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October 9, 2009

How might we punish "semi-voluntary acts"?

The question of this post is prompted by this new paper from Professor Deborah Denno that I just saw on SSRN.  The title of this paper is "Consciousness and Culpability in American Criminal Law," and here is the abstract:

American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category — semi-voluntary acts.

I am inclined, even without having a chance to read the whole paper, to embrace this proposed third category of semi-voluntary acts as a way to describe some wrongful behavior for criminal law purposes.  But that then just requires turning to the really hard question of how semi-voluntary acts ought to be punished.  Should perhaps alternative sentences or technocorrections or other novel punishment be the presumptive response to this new category of consciousness and culpability?

October 9, 2009 at 10:23 AM | Permalink


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Tracked on Oct 9, 2009 6:09:14 PM


How about we worry about the systemic problems we already know and understand a bit better, such as lousy forensic evidence, Brady violations etc before going and adding yet another layer of complexity to the heap? Or bring back a form of insanity defense that is not as proscribed as currently exists, that too would be a great help.

I fear creating a fourth possible category to litigate would just sow confusion, we have lots of problems getting it right with respect to the categories we already have.

Posted by: Soronel Haetir | Oct 9, 2009 11:11:38 AM

What the author is talking about is already accounted for by the concept of diminished capacity. Whether that concept is recognized formally or not, it has long played a role in sentencing.

Indeed, it was instumental in saving Andrea Yates from the DP. Readers might reall that Yates was the mother who waited for her husband to leave for work one morning, and then drowned her defenseless children (the oldest of whom was seven) in the bathtub.

Planned, intentional, multiple child murder is a really good candidate for the death penalty. Yates got a lesser penalty because she convinced the jury that her acts were only "semi-voluntary", i.e., that she was somewhat, although not completely, crazy. So what the author is discussing is old news.

Posted by: Bill Otis | Oct 9, 2009 11:38:26 AM

I agree with Soronel. Law is not psychology. As a psychologist I would argue that no act is truly voluntary as every person is subject to external and internal pressures from their culture, their genes, their upbringing, and so on. But the law has to assume that there is such a thing as a voluntary act not because it's metaphysically true but because the alternative is unworkable. Modern neuroscience that takes place in a lab might offer us some insight into the human condition but it doesn't have the ability to determine how that insight is applied in resolving social disputes between human beings.

Posted by: Daniel | Oct 9, 2009 11:48:20 AM

Mind reading is a supernatural power. Even the Medieval Church attributed it to God, at the time of judgment. Only the lawyer believes it can be done on earth. Modern students have to have cult indoctrination in order to accept this ridiculous idea. Law profs not only believe that, they indoctrinate others into believing that. Because this is a supernatural power, the assessment of intent violates the Establishment Clause.

Its origin makes it worse. The Catechism has an analysis of Mortal Sin. It contains several "elements." The word, element, in the context of misconduct, violates the Establishment Clause. The analysis of elements comes from the catechism, and violates the Establishment Clause. Two elements in the Mortal Sin analysis are knowledge and consent. Therefore the mens rea analysis violates the Establishment clause. Ironically, mortal sin is the stuff in the 10 Commandments. These are universal rules of decent society, and are not unique to a religious text. The crimes and their prohibitions do not violate the Establishment Clause. The use of the Latin terms, actus reus, mens rea, violate the Establishment Clause, as does all Latin in the law. Latin is the foreign language of a church, and unlawful. Imagine a Koran based jurisprudence. The noise would be explosive. The originators of these analyses were monks before they were judges. Their monkishness is presumptive evidence of a violation of the Establishment Clause.

What would a crime law look like to avoid violating the Establishment Clause?

It would look like a law prohibiting a strict liability crime.

Posted by: Supremacy Claus | Oct 9, 2009 2:04:12 PM

Her exemplar of "limbic psychotic trigger reaction" is an interesting choice. I've never heard of it until I read her piece. A quick lit search shows that one psychiatrist is responsible for all of the writings on it. So, it's a disorder that is not formally recognized and the studies have not been replicated.

More importantly, how many semi-conscious states are there in the real world? Yes, philosophers can debate endlessly about whether any of us are ever truly conscious, but since Denno is making a policy argument, is seems entirely relevant as to whether such states exists in any meaningful sense.

Posted by: Steve | Oct 9, 2009 2:46:24 PM


How about hallucinatory states?

I experienced one brought on by a prescription drug combination I had not been warned about. I could have easily done something violent in the condition I found myself in. That experience was shortly before Kennedy's little jaunt through D.C. under similar medications, so I was willing to cut him a great deal of slack. Even if I had been warned I'm not sure I would have been able to keep myself from driving had my experience turned in that direction. That 20 minute period is one of the scariest I have ever gone through.

I do have problems with conditions that only one author is willing to credit. Although I also thought that Daubert hadn't really caught on in criminal trials. Certainly the Daubert requirement for reproducibility seems lacking, as witnessed by the NAS report.

Posted by: Soronel Haetir | Oct 9, 2009 7:39:02 PM

If a brain malfunction can serve to excuse crime, then the even rarer brain superior function should serve to end all above average paychecks.

Prof. Berman has twice my IQ, albeit attenuated by his legal education. I can probably show a physical difference in his brain on PET scan, validating my point better than this proposed new syndrome. I bet the syndrome goes away if the person is given what she wants, after bullying others. Prof. Berman's brain stays cool when problem solving. Mine overheats and sputters during problem solving, according to this study.


What does he make? 5 to 10 times the average salary. No more. His intelligence is involuntary/voluntary. It is involuntary in his being handed a great brain at birth, and voluntary in that he chose to use it, and studied hard. He should be not be rewarded for his semi-voluntary perfect grade averages, book writings, and charismatic, life changing teaching ability. He needs to be paid $50K, like everyone else regular.

Posted by: Supremacy Claus | Oct 9, 2009 8:24:17 PM

Soronel Haetir --

If you're hallucinating, you cannot be criminally liable because your depleted percipient abilities make normal responsibility impossible.

But hallucinogenic states are extremely rare. In my 20 years or so with DOJ and the USAO, I do not recall a single case in which the defendant even claimed such a thing. Being under the influence of non-hallucinogenic drugs or alcohol, yes, but not hallucination.

Mostly the only time the defendant claimed to be hallucinating was after the case, when he saw his lawyer's bill.

Posted by: Bill Otis | Oct 9, 2009 11:28:33 PM


I was totally hallucinating, seeing window curtains as ghosts and stuffed animals. Thankfully I was drawn to an LED which I thought was a gas furnace I was being fed into. That attraction likely saved me from a nasty tumble down a set of stairs. I came out of it screaming some time later.

This on medications I had valid prescriptions for. I have absolutely no idea why people would actually seek out hallucinatory agents. It is nice to know that if I had done something criminal during that period I probably wouldn't have been held responsible.

Posted by: Soronel Haetir | Oct 9, 2009 11:51:09 PM

I should add that the hallucinatory combination I experienced turned out to be common enough that the medication was removed from the market. There are other sleep aid drugs that don't bring on hallucinations when combined with opiates.

Posted by: Soronel Haetir | Oct 9, 2009 11:54:24 PM

Soronel --

Gads, that sounds really frightening. I'm glad you came out of it OK.

Posted by: Bill Otis | Oct 10, 2009 5:19:51 AM


You raise an interesting point. But wouldn't such states as you've described give rise to the affirmative defenses such as insanity? After all, people with psychotic illnesses often experience hallucinations and it can be reasonably argued that this is one of the reasons why we believe they are unable to bring reason to bear on their decisions. I guess I don't see why we need a third category as Denno claims.

As for Daubert and crim law, I believe that is the very issue being debated in the Shanley case in some sense.

Posted by: Steve | Oct 10, 2009 4:36:26 PM


I had not heard of Shanley before your post, I did a google but am having a hard time figuring out what the most current position is. Has anything happened beyond the hearing about a new trial based on questioning the science and IAC?

Posted by: Soronel Haetir | Oct 10, 2009 7:47:37 PM

Sorry, that should have been addressed to Steve not Daniel.

Another question I have. Temporary insanity seems to have become greatly disfavored, especially where the person doesn't have a history. How is that to be squared with pharmacological inducement? Are you stuck hoping for straight acquittal? I can see where that would be a huge gamble, though I suppose going to a jury always is.

Perhaps it is just one of those areas where law and the neurological reality don't mesh real well. Similar to the way Atkins applies to mental retardation but not mental illness, thus requiring pre-majority onset.

Posted by: Soronel Haetir | Oct 10, 2009 11:27:26 PM

Where is the evidence that totally intoxicated people commit more crime than sober ones, controlling for prior criminality? There is none. Intoxicated criminals are the same people as sober criminals.

Posted by: Supremacy Claus | Oct 11, 2009 10:33:25 PM

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