Washington's Diminished Capacity Defense Under Attack

• Publication year: 1989
• Citation: Vol. 13 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 13, No. 1FALL 1989

ARTICLES

Washington's Diminished Capacity Defense Under Attack

John Q. La Fond(fn*)

Kimberly A. Gaddis(fn**)

I. Introduction

Like many other states,(fn1) Washington provides criminal defendants with the defense of diminished capacity.(fn2) In brief, this doctrine permits individuals charged with a criminal offense to introduce evidence of mental illness or voluntary intoxication to prove they did not act with the mental state required for conviction. A defendant who successfully asserts this defense could be either convicted of a lesser included offense or acquitted outright. If acquitted of all charges, he must be released unless the state seeks to have him civilly committed under the Involuntary Treatment Act as mentally ill and either dangerous or gravely disabled.(fn3)

Recently, Washington's diminished capacity bill has come under fierce attack. During the last two sessions, the Washington legislature has considered several bills,(fn4) sponsored by the Washington Association of Prosecuting Attorneys ("WAPA"), which would drastically revise this defense. Among other things, some of these bills would make diminished capacity an affirmative defense,(fn5) preclude evidence of diminished capacity when crimes of recklessness are charged,(fn6) and require a special verdict when the defense is raised.(fn7) They would also permit involuntary commitment of defendants acquitted by reason of diminished capacity.(fn8) Both imprisonment and subsequent hospitalization of defendants found guilty of some crimes but acquitted of others by reason of diminished capacity are authorized.(fn9) In addition, these bills would permit the prosecutor to impose the insanity defense on unwilling criminal defendants, subjecting them to confinement in a state psychiatric facility.(fn10) The net effect of these proposed changes is to severely restrict the effectiveness of the diminished capacity defense and to provide for continued custodial control of defendants who use it successfully.(fn11)

These bills appear to be a response to a rising public fear(fn12) that "bad actors" who commit serious crimes are increasingly abusing the diminished capacity defense(fn13) to avoid well-deserved criminal punishment.(fn14) In short, the bills are designed to chill assertion of this defense in Washington and to ensure continued state control over those who assert it successfully.

This article will discuss the historical development of the diminished capacity defense and analyze its current conceptual structure and use in Washington. We will then analyze the most recently proposed bill attacking the diminished capacity defense in this state, Substitute House Bill No. 1179.(fn15) Should this legislation (or some variation thereof) be enacted in future sessions, the Washington Supreme Court will undoubtedly be forced to review powerful constitutional challenges to the validity of convictions obtained under the new law. At the very least, the court will have to determine whether the diminished capacity defense is constitutionally required. The court will also have to decide whether it should be characterized as a means of negating the mental state of the crime charged or as an affirmative defense. This decision will determine whether the evidentiary burdens of production and persuasion should rest with the defendant or with the State. Finally, the court will have to ascertain whether compulsory commitment of an acquitted defendant following use of a special verdict is constitutional.

This article will analyze the fundamental alterations which S.H.B. 1179 proposes in light of Washington case law, federal constitutional requirements, and emerging trends in legislative reform. Finally, we will suggest the probable response of the Washington Supreme Court should the proposed legislation (or some variation thereof) be enacted. In so doing, we hope both to clarify the diminished capacity defense in Washington and to demarcate the permissible boundaries of legislative reform.

In our view, many aspects of the legislative proposals to modify the diminished capacity defense are unconstitutional. If any or all of these anticipated constitutional challenges prove successful, a number of criminals convicted after enactment of this bill would be entitled to a new trial. Such result would impose significant burdens on the administration of justice as well as increase the prospect that a number of dangerous criminals would be released from prison or from psychiatric facilities.

II. A Brief Review of Diminished Capacity Defenses

Despite its relatively young history, the diminished capacity defense has proven to be exceptionally confusing and troublesome to courts and scholars alike.(fn16) This is not surprising since there are several versions of the diminished capacity defense, each with a fundamentally different conceptual basis. In order to understand Washington's version and the doctrinal and constitutional consequences which follow, it is useful to first visit the various formulations.

A. The British Defense of "Diminished Responsibility": Formal Mitigation

The "diminished responsibility" defense was a creation of Scottish common law.(fn17) Subsequently, Great Britain enacted it in statutory form at a time when capital punishment was still used in premeditated murder cases.(fn18) Under the British statute, a defendant charged with first degree murder could introduce evidence showing he was mentally disturbed at the time of the offense. If the jury agreed, it could find him guilty of manslaughter even though the prosecution had proved all of the elements of murder. The jury was permitted to enter a more lenient verdict because the defendant was mentally ill at the time of his crime. A verdict of manslaughter would avoid a possible death sentence being imposed on a mentally disturbed offender. In essence, the British doctrine of "diminished responsibility" is a form of mitigation in punishment.(fn19) Because a defendant was mentally disturbed, the jury is essentially deciding that he had acted with "diminished responsibility" and should not be executed.(fn20)

B. California's Diminished Capacity Defense: The "Normative Approach"

Under the prodding of well-known psychiatrists such as Bernard Diamond,(fn21) the California Supreme Court created its own version of the diminished capacity defense. The court initially required admission of psychiatric testimony if it tended to establish that the defendant could not have acted with the mental state required for conviction.(fn22) However, the court did not stop with simply requiring that evidence probative of mens rea had to be admitted in a criminal trial.

During the 1960s the court handed down a series of provocative landmark cases which essentially redefined the state of mind elements required for conviction of homicide in California. In People v. Wolff(fn23) the court reversed the first degree conviction of a 15-year-old schizophrenic youth who had planned and deliberately killed his mother so he could carry out his violent sexual fantasies on neighborhood teen-age girls. The court agreed that Wolff was responsible under California's M'Naghten test of legal insanity since he knew killing another human being was prohibited by law. Nonetheless, it held that the undisputed psychiatric evidence admitted at trial established that the defendant was mentally ill and, consequently, could not "maturely and meaningfully reflect upon the gravity" of his contemplated act.(fn24) The court thereupon convicted him of second degree murder.

Later, in People v. Conley(fn25) the court decided that a defendant was entitled to introduce evidence of mental illness and voluntary intoxication to reduce a charge of first degree murder to voluntary manslaughter. The court concluded that such evidence might demonstrate that the defendant did not act with "malice aforethought" because he was "unable to comprehend his duty to govern his actions in accord with the duty imposed by the law."(fn26)

In 1976 the California Supreme Court held, in People v. Poddar, that: "If it is established that an accused, because he suffered a diminished capacity, was . . . unable to act in accordance with the law" he could only be convicted of manslaughter.(fn27) Thus, under California's ever-expanding diminished capacity defense, volitional as well as cognitive impairment caused by mental illness might negate the "malice aforethought" necessary for conviction of both first and second degree murder.

California's highest court had essentially used the diminished capacity defense to infuse new meaning into the statutory elements of first and second degree homicide. In so doing, the court had created a "mini-insanity" defense.(fn28) If either mental illness or voluntary intoxication had interfered with the defendant's cognitive or volitional functioning, then he might only be convicted of voluntary manslaughter, even though he was not sufficiently impaired to be considered legally insane.

The California Supreme Court can be legitimately criticized for playing fast and loose with the legislature's definition of murder. Essentially, the court had changed the homicide elements from simple "descriptive" terms, identifying purposeful mental states like planning and prediction of causal consequences, into "normative" terms...