§ 26.03 Diminished Capacity: "Partial Responsibility" Defense
[A] Rule
[1] In General
Only a few states recognize a "partial responsibility" defense. Where it does apply, it is only a defense to murder to mitigate the offense to manslaughter. As discussed below, the California Supreme Court promulgated the United States judicial version of the doctrine in the 1960s.32 Only four other state courts adopted the defense.33 The drafters of the Model Penal Code developed a different version of the partial responsibility doctrine. Although legislatures and courts only rarely recognize the doctrine as a partial defense, "it has long been applied, at least implicitly, by judges during sentencing."34
[2] The Largely Discredited California Approach
The partial responsibility defense was adopted "through the judicial back door,"35 in order to allow mitigation of some homicides from first-degree to second-degree murder. Later the mitigation process extended to reducing murder to manslaughter. California courts led the judicial movement.
In order to avoid the appearance of encroaching on legislative authority, the California Supreme Court dressed the partial responsibility defense in "mens rea clothing."36 That is, the judges developed strained definitions of mens rea terms; then the courts concluded that mentally impaired actors lacked the mental states (under the new strained definitions) to be convicted of first-degree or second-degree murder. In fact, however, the true rationale of the partial responsibility doctrine was—and is—that a person who does not meet the state's definition of insanity, but who suffers from a mental abnormality, is less blameworthy, and therefore less deserving of punishment, than a killer who acts with a normal state of mind.37
For example, in People v. Conley,38 C shot his ex-lover and her husband after planning their deaths over a weekend. According to psychiatric testimony, C suffered from "personality fragmentation" and was in a "dissociative state" on the fatal weekend. Nonetheless, the jury found that at the time of the crime, C killed the victims intentionally and with premeditation and deliberation. In short, the mens rea variant of the diminished capacity defense apparently did not apply.
The California Supreme Court overturned C's first-degree murder conviction, although it accepted the jury's findings. It stated that the judge had failed to instruct the jury properly on the element of "malice aforethought," the mental element of murder that distinguishes it from manslaughter. To act with "malice aforethought," the court stated, a person must be aware of his "obligation to act within the general body of laws regulating society." If C, although sane, lacked this awareness, he did not act with "malice aforethought" and, therefore, lacked the required mens rea of murder and could be guilty only of manslaughter. Of course, a person who is unaware of his obligation to act within the law because he suffers from a mental disease or defect is probably insane because he does not know right from wrong. What the court really was doing was creating a mini-insanity defense, so that a jury could mitigate a defendant's guilt when it was unwilling to find insanity.
Subsequently, the California Supreme Court extended the doctrine. Probably because the state legislature had not codified the irresistible-impulse test of insanity, the court further redefined "malice," by including a volitional feature. According to the court, "malice" was absent if, as the result of a mental abnormality, the defendant was "unaware of or unable to act in accordance with the law."39
In response to controversial verdicts involving the diminished capacity defense, the California legislature and the state's electorate abolished the partial responsibility form of the diminished capacity doctrine in the 1980s.40
[3] The Model Penal Code Approach
The Model Penal Code provides that a homicide that would otherwise constitute murder is manslaughter if it is committed as the result of "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse." The reasonableness of the actor's explanation or excuse for the "extreme mental or emotional disturbance" (EMED) is "determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be."41
The EMED provision has two purposes: (1) it codifies and expands on the common law "sudden heat of passion" doctrine;42 and (2) it permits, but does not require, courts in states that adopt the EMED language to recognize a partial responsibility defense.43 At least 10 states have adopted the EMED provision by statute or judicial interpreta-tion.44 The Commentary to the Code...
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