Diminished responsibility
Encyclopedia
In criminal law
, diminished responsibility (or diminished capacity) is a potential defense
by excuse
by which defendant
s argue that although they broke the law
, they should not be held fully criminally
liable
for doing so, as their mental functions were "diminished" or impaired. The defense's acceptance in American jurisdictions varies considerably. The majority of states have adopted it by statute or case decision, and a minority even recognise broader defenses such as 'irresistible impulse
'. Some American states restrict the defense to the charge of murder only where a successful defense will result in a manslaughter conviction instead of murder. Until recently, the Republic of Ireland did not accept the partial defense. The Irish Supreme Court had rejected the existence of the defense in The People (DPP) v Joseph O' Mahony [1984] ILRM 244. The case was recently abrogated, however, by enactment of the Criminal Law (Insanity) Act 2006, effective June 1, 2006. The act, in pertinent part, specifically adopted the partial defense for the charge of murder where a successful defense will result in a manslaughter conviction instead of murder.
Diminished capacity is a partial defense to charges that require that the defendant act with a particular state of mind. For example, first degree murder requires that the state prove beyond a reasonable doubt that the defendant acted with premeditation, deliberation and the specific intent to kill - all three are necessary elements of the state's case. If there is evidence sufficient to create a reasonable doubt as to whether the defendant because of mental illness or "defect" possessed the capacity to premeditate, deliberate or form the specific intent to kill then the state cannot convict the defendant of first degree murder. This does not mean that the defendant is entitled to an acquittal. The defendant still might be convicted of second degree murder which only requires that the defendant act with general malice. The defense is to be contrasted with insanity which is a complete but affirmative defense. In most jurisdictions a defendant would be acquitted on the grounds of insanity if the defendant established to the satisfaction of the jury that he suffered from such a mental disease or defect that he was unable to appreciate the consequences of his actions or did not know what he was doing was wrong. As noted a successful insanity defense will result in acquittal although a number of jurisdictions have adopted the guilty but insane verdict. The defense of insanity and diminished capacity although clearly distinct are not inconsistent defenses and both may be at issue in the same case. The critical distinctions are that diminished capacity is a partial, negating defense (negates an element of the state's case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense - the defendant bearing the burden of proving that he was legally insane.
). Peter Arenella, in the Columbia Law Review
(1977 p. 830), stated, "the defense [of diminished responsibility]...was first recognized by Scottish
common law
to reduce the punishment
of the' partially insane' ." It developed from the practice of juries in the 19th century of returning verdicts of guilty with a recommendation as to mercy or mitigation of sentence to reflect any extenuating circumstances. In a series of decisions, given mainly by Lord Deas, a doctrine grew that various types of mental weakness could have the effect of reducing what would otherwise be a conviction for murder
(which attracted capital punishment
) to one for culpable homicide (where the courts had greater discretion in sentencing). An example of a "diminished capacity" might be extremely low intelligence. In the English case of R v Raven (1982) Crim. LR 51 a man who had a physical age of 22 years but a mental age of only 9 years felt provoked by homosexual advances and killed his perceived attacker. His mental deficiency was not in dispute and, since a child of 9 years would not have been criminally responsible (see s50 Children and Young Persons Act 1933), and his mental responsibility for his acts was substantially impaired, manslaughter was the only realistic verdict. The rationale of the defense is that, as a precondition to punishment
, the criminal law requires conduct to be voluntary. If something interferes with the capacity of the individual to choose to break the law, this should be reflected by an excuse or exculpation. The law should balance the need to be fair to the individual wrongdoer, but equally offer some protection to society
from a person who may not have complete control over their behavior.
The effect of the defense varies between the jurisdiction
s. In some, it will result in full excuse and therefore produce a verdict of "not guilty
". In others, it offers only exculpation to a degree, resulting in the substitution of a lesser offence (e.g., manslaughter
instead of murder) or a mitigated sentence
.
California
was the first state in the U.S. to adopt the diminished capacity defense, beginning with People v. Wells, 202 P.2d 53 (1949), and People v. Gorshen, 336 P.2d 492 (1959)http://myweb.wvnet.edu/~jelkins/lawpsy04/diminished.html. The doctrine would soon be abolished by ballot initiative in 1982 following the negative publicity surrounding the case of Dan White
, who had killed George Moscone and Harvey Milk
. While White's defense team did argue successfully for a ruling of diminished capacity, resulting in a verdict of voluntary manslaughter
rather than murder
, an urban legend
that the defense had blamed White's actions on the ingestion of sugar and junk food
(the so-called "Twinkie defense
") sprang up out of inaccurate media coverage. One participant in the debate over diminished capacity rulings waved a Twinkie in the air to make his point. Currently, the California Penal Code
states (2002), "The defense of diminished capacity is hereby abolished ... there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse
..."
addressed the jury (at 51):
This statement became the authoritative version of the test for diminished responsibility and the various factors mentioned by Lord Alness were regarded as being cumulative in nature. The effect was that the test became difficult to satisfy, and the courts adopted the position that the scope of the plea was not to be further widened (e.g. Carraher v HM Advocate (1946) JC 108 held that the plea was not available to a person suffering from psychopathic personality. But in Galbraith v HM Advocate (2002) JC 1 it was held that the formula in Savage was not to be read in a narrow sense, and it was not necessary that all the criteria in that formula had to be present. Furthermore, although the plea had to be
based on some form of mental abnormality, that condition need not be one bordering on insanity. Instead the court ruled that diminished responsibility required the existence of an abnormality of mind which had the effect that the accused's ability to determine or control his actings was substantially impaired. However, the Court excluded from the scope of the plea:
The Scottish Law Commission
reported in 2004 proposing changes to the law on insanity and diminished responsibility
For a comprehensive summary, see Law Commission. Partial Defences to Murder: Overseas Studies Consultation Paper No 173 (Appendices) http://www.lawcom.gov.uk/docs/cp173apps.pdf
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
, diminished responsibility (or diminished capacity) is a potential defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
by excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
by which defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s argue that although they broke the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, they should not be held fully criminally
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
for doing so, as their mental functions were "diminished" or impaired. The defense's acceptance in American jurisdictions varies considerably. The majority of states have adopted it by statute or case decision, and a minority even recognise broader defenses such as 'irresistible impulse
Irresistible impulse
In criminal law, irresistible impulse is a defense by excuse, in this case some sort of insanity, in which the defendant argues that they should not be held criminally liable for their actions that broke the law, because they could not control those actions....
'. Some American states restrict the defense to the charge of murder only where a successful defense will result in a manslaughter conviction instead of murder. Until recently, the Republic of Ireland did not accept the partial defense. The Irish Supreme Court had rejected the existence of the defense in The People (DPP) v Joseph O' Mahony [1984] ILRM 244. The case was recently abrogated, however, by enactment of the Criminal Law (Insanity) Act 2006, effective June 1, 2006. The act, in pertinent part, specifically adopted the partial defense for the charge of murder where a successful defense will result in a manslaughter conviction instead of murder.
Diminished capacity is a partial defense to charges that require that the defendant act with a particular state of mind. For example, first degree murder requires that the state prove beyond a reasonable doubt that the defendant acted with premeditation, deliberation and the specific intent to kill - all three are necessary elements of the state's case. If there is evidence sufficient to create a reasonable doubt as to whether the defendant because of mental illness or "defect" possessed the capacity to premeditate, deliberate or form the specific intent to kill then the state cannot convict the defendant of first degree murder. This does not mean that the defendant is entitled to an acquittal. The defendant still might be convicted of second degree murder which only requires that the defendant act with general malice. The defense is to be contrasted with insanity which is a complete but affirmative defense. In most jurisdictions a defendant would be acquitted on the grounds of insanity if the defendant established to the satisfaction of the jury that he suffered from such a mental disease or defect that he was unable to appreciate the consequences of his actions or did not know what he was doing was wrong. As noted a successful insanity defense will result in acquittal although a number of jurisdictions have adopted the guilty but insane verdict. The defense of insanity and diminished capacity although clearly distinct are not inconsistent defenses and both may be at issue in the same case. The critical distinctions are that diminished capacity is a partial, negating defense (negates an element of the state's case) with the burden on the state to show that the defendant acted with the requisite state of mind while insanity is a complete but affirmative defense - the defendant bearing the burden of proving that he was legally insane.
Discussion
This is an aspect of a more general insanity defense (see the M'Naghten RulesM'Naghten Rules
The M'Naghten rules were a reaction to the acquittal of Daniel McNaughton. They arise from the attempted assassination of the British Prime Minister, Robert Peel, in 1843 by Daniel M'Naghten. In fact, M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later...
). Peter Arenella, in the Columbia Law Review
Columbia Law Review
The Columbia Law Review is a law review edited and published by students at Columbia Law School. In addition to articles, the journal regularly publishes scholarly essays and student notes. It was founded in 1901 by Joseph E. Corrigan and John M. Woolsey, who served as the review's first...
(1977 p. 830), stated, "the defense [of diminished responsibility]...was first recognized by Scottish
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
to reduce the punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
of the
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
(which attracted capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
) to one for culpable homicide (where the courts had greater discretion in sentencing). An example of a "diminished capacity" might be extremely low intelligence. In the English case of R v Raven (1982) Crim. LR 51 a man who had a physical age of 22 years but a mental age of only 9 years felt provoked by homosexual advances and killed his perceived attacker. His mental deficiency was not in dispute and, since a child of 9 years would not have been criminally responsible (see s50 Children and Young Persons Act 1933), and his mental responsibility for his acts was substantially impaired, manslaughter was the only realistic verdict. The rationale of the defense is that, as a precondition to punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
, the criminal law requires conduct to be voluntary. If something interferes with the capacity of the individual to choose to break the law, this should be reflected by an excuse or exculpation. The law should balance the need to be fair to the individual wrongdoer, but equally offer some protection to society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
from a person who may not have complete control over their behavior.
The effect of the defense varies between the jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s. In some, it will result in full excuse and therefore produce a verdict of "not guilty
Guilt (law)
In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute...
". In others, it offers only exculpation to a degree, resulting in the substitution of a lesser offence (e.g., manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
instead of murder) or a mitigated sentence
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
.
California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
was the first state in the U.S. to adopt the diminished capacity defense, beginning with People v. Wells, 202 P.2d 53 (1949), and People v. Gorshen, 336 P.2d 492 (1959)http://myweb.wvnet.edu/~jelkins/lawpsy04/diminished.html. The doctrine would soon be abolished by ballot initiative in 1982 following the negative publicity surrounding the case of Dan White
Dan White
Daniel James "Dan" White was a San Francisco supervisor who assassinated San Francisco Mayor George Moscone and Supervisor Harvey Milk, on Monday, November 27, 1978, at City Hall...
, who had killed George Moscone and Harvey Milk
Moscone-Milk assassinations
The Moscone–Milk assassinations were the killings of San Francisco Mayor George Moscone and San Francisco Supervisor Harvey Milk, who were shot and killed in San Francisco City Hall by former Supervisor Dan White on November 27, 1978...
. While White's defense team did argue successfully for a ruling of diminished capacity, resulting in a verdict of voluntary manslaughter
Voluntary Manslaughter
Voluntary manslaughter is the killing of a human being in which the offender had no prior intent to kill and acted during "the heat of passion," under circumstances that would cause a reasonable person to become emotionally or mentally disturbed. In the Uniform Crime Reports prepared by the...
rather than murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, an urban legend
Urban legend
An urban legend, urban myth, urban tale, or contemporary legend, is a form of modern folklore consisting of stories that may or may not have been believed by their tellers to be true...
that the defense had blamed White's actions on the ingestion of sugar and junk food
Junk food
Junk food is an informal term applied to some foods that are perceived to have little or no nutritional value ; to products with nutritional value, but which also have ingredients considered unhealthy when regularly eaten; or to those considered unhealthy to consume at all...
(the so-called "Twinkie defense
Twinkie defense
"Twinkie defense" is a derisive label for an improbable legal defense. It is not a recognized legal defense in jurisprudence, but a catchall term coined by reporters during their coverage of the trial of defendant Dan White for the murders of San Francisco city supervisor Harvey Milk and mayor...
") sprang up out of inaccurate media coverage. One participant in the debate over diminished capacity rulings waved a Twinkie in the air to make his point. Currently, the California Penal Code
California Penal Code
The Penal Code of California forms the basis for the application of criminal law in the American state of California. It was originally enacted in 1872 as one of the original four California Codes, and has been substantially amended and revised since then....
states (2002), "The defense of diminished capacity is hereby abolished ... there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse
Irresistible impulse
In criminal law, irresistible impulse is a defense by excuse, in this case some sort of insanity, in which the defendant argues that they should not be held criminally liable for their actions that broke the law, because they could not control those actions....
..."
Scottish law
During the course of the 20th century the courts began to limit the mental conditions falling within diminished responsibility. In HM Advocate v Savage (1923) JC 49 Lord AlnessRobert Munro, 1st Baron Alness
Robert Munro, 1st Baron Alness GBE, PC, KC, DL was a Scottish lawyer, judge and Liberal politician. He served as Secretary for Scotland between 1916 and 1922 in David Lloyd George's coalition government and as Lord Justice Clerk between 1922 and 1933.-Background and education:Munro was born in...
addressed the jury (at 51):
- It is very difficult to it put in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on, though not amounting to, insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility. In other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied ... that there must be some form of mental disease.
This statement became the authoritative version of the test for diminished responsibility and the various factors mentioned by Lord Alness were regarded as being cumulative in nature. The effect was that the test became difficult to satisfy, and the courts adopted the position that the scope of the plea was not to be further widened (e.g. Carraher v HM Advocate (1946) JC 108 held that the plea was not available to a person suffering from psychopathic personality. But in Galbraith v HM Advocate (2002) JC 1 it was held that the formula in Savage was not to be read in a narrow sense, and it was not necessary that all the criteria in that formula had to be present. Furthermore, although the plea had to be
based on some form of mental abnormality, that condition need not be one bordering on insanity. Instead the court ruled that diminished responsibility required the existence of an abnormality of mind which had the effect that the accused's ability to determine or control his actings was substantially impaired. However, the Court excluded from the scope of the plea:
- any condition brought on by the consumption of drink or drugs, and
- psychopathic personality disorder.
The Scottish Law Commission
Scottish Law Commission
The Scottish Law Commission is Scottish advisory public body established by Parliament of the United Kingdom in 1965 to keep the law of Scotland under review and recommend necessary reforms to improve, simplify and update Scots law. It plays a leading role in developing the law for the people of...
reported in 2004 proposing changes to the law on insanity and diminished responsibility
Australia and India
At present, Diminished Responsibility exists as a statutory partial defence in most Australian jurisdictions. The defence is only available in cases of murder and serves to reduce the offence to manslaughter.For a comprehensive summary, see Law Commission. Partial Defences to Murder: Overseas Studies Consultation Paper No 173 (Appendices) http://www.lawcom.gov.uk/docs/cp173apps.pdf
See also
- Settled insanitySettled insanitySettled insanity is defined as a permanent or "settled" condition caused by long-term substance abuse and differs from the temporary state of intoxication...
- Mental disorder defenceMental disorder defenceIn the criminal laws of Australia and Canada, the defence of mental disorder is a legal defence by excuse, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.These are a statutory...
- Insanity defense
- Intoxication defence
- Diminished capacity in United States lawDiminished capacity in United States lawDiminished capacity in United States law provides for reduced penalties for certain offenders with mental illness. The U.S. Sentencing Guidelines provide, "A downward departure may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity; and...