The "abuse excuse" in capital sentencing trials: is it relevant to responsibility, punishment, or neither?

• Jurisdiction: United States
• Author: Litton, Paul
• Date: 22 June 2005

1. INTRODUCTION

   During the sentencing phase of a capital trial, it is defense counsel's obligation to humanize their client: (1) to have the jurors see not merely a murderer, but a person in whom we see the "diverse frailties of humankind," (2) which we recognize in ourselves. Counsel, with the aid of a forensic psychologist or social worker, investigate their client's past, often finding evidence that he suffered extraordinary and continual abuse--even murderous behavior directed towards him from his parents--during his formative years. (3) Craig Haney, who has compiled the social histories of many capital defendants, provides disturbing examples:

   [One] defendant was beaten nearly every day of his young life with a switch from a tree or with a belt, was regularly locked in his room, where his parents had removed the handles from the door and installed several locks on the outside of the door and boarded up all the windows. They would leave him in there for days at a time, forcing him to urinate and defecate on the bedroom floor, something for which he would then be punished. He cried and begged to be let out and would become so claustrophobic that he almost asphyxiated several times from the panic attacks that he experienced. The punishment only escalated. As he got older his parents made him do push ups while they held a hunting knife under his chest, as motivation to keep him from faltering. (4) Penalty-phase jurors often find this kind of evidence to be mitigating, as a consideration in favor of life imprisonment over death.

   The purpose of this Article is to articulate the reasons, if any, that evidence of suffering childhood abuse is relevant to a capital defendant's just punishment. The Supreme Court requires state capital schemes to allow a defendant to present evidence of his "character and record ... and the circumstances of [his] offense" (5) precisely because that evidence "is an indispensable prerequisite to a reasoned determination" (6) on punishment. A capital sentencing verdict must not reflect mere sentiment or caprice, but rather a "reasoned moral response." (7) If some jurors are affected by such evidence, but it is irrelevant to a reasoned determination, then there will be some defendants who receive death and others who receive life without the constitutionally required meaningful, reasoned basis to distinguish them. (8)

   Haney exposes one reason for penalty-phase jurors to hear evidence about a defendant's childhood and other life experiences: the idea of a murderer for many people, created by the media, is that of a non-human, pure demonic agent, with "no personal history, no human relationships, and no social context." (9) Evidence of someone's formative circumstances at least reminds jurors that resting in their hands is the life of a person, a real human being. To eliminate from sight the social histories of these defendants would help us only to ignore the societal seeds of violence, which we tolerate to an inexcusable degree, and make the decision to execute all too easy. (10)

   Having jurors hear this evidence is worthwhile if it has the psychological affect of increasing their sense of the gravity of their decision; but that rationale for allowing such evidence does not answer either the theoretical or practical questions at hand. We need a normative account of how penalty-phase jurors should consider evidence of abuse as a morally relevant, mitigating circumstance. Moreover, we need a rationale that is consistent with our moral and legal practices of holding persons responsible.

   Why question whether such evidence is morally relevant to a defendant's responsibility and just punishment? On first look, it seems obvious why it is relevant: children who are severely abused and neglected are more likely to commit violent crimes as adults than others. (11) In short, severe abuse and neglect cause criminal behavior. But James Q. Wilson argues that the law undermines the value of self-control by allowing jurors to consider an "abuse excuse" as a causal explanation of crime. (12) Admitting evidence to explain the cause of a crime is troubling because causal explanations are more relevant to social science than to making a moral judgment about a particular act. We normally express moral judgments, resentment, and indignation towards an agent when perceiving a wrong, without exploring all its possible psychological or social causes. Why, then, should causal explanations matter when determining the morally appropriate response to a capital defendant's murder?

   Relatedly, the "victim of severe childhood deprivation" is a frequent character in the legal and philosophical literature on responsibility and punishment. (13) A central question of responsibility theory is whether our practices of holding each other responsible are compatible with determinism--the view that all events, including human choices and actions, are causally necessitated by previous events and the physical laws of nature. (14) Compatibilists--theorists who defend the compatibility of determinism and responsibility--emphasize that, within our practices, we do not excuse people just because there is a causal story behind their actions; thus, we have no reason to think that determinism would provide an excuse for every human choice or action. (15)

   P.F. Strawson makes the point in the following terms: Within our interpersonal relationships, we are prone to a wide range of reactive emotions, such as resentment, indignation, and gratitude. (16) Implicit in the experience of these emotions is the belief that the persons with whom we have interpersonal relationships are responsible for their actions. When we suspend these reactive emotions towards an agent (and thereby view her as non-responsible), it is never because we think her actions were causally determined, but rather because of the presence of excuses such as "he didn't mean to," "he didn't know," or "he's only a child." (17)

   Our reactive emotions regarding the adult who suffered severe childhood abuse threaten this philosophical defense of responsibility. Even if the resentment and indignation we feel towards a capital defendant are not suspended entirely upon learning that he suffered relentless childhood abuse, they are altered, if not reduced in intensity. Why does knowledge of a defendant's miserable childhood alter our reactive emotions towards him? To what implicit belief are our emotions responding? Perhaps they are responding to the belief that a defendant is less responsible, to some degree, if her criminal disposition were causally determined by abuse suffered as a child. If true, that explanation threatens the compatibilist defense of responsibility. The compatibilist's reliance on our practices of holding each other responsible is undermined if our judgments of responsibility are not as immune to causal explanations (and therefore determinism) as compatibilists, like Strawson, believe.

   Beyond this philosophical issue, the present inquiry is important for its practical implications because of the way judges, prosecutors, and defense attorneys talk about this kind of penalty-phase evidence. In summations like the following, prosecutors ask capital jurors to give little weight to childhood abuse because it demonstrates no excuse:

   What it really comes down to is requiring [defendant] to accept personal responsibility, personal responsibility for his acts. [Defendant] is personally responsible for the ultimate act, the killing of the innocent [victim]. That's the ultimate act and he should be required to accept the ultimate responsibility for that act and that's the death penalty. (18) The defense attorney's response in this case was also typical: "[t]his is not about the acceptance of responsibility.... [The State is] making it appear like the presentation of mitigating factors is a denial of responsibility, where, in fact, it is a legal right." (19) The defense counsel is correct in saying that his client has a legal right to present evidence of his childhood; but that is beside the point. In asking the jury not to give weight to the defendant's proffer, including evidence of childhood abuse, the prosecutor is raising doubt about the evidence's moral relevance to the jury's decision. The prosecutor's remark provokes the question: If evidence regarding the defendant's childhood is not meant to show an excuse, which reduces the defendant's responsibility for his crime, why should the jurors regard the evidence as mitigating?

   The trial court attempted to bring some clarity in its instructions, urging jurors "to remember that evidence of the presence of mitigating factors is not offered to justify or excuse the defendant's conduct. Rather, it is intended to present extenuating facts about the defendant's life or character or the circumstances surrounding the murder that would justify a sentence less than death." (20) The state's high court echoed that description of mitigating evidence, holding that it was improper for the prosecutor to characterize mitigating evidence as an "excuse." (21) In fact, it is quite typical for courts to define mitigating circumstances as "extenuating" or as making the defendant "less deserving" of death, while not providing an excuse or justification. (22)

   The question, though, is why would a defendant's childhood experiences make him less deserving of death. Is the rationale made clear by stating that mitigating factors are not offered to excuse or justify, but rather to show extenuating circumstances? No. "Extenuate" means "[t]o lessen or attempt to lessen the magnitude or seriousness of, especially by providing partial excuses." (23) Princeton's lexical database, WordNet, even equates "extenuating" with "partially excusing or justifying." (24) The idea that suffering severe childhood abuse is an "extenuating" circumstance, but not an excuse, is unhelpful.

   The ABA's Guidelines for the Appointment and Performance of Defense...