shall not be rehearsed here. . . . The first observation is that the conversion of these discriminatory laws was caused, in part, by violence and subversion.
Further the very definition of antisocial conduct is contextual--what is antisocial in one situation might be seen as legitimate self-defense in another. Similarly, what is antisocial to one person might be seen as mere speech to another--what is antisocial behavior to persons from a majority might be seen as provoked behavior from a racialized community perspective. The definition of antisocial or violent behavior cannot be artificially abstracted to the point where race is removed from the analysis--a more nuanced approach to this endeavor is required. Furthermore, justifying or excusing the behavior of such a defendant does not result in acquittal. Rather, as with provocation and extreme emotional disturbance, the diminished capacity defense serves only as a partial defense to reduce duration of imprisonment or to preclude execution.
While as Morse stresses, “the function of conviction and sentencing is to punish the actor for what he has done, rather than for who he is,” the affirmative defenses offered by the criminal law clearly provide for the possibility that what the actor has done necessarily calibrates with who he or she is. Indeed the “reasonable person” standard found in the defenses of provocation and self-defense necessarily focuses some of the inquiry on the characteristics of the accused. Further, the affirmative defenses, compartmentalized between excuse and justification, do not function in the abstract--who the accused is, and how she has become that person is relevant to the calculus of whether she is worthy of mitigation for the crime committed. It is appropriate to consider any reasonably provable factors that tend to demonstrate that the actors' accountability for their actions is less than that of normal persons under normal circumstances. Indeed as Professor Dressler has indicated:
In our quest to treat people with dignity, we also must not cruelly ignore evidence of illness or other relevant forms of impairment. Each person is unique. We treat criminal actors with dignity when we treat each individual as unique. That means we should consider, and not ignore, the ways in which they differ from other people. One difference may be their mental impairment. If all people, as a species, possess free will, not all people command an equal degree of free will.
Accordingly, the critical psychology above should be considered during criminal trials, where relevant, to elucidate the issues of mental impairment which might actually relate to significant social differences in society, such as race and ethnicity. While admittedly a social construct, the notion of race as carrying societal currency has operated to shape the lives of all Americans irrespective of color and its ramifications impact Americans' lives in both trivial and profound ways.
As W.E.B. DuBois has indicated, “[t]he problem of the twentieth century is the problem of the color line.” Given the reality of historical and contemporary racism in twenty-first century America and its resultant psychological and physiological effects, there is still significant explanatory power, whether excusatory or justificatory, to be gleaned from the ravages of racism in the criminal law context. Mitigating psychological factors may stem from this reality of the color line and should be considered just as any other relevant evidence of mental impairment should be examined in the criminal trial setting. Hence mitigatory considerations for the sentence of the accused should be examined through the lens of a defendant's lived reality. This reality may reveal significant mental health issues which impact upon the issue of moral guilt and criminal culpability. Indeed, as Justice Frankfurter noted in his dissent in Fisher v. United States, “[m]urder cases are apt to be peculiarly individualized.”
Fisher involved a Black defendant who intentionally strangled a White librarian. While Fisher was not legally insane, he was “mentally subnorma[l].” He suffered from an aggressive psychopathic condition that affected his behavior. He killed suddenly, but intentionally; yet, he acted only after the victim called him a “Black nigger.” He was sentenced to death. Dressler's comments about Justice Frankfurter's dissent are apt:
Fisher's impairment, and the victim's racial epithet, may not have been the legal causes of his conduct. His free will acts were the cause. Because he had free will, and chose to kill, he should be punished. But my intuition tells me that the information proferred by the defense would have been highly relevant to morally sensitive jurors in their decision regarding Fisher's degree of moral guilt. Jurors might conclude that it was harder for Fisher than for the juror not to kill.
In this way the culpability of Fisher as a Black man suffering from mental impairment, whether brought on by, or merely exacerbated by, the consequences of race and racism in America, should have been addressed in a holistic fashion to better judge his moral and legal responsibility. The abnormality, when it impairs the exercise of free will, is most relevant to the triers of fact. When the free will of the accused is compromised in some substantial and verifiable way, the jury ought to consider its potential as a source of mitigation, especially when the accused faces the death penalty. Criminal sanctions might properly be vitiated due to an impairment of the accused's volition (such that his intentional commission of the actus reus is questionable) or cognitive functions (such that his ability to form the mens rea) are compromised. Dressler explains this reasoning in greater detail:
[I]nternal forces that serve to prevent law-breaking do not operate equally, or at all, on all people. Where there exists reliable evidence that a particular defendant suffers from some condition, the existence of which has substantial explanatory force regarding the criminal events and helps to explain why the actor committed the crime, then we have learned something very important about the actor (but not about the ultimate harm) that ought not to be ignored. We should not punish persons for possessing bad character, nor should we mitigate or exculpate because of good character. But we ought to consider explanations for behavior that indicate that the actors' personal blameworthiness for the events--their moral accountability for the harm--is less than we ordinarily would expect.
Obviously psychiatric or psychological testimony about diminished capacity must be included in such analysis. This prospect is controversial. Many fear the mental health professional will usurp the role of the judge and jury.
Despite the doctrinal possibilities generated by the infusion of critical psychology into the diminished capacity defense, a nagging concern remains. Unlike provocation or extreme emotional disturbance, diminished capacity is entirely subjective in its recognition of the actor's own mental disorder or emotional instability as a basis for partially excusing his conduct. This removal of analysis from the realm of the objective is worrisome as it has the potential to allow for the peculiar idiosyncrasies of the accused to propel mitigation. Accordingly, the project of diminished capacity doctrine may actually be antagonistic to critical psychology which highlights the possibilities of disparate mental health sequelae as reasonable and expected results of racialized violence, not as peculiar or deranged freak occurrences. The critical psychology discussed above explores the disparate mental health sequelae of persons struggling to cope in unbearable situations-- persons taxed to the breaking point so the catalyst racialized event is the proverbial straw that breaks the camel's back. Further research is in order to ascertain the capacity of racialized abuses to generate defects of the sort conceptualized by diminished capacity. I doubt not that this potential exists, but I am concerned for pathologization of the Black person's experiences and responses to racialized violence. Such potential for pathologization is a well-founded fear. Pathologization shifts the focus to the mental abnormality of the actor and away from an assessment of the deviance of racism itself and its capacity to injure otherwise healthy individuals.
