Neither desert nor disease

Legal Theory

Volumn 5, Issue 3, 1999, Pages 265-309

  Morse, Stephen J ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 85014707190     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325299053021     Document Type: Article

References (59)

1. I recognize that the state has an uncontroversial right to quarantine innocent, responsible agents if such agents have communicable diseases and no less intrusive intervention will prevent infection of others. Although many forms of communicable disease can be spread by conduct, the justification of pure quarantine requires no action or potential action. It is a purely public health measure directed toward microorganisms that has the undesirable effect of limiting freedom of action. This article addresses only the preemption of dangerous conduct, which might in some cases include the transmission of disease. See generally Michael Corrado, Punishment, Quarantine, and Preventive Detention, 15 CRIM. JUST. ETHICS 3 (Summer/Fall 1996).
2. For a recent attempt to argue this point, see Edward O. Wilson, CONSILIENCE (1998).
3. See, e.g., Daniel Dennett, ELBOW ROOM: THE VARIETIES OF FREE WILL WORTH WANTING 153-72 (1984).
4. H.L.A. Hart, PUNISHMENT AND RESPONSIBILITY 43-44 (1968).
5. R. Jay Wallace, RESPONSIBILITY AND THE MORAL SENTIMENTS 55-58 (1994).
6. I have explored the civil-criminal distinction as a basis for confinement elsewhere and will therefore provide only the briefest sketch here. See Stephen J. Morse, Blame and Danger: An Essay on Preventive Detention, 76 B. U. L. REV. 113, 116-22 (1996).
7. The nonpunitive characterization of such interventions often justifies lesser procedural protections for the potential subject. See, e.g., Allen v. Illinois, 478 U.S. 464 (1986) (Fifth Amendment guarantee against compelled self-incrimination does not apply in a proceeding to determine whether a person is a “sexually dangerous person” because the proceeding is not “criminal”).
8. See Stephen J. Schulhofer, Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws, 7 J. CONTEMP. LEGAL ISSUES 69, 90-94 (1996).
9. See Stephen J. Morse, Fear of Danger, Flight from Culpability, 4 PSYCHOL., PUB. POL'Y, & LAW 250, 262-64 (1998).
10. The analysis of the Kansas statute that follows shamelessly cannibalizes an earlier analysis of the virtually identical Washington State statute. Morse, Fear of Danger note 7, at 136-37.
11. Kan. Stat. Ann. Sec. 59-29a02(a) (1994). This definition and the definition of “mental abnormality” that follows in the text are almost exactly the same as the definitions that the state of Washington adopted in its progenitor, sexual predator act. Wash. Rev. Code Ann. Secs. 71.09.020(1) & (2) (West Supp. 1995). The Washington act was found constitutional by the Washington Supreme Court. In re Young, 857 P.2d 989 (Wash. 1993). On federal appeal, the United States District Court of the Western District of Washington found the act unconstitutional as a violation of due process and of the prohibitions against ex post facto laws and double jeopardy. Young v. Weston, 898 F. Supp. 744 (W.D. Wash. 1995).
12. Kan. Stat. Ann. Sec. 59-29a02(b) (1994).
13. American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 629-73 (4th ed. 1994) [hereinafter DSM-IV].
14. Alexander D. Brooks, The Constitutionality and Morality of Civilly Committing Violent Sexual Predators, 15 U. PUGET SOUND L. REY. 709, 730 (1992) (friend); John Q. La Fond, Washington's Sexually Violent Predators Statute: Law or Lottery? A Response to Professor Brooks, 15 U. PUGET SOUND L. REV. 755, 762-63 (1992) (foe).
15. Alexander Brooks cogently makes this point. See, id. at 730. Hendricks confirms it (at 2081). On the general “legal ambiguity” of the mental illness concept, see Bruce J. Winick, Ambiguities in the LegalMeaning and Significance of Mental Illness, 1 PSYCHOL., PUB. POL'Y, & LAW 534 (1995).
16. Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091, 1112-14 (1985) (demonstrating that if causation were itself an excuse, then under a determinist theory, all actions would be excused); Stephen J. Morse, Culpability and Control, 142 U. PA. L. REV. 1587, 1592-94 (1994) (refuting the “causal” theory of excuse and terming it the “fundamental psycholegal error”) (1994); see also Stephen J.Morse, Brain and Blame, 84 GEO. L. J. 527, 534-37 (1996) (explaining why abnormalities of the brain or nervous system that may play a causal role in criminal conduct do not furnish independent ground for an excuse).
17. Morse, Culpability and Control, id. at 1592.
18. See Robert Nozick, The Nature of Rationality 139-40 (1993) (“At present, we have no adequate theory of the substantive rationality of goals or desires… “).
19. Hendricks, The Nature of Rationality 139-40 note 10, at 2080 [emphasis added].
20. American Bar Association, ABA CRIMINAL JUSTICE MENTAL HEALTH STANDARDS 330, 339-42 (1984); American Psychiatric Association, STATEMENT ON THE INSANITY DEFENSE 11 (1982).
21. See American Bar Association note 15, at 530.
22. Jones v. United States, 463 U.S. 354, n.14 at 365 (1983).
23. Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982). Youngberg further held that if budgetary constraints prevented professionals from providing what they deemed minimally necessary, the professionals would have a good-faith immunity bar to liability. Id. at 323.
24. U.S. 71, 86 (1992).
25. N.W.2d 94 (Wis. 1995).
26. In re Winship, 397 U.S. 358, 363-64 (1970) (holding that the Due Process Clause requires the state to prove every element of the crime charged “beyond a reasonable doubt” to “provide concrete substance for the presumption of innocence-that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law’”).
27. Aristotle, Nicomachean Ethics, bk. III, ch. 5, 27-29.
28. Model Penal Code, Sec. 2.08(2) (Official Draft 1962).
29. U.S. 197 (1977) (permitting New York to place on the defendant the burden of persuasion on the issue of “extreme emotional disturbance,” New York's analogue to the provocation/passion doctrine, which traditionally reduces murder to manslaughter, and permitting the state largely to define as it wishes the elements of crime that the state must prove beyond a reasonable doubt).
30. See Douglas Husak, The Sequential Principle of Relative Culpability, 1 LEGAL THEORY 493 (1995) (defending a qualified version of the claim that culpability is hierarchically arrayed depending on the relative blameworthiness of particular mental states).
31. Oliver Wendell Holmes, Jr., THE COMMON LAW 49-51 (1881; Dover ed., 1991).
32. See especially, Gary T. Marx, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA 89-107 (1988).
33. Stephen J. Morse, Brain and Blame, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA note 19, at 531-34 (1996).
34. See George Fletcher, RETHINKING CRIMINAL LAW 141 (1978).
35. See Callanan v. United States, 364 U.S. 640 (1961).
36. See Model Penal Code and Commentaries, Comment to Sec. 5.03, at 390 (1985).
37. See, e.g., Model Penal Code Sec. 5.01(4).
38. See Norval Morris, MADNESS AND THE CRIMINAL LAW 148-50 (1982). Indeed, the mixed retributive-consequential justification for punishment that uses a proportionate range is probably the dominant view in the United States today.
39. See Stephen J. Morse, Justice, Mercy and Craziness, 36 STAN. L. REV. 1485, 1491-1503 (1984).
40. See C.S. Nino, A Consensual Theory of Punishment, 12 PHIL. &PUB. AFF. 289, 293-300 (1983) (presenting a justification for punishment based on the theory that offenders consent to forgo their immunity from punishment by committing criminal acts). Larry Alexander suggests that consent has draconian implications, in that it can justify any punishment, no matter how disproportionate. Larry Alexander, Consent, Punishment, and Proportionality, 15 PHIL. & PUB. AFF. 178, 179-82 (1986). But see C.S. Nino, Does Consent Override Proportionality?, 15 PHIL. & PUB. AFF. 183 (1986) (responding to Alexander's critique by setting forth and discussing some of the presuppositions of his own thesis).
41. For expositions of the various arguments, see George P. Fletcher, A CRIME OF SELFDEFENSE: BERNHARD GOETZ AND THE LAW ON TRIAL 27-36 (1988); Suzanne Uniacke, PERMISSIBLE KILLING (1994).
42. Many wish to treat reasonable mistake as an excusing condition because objectively there was no need to use deadly force. If the self-defensive killing was not actually necessary, the reasonably mistaken defender has acted wrongfully, but should be excused. See Paul H. Robinson, STRUCTURE AND FUNCTION IN CRIMINAL LAW 100-24 (1997). If the latter view is correct, then reasonable but mistaken self-defense does not qualify as an example of legally authorized, private preemption. I find the minority, “objective” view implausible. The borderline between justification and excuse can be notoriously hazy. See Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897 (1984). In general, however, justifications are ex ante actionguiding rules addressed to all citizens that tell them when it is right, or at least permissible, to cause otherwise prohibited harms. In contrast, excuses are ex post, individualized exonerating factors that indicate that the wrongdoer was not responsible. A careful, reasonable citizen who acts properly under the circumstances is entirely responsible for her conduct, and what more can we ask of any citizen than that she do the right thing under the circumstances. It is profoundly regrettable if the right thing to do causes unnecessary harm, but in a world of inevitably imperfect information and action-guiding rules that tell us how to behave in such a world, the reasonably mistaken agent has surely acted rightly.
43. See, Stephen J. Morse, The “New Syndrome Excuse Syndrome,” 14 CRIM. JUST. ETHICS 3, 12 (Winter/Spring 1995); Robert F. Schopp, JUSTIFICATION DEFENSES AND JUST CONVICTIONS 99-102 (1998).
44. See Randy E. Barnett, Getting Even: Restitution, Preventive Detention, and the Tort/Crime Distinction, 76 B.U.L. REV. 157, 160-64 (1996). Professor Barnett does not extend the concept of communication to threats presented by nonresponsible agents. Id. at 165. There is no reason, however, not to consider the threats of such agents communications, even in the absence of a past history of violent conduct.
45. See John Monahan, Mary Ruggiero, & Herbert D. Friedlander, Stone-Roth Model of Civil Commitment and the California Dangerousness Standard: Operational Comparison, 39 ARCH. GEN. PSYCHIATRY 1267 (1982) (describing the opposition to the dangerousness standard and reporting based on an empirical study that 86%of the patients in the study samplewho were committed on grounds of dangerousness would have also metmore paternalistic criteria); Stephen J.Morse, A Preference for Liberty: The Case Against Involuntary Commitment of the Mentally Disordered, 70 CAL. L. REV. 54 (1982) (discussing the problem of false positives); see also Steven P. Segal, Margaret A. Watson, StephenM.Goldfinger,&David S. Averbuck, Civil Commitment in the Psychiatric Emergency Room: II. Mental Disorder Indicators and Three Dangerousness Criteria, 45 ARCH. GEN. PSYCHIATRY 753 (1988) (clinicians can employ a dangerousness scale of unknown validity reliably, and perceived dangerousness to others was associated with major mental disorder and severity of symptoms).
46. See Barnett, Stone-Roth Model of Civil Commitment and the California Dangerousness Standard: Operational Comparison note 64, at 160-64; and Phillip Montague, PUNISHMENT AS SOCIETAL-DEFENSE 42-48, 61 (1995) (providing a preemptive justification for self-defense by individuals and by states against other, potentially hostile states and recognizing the epistemic problems often attending preemptive action).
47. See Brun-Otto Bryde, Self-Defense, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 213 (1982). I have often independently used the example in conversation, but George Fletcher used it in print and therefore deserves credit. Fletcher, A Crime of Self-Defense, Stone-Roth Model of Civil Commitment and the California Dangerousness Standard: Operational Comparison note 64 note 61, at 20.
48. See Morse, Blame and Danger, Brun-Otto Bryde note 7, at 126-29; Vernon L. Quinsey, Grant T. Harris, Marnie E. Rice, & Catherine A. Cormier, VIOLENT OFFENDERS: APPRAISING AND MANAGING RISK (1998) (reporting newer research results indicating better but not extremely high accuracy). See generally Nicholas Rescher, PREDICTING THE FUTURE: AN INTRODUCTION TO THE THEORY OF FORECASTING 133-56, 191-246 (1998) (evaluating the pitfalls to predictive accuracy in general and to successful prediction of human behavior in particular).
49. Morse, Blame and Danger, Blame and Danger note 7, at 115-16.
50. Alexander D. Brooks, The Constitutionality and Morality of Civilly Committing Violent Sexual Predators, 15 U. PUGET SOUND L. REV. 709 (1992).
51. Jones v. United States, 463 U.S. 354, n.14 at 365 (1983).
52. Cf. Barnett, Jones v. United States note 64, at 167.
53. I owe this useful turn of phrase to John Monahan & DavidWexler, A Definite Maybe: Proof and Probability in Civil Commitment, 2 L. & HUMAN BEHAVIOR 37 (1978).
54. See, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding a state statute prohibiting adult, consenting, private homosexual conduct).
55. The most well-known exemplar was Judge David Bazelon. See David L. Bazelon, The Morality of the Criminal Law, 49 S. CAL. L. REV. 385 (1976). For a more recent example, see Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation? 3 L. & INEQ. 9 (1985).
56. See Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091 (1985); Morse, DEPRIVATION AND DESERT (2000, forthcoming).
57. Cf. Martha Klein, DETERMINISM, BLAMEWORTHINESS AND DEPRIVATION 89-91, 171-174 (1990) (arguing that justice demands reduced sentences in such cases because the criminal has been punished in advance, has paid in advance, by being a victim of unjust conditions).
58. William J. Bennett et al., BODY COUNT 26-29 (1996).
59. State v. Norman, 378 S.E. 2d 8, 9 (N.C. 1989). All facts in the text are taken from the North Carolina Supreme Court's opinion. There was no substantial dispute about the events preceding the homicide.