Richard Bonnie

Excusing and Punishing in Criminal Adjudication: A Reality Check

PUBLISHER
Cornell Journal of Law & Public Policy
DATE
1995
 

Abstract

The popular press is replete with stories claiming the so-called "abuse excuse" typifies a proliferating array of blame-shifting psychological defenses in criminal proceedings.' Some writers further suggest these so-called "syndrome defenses" reflect and reveal a softening of public attitudes toward personal responsibility and a greater willingness to excuse criminal wrongdoing. 

Though these are empirical claims, I doubt they are true. First, there is no evidence the law is becoming more receptive to excuse claims. When socalled syndrome evidence has been admitted on a defendant's behalf, the evidence has almost always been relevant either to well-established defenses, such as self-defense or duress, or to previously established grounds of mitigation in murder cases, such as the "extreme mental or emotional disturbance" which reduces murder to manslaughter in New York. Second, there is no persuasive evidence that judges or juries are now more frequently excusing defendants. Of course, there are occasional verdicts which seem to stretch or even nullify the governing law. However, these cases are aberrations. Admittedly, these aberrational verdicts could signal a trend if they reflect or portend a sympathetic change in the community's moral intuitions. But there is little, if any, evidence that the public at large is becoming more receptive to blame-shifting defenses. If anything, I detect a hardening public attitude, not a more forgiving one. In short, the supposed proliferation of excuses is a figment of the media's.collective imagination.

My claim is proven by reading a sample of newspaper and magazine articles (or broadcast media transcripts) which purport to document the "trend" toward proliferating excuses. These stories follow a standard format: They describe a recent trial of local interest, using it as a springboard to discuss the "abuse excuse" trend and including quotations from defense attorneys who applaud the trend and quotations from prosecutors who decry it. The following article is illustrative:
On June 30, 1994, the Associated Press ran a story datelined from Los Angeles entitled "More Accused Turn to Abuse as an Excuse." The lead paragraph described a case in which a man named Moosa Hanoukai was convicted of manslaughter, and received an eleven-year prison sentence, for fatally beating his wife with a wrench. Obviously, Mr. Hanoukai was not excused. However, the reporter's angle on the case was that Mr. Hanoukai received a relatively light sentence because he did not get convicted of murder. Hanoukai's attorney characterized the manslaughter conviction as a "major victory."

Citation

Richard J. Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 Cornell Journal of Law & Public Policy 1-17 (1995).
 

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