Moral Judgment: Does the Abuse Excuse Threaten Our Legal System?

James Q. Wilson is a political scientist and James Collins professor of management and public policy at the University of California, Los Angeles. Although well respected for his academic work on crime and policing, he is probably best known as one of an articulate group of conservative intellectual critics of liberal and leftist academic thought. This short essay is squarely within that tradition.

Although I have rarely been accused of being a conservative, I find much to agree with in this interesting, if somewhat polemical, essay on the law of criminal responsibility. Wilson is a fine writer whose concerns about the criminal justice system will strike a chord with many readers. He supports law's traditional commitment to individuals' responsibility for their actions rather than the use of social, psychological, and biological theories to excuse those actions.

Thus Wilson objects to the growing use of expert testimony from psychiatrists and social scientists. He uses the notorious example of Dr. James Grigson, a Texas psychiatrist who, in one of his many assessments of African-American convicted murderers, assured a court that there was a "100 percent and absolute" chance that the defendant would kill again, even though Grigson had never examined the defendant. Wilson does not report, however, that the APA censored Grigson and filed an amicus curiae brief with the Supreme Court against him.

There are, of course, many examples of so-called "experts" whose expertise is dubious and who abuse their credentials for financial reasons. However, Wilson's conviction that this situation reflects the ambiguity of the social sciences as disciplines ignores the many trials in which both sides bring in conflicting expert opinions about ballistic, chemical, or biological evidence.

Wilson also expresses considerable skepticism about the "battered woman syndrome" as a basis for defense arguments that have been used to defend women who kill their husbands. He notes that the evidence for such a syndrome is highly questionable, but that, perhaps because of our sympathy for battered women, both courts and legislatures have seemed eager to accept it. As the law can't discriminate by gender, Wilson notes, this circumstance inevitably led to a man's claiming a "battered person syndrome" as a defense for killing his brother.

Wilson also provides critiques of various uses of the insanity defense, including Judge David Bazelon's Durham criterion of nonresponsibility if the act was the "product of mental disease or defect" and the American Law Institute's somewhat less inclusive standard. He argues that such standards establish responsibility by establishing causality, which fails because there are many causes of crimes that are irrelevant to establishing responsibility.

Moral Judgment also contains persuasive arguments against minimizing responsibility because of alcoholism, cultural and ethnic difference, posttraumatic stress, and other popular explanations of individual crimes. Sometimes Wilson is too persuasive. Thus in his view, the Bernard Goetz trial decision went wrong because the jury used a subjective test of self-defense, the outcome of the O. J. Simpson trial depended on inappropriate questioning of jurors, the Rodney King trial foundered on misuse of an expert witness, and the Dan White trial came to its peculiar end due to the doctrine of diminished capacity. Perhaps the author is right, but racial hatred and homophobia probably played at least as large a role as these legalities.