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University of Pennsylvania Law Professor Stephen J. Morse

Posted May 7, 2003
Criminal Law Needs a Generic Excuse for Compromised Rationality, Morse Argues

Criminal law should include a new doctrinal excuse that would apply to all crimes committed by someone whose rationality is diminished, University of Pennsylvania Law Professor Stephen J. Morse said in the 10th P. Browning Hoffman Memorial Lecture in Law and Psychiatry April 22.

The new doctrine would acknowledge the diminished responsibility of those whose rationality is compromised, Morse said, and be applied case-by-case by judges and juries. It would reduce pressure to widen the insanity defense and dampen the invocation of new syndromes to help partially excuse someone of responsibility for a crime. Morse's idea is laid out in an article forthcoming in the Ohio State Journal of Criminal Law.

"Current Anglo-American law does not have such an excuse," said Morse. But the principal behind the partial excuse is already understood by the courts as important for determining on punishment, he said, citing a Virginia case, Atkins v. Virginia, which categorically prohibited capital punishment of people who are mentally retarded on Eighth Amendment grounds. In that case the court said that people with mental illness can tell right from wrong but because of their impairments can't process information, reason logically, control their impulses or understand others' reactions. "Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability." Furthermore, appropriate punishment "necessarily depends" on culpability, the opinion said.

Morse said his idea derives from his consulting practice. Originally an expert for the prosecution in a murder case, he became convinced that a gross miscarriage of justice had occurred and he is now working for the defense.

The case involved a murderer Morse called "Bruce North" (Morse substituted pseudonyms in his example), a man in his late 20s who—as his father watched in horror—shot a prospective business partner five times during a meeting. North gave incoherent statements to police, suggesting that the victim, "John Ellis," was in fact "channeling" the will of another man who North viewed with deep suspicion, a former associate named "Johnson." North was put under observation for 10 days and subsequently judged normal. One month later he suffered a clear psychotic break and, in retrospect, evidence of psychological deterioration emerged for the several months before the killing. North was now diagnosed with schizophrenia. He was convicted of second-degree murder, with the prosecution contending that North got angry when he realized that the new business deal was not to his advantage. Ellis had given no provocation for the attack, which was not premeditated.

"Did North deserve to be stigmatized as a murderer?" asked Morse. "A mental abnormality substantially impaired his ability to be rational." A mental abnormality that non-culpably reduces rationality rarely negates mens rea, or criminal intent, he said. But even if North was legally sane at the time he killed Ellis he was suffering from a condition that impaired his ability to reason.

Present law is unfair because it does not sufficiently permit mitigating claims, according to Morse. There are now just two excusing conditions in the law, diminished rationality based on infancy or legal insanity, and "hard choices," occasions where a defendant acted under do-it-or-else duress. Morse includes claims for excuses based on newly discovered syndromes as irrationality claims.

The capacity for rationality, the capacity to control oneself, and the "hardness" of a hard choice are all continuum concepts, he said, but the current law only has "bright line" tests: the defendant is or is not insane or did or did not act under duress. The generic excuse would allow gradations of guilt to be plotted along the spectrum of diminishment and coercion.

Homicide is already classified in degrees, Morse pointed out to show that the underlying principle of his idea is accepted by legal theory and could be more generalized.

The lack of a broad mitigating excuse is having corrupting effects on other doctrines, he contended, citing the rise in syndrome excuses. Rarely are these so severe as to detach a defendant from reality, but they are increasingly offered to show compromised rationality. The solution is not to broaden the definition of legally insane—a full excuse—but to introduce a partial excuse to provide proportionate justice.

Partial responsibility could be considered at the sentencing phase, Morse admitted, but he dislikes that solution because of the vagaries of judicial judgment on punishment. Instead, juries should weigh mitigating factors as they consider the crime. "Partial responsibility is a normative judgment and should be made by the community's representatives," he said. "Allow juries to consider partial excuse before convicting."

Morse proposed that the three verdicts now possible—guilty, not guilty and not guilty by reason of insanity—should add a fourth: guilty but partially responsible. It would require defendants to show, first, that their capacity for rationality was substantially diminished at the time of the crime by a mental or emotional illness for which the defendant was not responsible and, second, that this diminished rationality affected his or her conduct. The excuse would not apply in cases where the defendant could be shown to be culpable for his condition, such as in cases where someone stops taking a prescribed medication or uses illegal drugs. Stress, grief, fatigue and low intelligence could be other causes of non-culpable impairment, he also suggested.

Morse said legislatures should set a fixed reduction in sentence for the new verdict, similar to the reduction that comes when murder is changed to manslaughter.

To the objection that such an excuse, which U.Va. law professor John Monahan has called a "punishment discount," would inspire defendants to discover or invent mitigating conditions, Morse said those costs should be borne if they make for a more just system. "Bogus claims are already a feature of mental state excuses," Morse said, "but the requirement that impairment be substantial should curb excesses."

• Reported by M. Marshall

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