Evil or Ill? Justifying the Insanity Defense.

• Author: Colb, Sherry F.
• Position: Review

EVIL OR ILL? JUSTIFYING THE INSANITY DEFENSE. By Lawrie Reznek.([dagger]) London: Routledge. 1997. 329pp. $24.99.

1. RECIPE FOR EXCUSES

   In Evil or Ill? Justifying The Insanity Defense, psychiatrist and philosopher Lawrie Reznek proposes a formula that he argues will identify all appropriate excuses in the criminal law.(1) As Reznek notes, prevailing contemporary theories of excuse derive from Aristotle's The Nicomachean Ethics, in which Aristotle sets forth ignorance and compulsion as the two alternative excusing conditions.(2) Reznek observes that Aristotle's conception of excuses has proved prescient but ultimately incomplete.(3)

   Using a creative series of hypothetical scenarios, Reznek argues that ignorance and compulsion are neither individually necessary nor together sufficient to account for all circumstances in which modem Western societies will excuse wrongdoing. He contends that "the best way to make sense of excuses is that these [excusing conditions] are features which show that even though the person did a harmful thing, he is nonetheless a good character."(4) Conversely, a harmful act whose features demonstrate the actor's evil character will not be excused.

   As a further condition of criminal responsibility, Reznek requires that an act be freely chosen. The formula for blame (and, by negative implication, for excuse) is that "[t]o be evil, behaviour must be explained by a person's indifference to the needs of others in the pursuit of his own selfish interests, and his acting freely."(5) In this approach, cognitive or volitional impairments will usually provide an excuse because a person who acts under compulsion or ignorance has not thereby manifested an evil character.

   After introducing its normative conclusion, Evil or Ill? goes on to explore the role of character in criminal defenses such as insanity and provocation. Reznek maintains that the successfully tried insanity or provocation defense necessarily convinces the trier of fact that the defendant is essentially a person of good moral character who underwent a temporary change in character due to illness or to the presence of provocative surrounding circumstances.(6) On this theory, a temporary character transformation causally accounts for the conduct charged. Reznek demonstrates skillfully, through examples from news headlines and hypothetical scenarios,(7) that even when a defendant lacks exculpatory ignorance and is not overcome by an irresistible impulse,(8) juries excuse him if his harmful behavior was out of character.(9)

   Eighteenth-century Scottish philosopher David Hume propounded the view that attributions of blame should rest on determinations that persons to be blamed possess an undesirable character trait.(10) More recent scholars (including myself) also have articulated theories of evil character as the foundation of culpability judgments.(11) In my approach, evil character replaces autonomy as the primary litmus test for criminal responsibility.

   Reznek favors a strong version of autonomy as a prerequisite to culpability,(12) as well as an underlying evil character evident in the charged conduct. Although his efforts to integrate these two perspectives on blameworthiness are engaging and thought provoking, his formula ultimately does not provide a coherent account of excuses.

   This book review essay focuses on the tension between character and autonomy. I argue that Reznek's autonomy requirement conflicts with two elements of his analysis: his rejection of a cultural influence defense for criminal conduct, and his partial rejection of an antisocial personality disorder defense. I conclude by proposing an alternative construct to embody the circumstances that enable us to draw reliable character inferences, circumstances that Reznek erroneously identifies as features of autonomy. This alternative construct, which I call "character-detection conditions," could preserve the valuable elements of Reznek's approach, while avoiding its pitfalls. Embracing this alternative would also support my claim that the criminal law does and should require proof of acts manifesting bad character, without requiring proof that those acts were voluntary in the broad sense of the word.

2. THE RELATION OF AUTONOMY TO CHARACTER

   The prevailing paradigm of moral agency,(13) is the rational choice model, under which "[d]esert is based on the principle that a specific blameworthy act can be imputed to the person ... if, but only if, he had the capacity and fair opportunity ... freely to choose whether to violate the moral/legal norms of society."(14) Reznek agrees with the "only if" portion of this equation, holding that free choice is necessary to criminal responsibility. As we will see, however, Reznek's (correct, in my view) treatment of cultural defenses undermines the force of his general claim that a robust autonomy is essential to blame.

   According to most rational choice theorists, character is largely irrelevant to criminal responsibility. If a person is capable of understanding and selecting approved rather than disapproved sorts of conduct, he will be responsible when he selects the latter over the former. It is inappropriate, under such a theory, to inquire about the character traits of the accused.

   Character might not be entirely beside the point, however, if the rational choice theorists were to adopt an autonomy-restraint continuum: The easier it would have been to refrain from harmful conduct, the more autonomous the choice to do harm, and consequently, the more blameworthy the offender's actions. A kind and gentle person need not struggle, for example, to desist from throwing a rock through a neighbor's window. By contrast, a sadist, who enjoys hearing people scream in fright, would like very much to throw the rock and would therefore need to exercise willpower to refrain from doing so. On an autonomy-based theory of responsibility, a good person's failure to resist an evil impulse might therefore constitute a more culpable criminal act than would an evil person's failure to resist the same evil impulse.(15) The person of bad character has less ammunition to deploy in his struggle against evil desires. His freedom to choose to do the right thing is thus impaired by his character.

   Consider a theory that takes a related position on character and choice. Peter Arenella has argued that criminal responsibility presupposes both rational choice and a character that enables a person to experience the moral force of objections to evil conduct.(16) According to Arenella, a person with a purely evil character that gives rise to no altruistic urges is therefore not a moral agent who may be held responsible for her crimes.(17) The good person, by contrast, experiences moral resistance to any harmful urges and is therefore culpable in choosing to overcome that resistance and commit the offense. Thus, within a freedom-centered approach to culpability that includes a consideration of character, an act deriving from an underlying evil character reflects diminished autonomy and accordingly reduces (or may even eliminate) the actor's moral accountability for her conduct.

   Though Reznek, unlike Arenella, would hold a purely evil person accountable for his crimes,(18) he nonetheless agrees with Arenella's contention that autonomy is a necessary element of blame and excuse. Reznek asserts that "[p]raising and blaming [are] governed by the principle that praise and blame must be fair, and we cannot be fair if we morally condemn someone for something not within his control."(19) Significantly, Reznek defines loss of control as extending beyond a simple loss of voluntary muscular movement, such as that experienced during an epileptic seizure.(20) He proposes that even those who act voluntarily--in the literal sense--ought to be excused if they would have been unable to resist their criminal urges under "standard" circumstances.(21) Furthermore, such ordinary circumstances (under which Reznek would be willing to attribute autonomy to the perpetrator) would exclude situations that typically provoke a murderous rage, such as finding one's spouse in bed with another partner, even though the would-be killer could and would have resisted the homicidal urge if a police officer had been present at the scene.(22) In other words, even though such a killer was not acting involuntarily, the presence of provocative (and therefore unusual) surrounding circumstances denied him the level of autonomy that Reznek would recommend before blame could attach. Reznek thus embraces a very robust autonomy requirement as a prerequisite for full moral accountability. He accordingly interprets provocation conditions as negating the usual character inferences that may be drawn by observing an individual's conduct. To illustrate the negation of ordinary inferences from behavior to character, Reznek poses a hypothetical provocation incident in which he is the protagonist:

   I might care for others and not be an abusive or violent man, but when I discover my wife in bed with another man, I may lose control and assault them both. This behaviour is not an accurate reflection of the fact that I am a gentle and caring person. For this reason, losing control provides a person with an excuse.(23) The substitution of "kill" for "assault" in this fact pattern represents the paradigmatic case of the provocation defense to murder, which provides a partial excuse and thereby reduces the charge to manslaughter.(24) Reznek presents this fact pattern to demonstrate how the impairment of one's autonomy also impairs the degree to which one's actions faithfully reflect some underlying character trait. The hypothetical Reznek, in other words, assaults his wife and her paramour but cannot be described as aggressive or assaultive.

   The claim that such actions are uninformative of a person's character assumes, among other things, that such rage represents an objectively normal human reaction that transcends...