The uneasy entente between legal insanity and mens rea: beyond Clark v. Arizona.

• Author: Morse, Stephen J.

1. INTRODUCTION II. CRIMINAL RESPONSIBILITY AND THE CONSTITUTION III. MENTAL DISORDER AND CRIMINAL RESPONSIBILITY A. MENTAL DISORDER B. THE ACT DOCTRINE C. MENS REA D. LEGAL INSANITY E. MENS REA AND LEGAL INSANITY IV. CLARK V. ARIZONA A. BACKGROUND B. THE INSANITY ISSUE C. THE MENS REA ISSUE 1. The Tripartite Evidence Construction 2. The Channeling Argument V. THE CONSTITUTIONALITY AND WISDOM OF ABOLISHING MENS REA AND LEGAL INSANITY A. ABOLISHING MENS REA B. ABOLISHING THE INSANITY DEFENSE C. ALTERNATIVES TO ABOLITION VI. THE FUTURE OF MENS REA AND LEGAL INSANITY A. THE GENERAL CHALLENGE TO RESPONSIBILITY B. THE ROOTS OF RESPONSIBILITY VII. MENS REA, LEGAL INSANITY, AND COMMON SENSE VIII. CONCLUSION I. INTRODUCTION

   Ever since the affirmative defense of insanity took its first truly modern breath in 1843 in M'Naghten's Case, (1) its relationship to its cousin, mens rea, (2) has been plagued with confusion. How can one be "insane" yet still have the mental state element required by the definition of a particular crime? Can mens rea alone be a sufficient basis for a sensible theory of criminal responsibility? Are there constitutional limits to a state's power to eliminate or restrict the insanity defense or the mens rea requirement? May states constitutionally preclude defense evidence directly relevant to insanity or lack of mens rea? More generally, what impact should recognized mental disorders have on criminal responsibility? Should evolving ideas about the nature and causes of mental disorders and of human behavior in general require changes in our settled views of blameworthiness?

   In Clark v. Arizona, (3) the Supreme Court recently had one of its rare opportunities to clarify some of these issues. (4) The questions Clark presented were whether Arizona's unusually narrow insanity defense test violated the defendant's substantive due process rights and whether an Arizona rule that excluded virtually all expert evidence concerning mental disorder offered for the purpose of negating mens rea violated procedural due process. (5) Alas, the decision clarified little and may in fact have further muddied the conceptual and practical waters. (6)

   To lay the foundation for understanding Clark, in Parts II and III we first examine the law of criminal responsibility, including its constitutional dimensions, and then explore the relevance of mental disorder to well-settled principles of criminal responsibility, such as the formation of mens rea and the criteria for the defense of insanity. Part IV considers Clark in detail. Part V addresses the constitutionality and wisdom of abolishing either the requirement of mens rea or the defense of legal insanity. Part VI considers the future of these two doctrines, both of which, we contend, are central to preserving just and sensible principles of blameworthiness. We conclude that contemporary scientific approaches to understanding human behavior do not undermine these principles and our legal practices based on them.

2. CRIMINAL RESPONSIBILITY AND THE CONSTITUTION

   The structure of criminal responsibility is superficially straightforward. Crimes are defined by their "elements," which always include a prohibited act and in most cases a mental state, a mens rea, such as intent. The Constitution's Due Process Clause has been construed to require that the prosecution must prove all the elements defining a criminal offense beyond a reasonable doubt. (7) Even if the state can prove all the elements beyond a reasonable doubt, the defendant may avoid criminal liability by establishing an affirmative defense of justification or excuse. (8) The Due Process Clause has been interpreted to permit a state to place the burden of persuasion for affirmative defenses on either the prosecution or the defense. (9)

   Persistent confusion about the meaning of mens rea, as well as deep and complex constitutional issues, cloud this facially straightforward account of criminal responsibility. First, let us clarify some terminological confusion. In its narrow sense, mens rea refers to the specific mental state or states required by the definition of all crimes other than strict liability crimes. (10) The state must prove these definitional elements beyond a reasonable doubt. Mens rea in this sense is absent, and the defendant must be acquitted of a crime requiring such a mens rea, if the defendant is able to cast a reasonable doubt on whether the mental state was formed in fact.

   "Mens rea" is also sometimes used more broadly to refer generally to criminal liability, responsibility, blameworthiness, or culpability. In these senses, it refers to the situation in which the prosecution is able to prove all the definitional elements beyond a reasonable doubt and the defendant fails to establish an affirmative defense. (11) Under these conditions, the defendant is ultimately blameworthy or criminally responsible. The defendant can avoid mens rea in this broader sense, defeating any criminal blameworthiness, either by negating any element of the crime charged or by establishing an affirmative defense. In the remainder of this Article, we will use the term mens rea in the narrower sense--the specific mental state element required by the definition of the crime.

   Defining crimes is a quintessential right of states, (12) but many crimes have significant common law, and indeed pre-common law, (13) roots predating the settlements in the Constitution. This raises the central constitutional question about crime: are there constitutional limitations on a state's right to define crimes grounded in common law principles codified in the Constitution, either expressly or, more fruitfully, implicitly in the doctrine of substantive due process? (14)

   In Robinson v. California, (15) the Court held that the Eighth Amendment prohibited punishing a person for being an addict. The Justices disagreed substantially about the rationale for the holding, and there was no single opinion for the Court. The plurality opinion was replete, however, with suggestions that criminalizing and punishing the status of being an addict is unconstitutional because that status is beyond the control of the addict. (16) The Robinson Court did not explain how the taking of illegal drugs by an addict--which it took great pains to admit could be criminalized by the state--is any more within the addict's control than the status of being an addict.

   Six years later, the Court stepped back from the precipice of constitutionalizing "loss of control" in Powell v. Texas, (17) which held that the Constitution does not prevent a state from criminalizing public drunkenness, even when the target of the prosecution is suffering from the "disease" of chronic alcoholism and is thus allegedly powerless to control his behavior. Although Justice Marshall's plurality opinion in Powell has been read narrowly as simply an unwillingness to extend Robinson from the impermissibility of punishing a status to the impermissibility of punishing allegedly uncontrollable acts, the opinion signaled more broadly that the Court considered the doctrines of criminal responsibility firmly within the discretion of the states. It said it was loathe "under the aegis of the Cruel and Unusual Punishment Clause" to become "the ultimate arbiter of the standards of criminal responsibility." (18) Justice Marshall explained:

   We cannot cast aside the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds. The doctrines of actus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States. (19) It is difficult to imagine a clearer, more straightforward expression of deference to the states concerning the definitions of crimes and defenses. Yet, beginning in 1975, the Court decided a series of cases that vacillated on the question of the constitutional limits on a state's freedom to define crimes and defenses and the concomitant power to allocate criminal burdens of proof.

   In Mullaney v. Wilbur, (20) the Court considered the constitutionality of Maine's rather unique burden-shifting murder statute. Maine included "malice" as one of the elements of murder, but defined it to exclude killings committed in the heat of passion upon sudden provocation. (21) Even though malice so defined was an element of the crime--an element the prosecution had to prove beyond a reasonable doubt--the Maine statute imposed the burden of proving provocation/passion on the defendant. (22) This shifting of the burden of proof clearly violated Winship's requirement that the state must prove every element of the crime charged beyond a reasonable doubt, and the Court had little trouble striking down the statute on that basis. The opinion also contained stunning language, however, that seemed to suggest that Winship applied to any fact bearing on the defendant's "degree of criminal culpability," (23) whether or not it was among the elements of the crime. (24) It appeared that the Supreme Court was taking a tentative further step toward constitutionalizing substantive criminal law.

   The imagined turn toward a more intrusive federal role in the substantive criminal law proved just that--imagined. Two years after the controversial dictum in Mullaney, the Court returned to Powell's more restrained approach in Patterson v. New York, (25) which addressed a New York statute that was functionally equivalent to the Maine statute considered in Mullaney. To reduce a killing from murder to manslaughter, New York had adopted the Model Penal Code's "extreme emotional disturbance" test. (26) This...