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Undiminished Confusion in Diminished Capacity

NCJ Number
94864
Journal
Journal of Criminal Law and Criminology Volume: 75 Issue: 1 Dated: (Spring 1984) Pages: 1-55
Author(s)
S J Morse
Date Published
1984
Length
55 pages
Annotation
This article examines two variants of the diminished capacity doctrine: 'mens rea,' common in the United States, and 'partial responsibility,' the rule in Great Britain. It examines the relation of mental disorder to mens rea and the proper use of mental health experts to prove either variant.
Abstract
Courts and legislators are confused about the different variants of the diminished capacity doctrine and often place illogical limitations on them. The law needs to be clarified considerably, and proposed schemes should be tested carefully against their policy rationales to determine if they satisfy those rationales. The mens rea variant should be adopted everywhere as a matter of constitutional law and fairness to defendants; doing so will pose no threat to society. Partial responsibility should be rejected, however. Partial responsibility is a form of lesser legal insanity. Even if the technical elements of an offense are satisfied, the defendant is less culpable and should be convicted of a lesser crime or, at least, should be punished less severely. However, actors who commit the same acts with the same mens rea should, on moral grounds, be convicted of the same crime and punished alike without regard to differences in background, mental or emotional condition, or other factors. Thus, there should be no affirmative defense of partial responsibility, and sentencing should be determinate. In addition, expert testimony should be limited substantially if diminished capacity cases are to be tried sensibly. The law should focus on whether defendants actually formed a mens rea rather than on whether they had the capacity to form it, and both ultimate conclusions and diagnoses should be prohibited. A total of 169 footnotes are provided.