Criminal Law

On Monday, November 3, TJSL’s Criminal Law Society, the Black Law Student Association, and the National Lawyers Guild held a panel discussion on the death penalty in America. Participants (pictured left to right below) were; Investigator, Robert Dean, from the San Diego County District Attorney, Hon. Rudy Gerber (Ret.), Breda Daly, Esq. from the San Diego County District Attorney, Professor John Cotsirilos (USD Law), and our own, Professor Marjorie Cohn.

The participants laid out their positions in typical fashion. The proponents gave testimony about horrible criminals and their impact on victims’ families; while opponents laid out an argument stating that because the western world and other progressive societies do not impose the death penalty on their criminals, as a matter of policy, neither should America.

The proponent’s argument:

Investigator Dean has been a police officer for 40 years. His argument for the imposition of the death penalty stems from his experience witnessing man’s inhumanity to man. He showed a power point displaying some of the many death penalty murders he investigated during his career.

DA Daly opened up about the legal hurdles to imposing the death penalty; namely, that the defendant must meet certain criteria to be charged as such. The defendant must commit murder, and there must be a special circumstance allegation for him or her to be charged with the death penalty. In only two percent of the first-degree murders in California is the death penalty sought. Daly’s chief argument is the defendants who are charged are the worst of the worst; often socio paths, who relish their criminal acts and have no remorse for their “brutal, heinous acts.” She also offered that there are currently 738 people on death row; in 500 or more of those persons charged with the death penalty, there is no issue of guilt, only an issue of punishment. Moreover, there are 16 people who are cleared by SCOTUS to be executed, but the Attorney General is holding up the process because she (AG Harris) is allegedly not moving forward on the issue surrounding the “one drug cocktail” for executions.

The opponent’s argument:

Retired Judge Gerber stated he is a convert against the death penalty. In fact, he worked on the Arizona revision of the death penalty law, with Justice O’Connor, before she served on the Court. In the three main arguments that were proposed in favor of the death penalty, Gerber believes they do not hold water because of the following:

1) The philosophical argument; an eye for an eye. Gerber says this is repudiated repeatedly because we do not take one life for every life that is killed (for example, in crimes of negligent homicide, manslaughter and second degree murder).

2) The empirical argument; where the sentence serves as a deterrent. Gerber states that in over 100 studies the conclusion is that there is no deterrent effect at all on criminals and recidivism. In fact, criminologists believe that four things are necessary for deterrence: the punishment must be swift, certain, painful, and done in public. None of these things are true of the death penalty in America.

3) The therapeutic relief for the victim’s family; there is such a long delay between sentencing and the imposition of the punishment. The wound caused by the crime is reopened to the victim’s family when the criminal is sentenced and executed. Thus, there is no therapeutic effect at all.

Professor Cotsirilos believes the death penalty is a failed policy in the United States. He further his believes by saying that because very country, republic, and democracy in the western world has rejected the death penalty, the public would be safer if the money spent on the death penalty was appropriated in other more tangible ways to prevent crimes. He explains that the death penalty is a “complete violation of everything we stand for in this country” and offers the following in support of the opinion: economic status often determines what type of defense you receive as an accused individual; race and politics are big factors. In fact, in certain counties in California you will be very unlikely to be prosecuted for the death penalty (like San Francisco or San Diego), but even 40 miles north of San Diego you would be more likely to be prosecuted for the death penalty.

The 23 students who attended the panel encompassed a broad cross section of proponents and opponents to the punishment. The question and answer session was lively and informative. Overall, the death penalty will remain a strongly debated issue in this state. Professor Cohn cited statistics that the support is falling, but remains in the majority.

Over the past 10 years, research scientists have made illuminating discoveries about the geography of the typical criminal mind. Recently in one such study, scientists observed a group of 21 people, all of whom were characterized as having “antisocial personality disorder,” a condition often found in criminals. People with the disorder are described as those who “may often violate the law and the rights of others," and "typically have no regard for right and wrong.” When compared with a control group of individuals who did not have a personality disorder, brain scans of the antisocial group showed on average, an 18% and 9% reduction in the volume of two particular frontal brain lobes.

Though intriguing, this is not a ground-breaking discovery. In 2009, another study compared the brain scans of 27 psychopaths, people who have severe antisocial personality disorder, to the brain scans of 32 control individuals who did not exhibit psychopathic tendencies. [In 1980, the Diagnostic and Statistical Manual of Mental Disorders (DSM III) changed the term psychopath to “antisocial personality disorder,” but essentially the terms characterize the same behavior; an abnormal lack of empathy, extreme egocentricity, irresponsible and impulsive conduct and an ability to appear outwardly normal.] The study revealed that the individuals with severe antisocial behavior had deformations in their amygdala, the part of the brain linked to motivation and emotions such as fear and pleasure. The psychopaths showed an average of 18% volume reduction and dramatic thinning of the cortex.

In 2005, Adrian Raine Ph.D, former professor of psychology at the University of Southern California and current chair of the Department of Criminology at the University of Pennsylvania, conducted a study that compared the MRI (magnetic resonance imaging) data of a sampling of 52 individuals that yielded similar results. Raine and his coworkers used five Los Angeles area temporary employment agencies to seek out subjects for the study. In order to determine whether the subjects demonstrated any psychopathic tendencies, and if so, to what degree, they administered various tests including the Psychopathy Checklist–Revised, Structured Clinical Interview for the DSM-IV Mental Disorders (SCID I), and SCID Axis II Personality Disorders (SCID II). Guaranteeing confidentiality, the researchers also sought to compile information about the criminal history of each subject by way of interviews and criminal records searches. Eventually the researchers ended up with a group of 52 individuals. 13 of the 52 demonstrated high psychopathy scores and had been determined to have escaped detection for their crimes, while 16 had high psychopathy scores and had been convicted for their criminal acts. The remaining 23 served as control subjects. The MRI data indicated that volume of prefrontal matter, a region of the brain involved in judgment, planning, and decision making, was on average 22% less in unsuccessful psychopaths than in the control subjects. The prefrontal cortex of psychopaths who had avoided criminal detection was slightly smaller than those who had been detected but the difference was not nearly as significant.

The studies can be characterized as improving understanding of criminal behavior but their increased presence in scientific publications raises the question, “how should we use this information?” The results pose serious questions, the answers of which transcend mere issues of predicting and minimizing criminal behavior. If we can in fact, identify, study and predict criminal behavior, how should we integrate this information into our foundational beliefs surrounding the application of guilt and conviction? Criminal law has taught us that in order to be guilty of some particularly heinous crimes, the requisite mens rea is intent. For inherently dangerous crimes, especially those that demonstrate intent and premeditation, we as a society punish people who in theory, were aware of the gravity of their actions, but committed the crimes regardless. However, these studies indicate that certain individuals with predisposition for criminal behavior have reduced capacity for judgment and decision making. Is it appropriate to convict these individuals when we know they may not have the capacity to make the intentional decisions we accuse them of making?

The ALI Penal Code dictates that a person is not responsible for their criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks the substantial capacity either to appreciate the wrongfulness of his conduct, or to conform their conduct to the requirement of the law. A strong argument can be made that this definition is on point in describing a psychopath and their behavior. In one illustrative case, a convicted murderer struck a plea bargain in which the sentence for killing his wife was reduced to only 11 years based on brain scans that revealed a large cyst that was thought to compromise his cognitive abilities. "Imaging was used to reduce his culpability, to reduce his responsibility," said Raine. "Yet is that not a slippery slope to Armageddon where there's no responsibility in society?"

However, if we are hesitant to convict those who do not understand the gravity of their actions, how do we protect an innocent society from the danger their behavior poses? As future law makers and advocates, these studies pose endless ethical questions and the dilemma is anything but new. Consider Cesare Lombroso, a man who was convinced that physical anomalies and physiognomy could lead to predictions about criminal behavior. He supposed that people were simply born criminals. His theories of criminology were echoed by Hitler as a basis for genocide. It is crucial that we tread carefully when applying the results of these studies.