19 Insanity 19 Insanity
19.1 Report to Minnesota Legislature: Mentally Ill Criminals and the Insanity Defense (excerpt) 19.1 Report to Minnesota Legislature: Mentally Ill Criminals and the Insanity Defense (excerpt)
This report is about how the criminal justice system deals with people who have a severe mental illness. Mental illness is a conundrum for the courts. People with schizophrenia, for example, have a profound loss of ability to think, plan, and make decisions because their brains don't work correctly. Some may have a delusion that their life is in danger and commit a crime to protect themselves. Others may hear over-powering voices commanding them to do something wrong. Are such people competent to stand trial or agree to a plea bargain? Do they meet the legal standard of intent to commit a crime? Does their illness excuse them or mitigate the severity ofpunishment? What should happen to them if convicted, or if not convicted?
Because no clear answers exist to these questions, states have taken different legal paths with mental illness. Minnesota, for instance, uses a legal test for judging whether someone is not guilty by reason of insanity that came from a 19th century British case. Other states, however, have adopted newer tests for insanity or have added the verdict "guilty but mentally ill." Some states allow a defendant to claim mental illness as a mitigating factor; others do not. A few states have abolished the insanity defense. Usually these changes reflect shifting public sentiments about whether mentally ill criminals should be punished or treated for their illness, and about how best to protect the public from mentally ill criminals.
New discoveries about mental illness might also cause us to re-examine the treatment of mentally ill people in criminal justice. Until recently, the biological basis of serious mental illness was virtually unknown. Now, high-tech brain scans show the exact areas of a sick brain that are not working properly, and biochemists have discovered some of the chemical pathways in the brain that malfunction in mental illness. These discoveries have increased public awareness ofmental illness and helped reduce the social stigma that is often attached to those who suffer these illnesses.
Severe Mental Illness
Authorities distinguish severe or serious mental illnesses, which are physical diseases of the brain, from less serious mental conditions that are usually psychological but not physical in origin.! Serious mental illness includes schizophrenia, bipolar (manic- depressive) illness, and major depression. Obsessive-compulsive disorder and panic attacks are often added to the list. Together, these illnesses are more common than cancer or heart disease and, over a lifetime, affect one in five families. About 20 percent of the nation's hospital beds are taken by people with a mental illness. Severe brain disorders have both hereditary and environmental causes that are not yet fully understood.
Serious mental illness does not include mental retardation, hyperactivity, multiple personality, personality or character disorder, psychopathic personality, sexual psychopathology, pedophilia, addiction, or similar conditions, although research points increasingly to the likelihood that some of these, too, are related to brain disorders.
Serious mental illness disrupts a person's ability to think, feel, and relate to other people and the physical environment. Many people with a severe mental illness lose their jobs, become estranged from their families, are homeless, or commit suicide. About 160,000 people with severe mental illnesses are in the nation's jails and prisons.
Schizophrenia is the most chronic and disabling mental illness, affecting 1 percent of the population. It usually strikes people in their late teens or early twenties, although victims may have subtle signs ofbrain dysfunction in childhood. Typical symptoms are hallucinations, delusions, and bizarre thinking, collectively referred to as psychosis. People with the illness may believe that their thoughts are under control of someone else or coming from outside their head. Poor brain functioning also causes a breakdown of social relationships, poor communication skills, and lack of motivation. Schizophrenia has different subtypes; one is paranoid schizophrenia, in which the victim has intense fears or feelings of persecution accompanying hallucinations. Although many people with schizophrenia are helped by drug therapy and social assistance, few recover from the disease.
Bipolar illness and depression affect a person's mood more than thinking ability. In bipolar illness, a person's mood cycles between extreme depression, normal mood, and extreme euphoria or mania. In the manic stage a person may have grandiose delusions or psychotic thought processes similar to those of schizophrenia and may abuse illegal drugs or alcohol. At the other extreme, a person who is extremely depressed may feel life is hopeless and have difficulty concentrating or making decisions; suicide is a strong possibility. Mood disorders can usually be treated successfully with drugs and electroconvulsive therapy, but the illness may return intermittently.
Mental Illness and Crime
Crimes by mentally ill people are sometimes very sensational, which may give the public the misperception that mentally ill people often commit violent crimes. Researchers have closely examined the link between mental illness and violent crime. They have found that most people who commit violent crimes are not mentally ill and most mentally ill people do not commit crimes. One study found that about 3 percent of the variation in violent crime in the United States is related to mental illness.
In general, mentally ill people are more likely to be victims of violent crime than perpetrators. But research has pointed to a small group of people with severe mental illness who are at higher risk for violent behavior. People with psychoses - bizarre thinking, hallucinations, and delusions - as found in schizophrenia and, less often, in mood disorders, are more likely to commit violent crimes than people with no mental disorder. This has been reported in many research studies
A connection with violence also applies to people with some neurological brain diseases, such as Huntington's chorea, and to people who have had head injuries that damaged the brain.
A recent study of mentally ill people looked at their use of medication and alcohol in relation to violence. Results showed that when mentally ill people stop taking their medicine and abuse alcohol or illegal drugs, they are more likely to be violent. Violent behavior is also more likely among people with paranoia who hear command voices telling them to kill someone, or who believe their mind is dominated by forces beyond their control. The victims of mentally ill people are often members of their own family.
Frequency of Insanity Pleas and Acquittals
For centuries the law has encompassed the widely held belief that some people are too mentally deranged to know what they are doing and, therefore, cannot be held morally responsible for a crime. This principle came from English common law, which presumed that an illegal act was not a crime unless performed with criminal intent. In a criminal trial, a mentally ill person might be found not guilty by reason of insanity, despite proof that the person had committed a crime.
Insanity pleas and acquittals are relatively uncommon. An eight-state study of 581,000 indictments found 8,979 insanity pleas - a rate of 1.5 percent,6 A different study of insanity cases in four states (California, Georgia, Montana, and New York) showed that of 586,000 felony indictments, only 5,300 (0.9%) had a plea of insanity by the defendant,? And of the 5,300 insanity pleas, there were 1,385 acquittals by reason of insanity - 0.23 percent of indictments and 26 percent of insanity pleas. A study of adult defendants represented by the Public Defender's office in New Jersey found 52 insanity pleas for 32,000 defendants (less than 0.2%) and of the 52 cases, 15 were successful.
The connection between serious mental illness and successful insanity pleas is well documented. The eight-state study of almost 2,600 criminal defendants who were found not guilty by reason of insanity (NGRl) reported that 68 percent had schizophrenia and 16 percent had a severe mood disorder - a total of 84 percent with a severe mental illness. The others were mentally retarded (5%) had another illness (5%), a personality disorder (3.5%), or were chemically dependent. The crimes they had been charged with were murder (150/0), physical assault (38%), other violent crimes (12%), robbery (7%), property crimes (18%), and other minor crimes (10%).
Mentall Illness in Prisons
A report by the federal Bureau of Justice Statistics estimated that 10 percent of inmates in the nation's state prisons and 10 percent of those in local jails currently have a mental illness; another 6 percent have previously had a mental condition. These data are based on self-reporting by inmates in a national survey. About 19 percent of inmates reported that they have taken a prescribed medication for a "mental or emotional condition." Mental illness was reported more often by female prisoners than males, and more often by white prisoners than other races. Alcohol and drug use were more strongly associated with mentally ill inmates than others, and nearly 6 of 10 mentally ill inmates reported that they were under the influence of alcohol or drugs at the time of their current offense. Mentally ill inmates in state prisons serve longer than average sentences because they are more frequently involved in fights and have more disciplinary problems than other inmates.
Legal Dimensions of Menta/Illness and Crime
The large numbers of mentally ill inmates in jails and prisons show that the legal concept of "insanity" is not the same as a medical diagnosis of mental illness, such as schizophrenia or paranoia. In fact, few people who are mentally ill meet t4e legal standard of insanity. The courts use one of several legal tests - not medical tests - to determine whether people meet the standard of insanity that would excuse them from guilt for a crime.
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We first review the most common tests for insanity, then other dimensions of legal process.
McNaughtan test
In 1843 Daniel McNaughtan shot and killed the secretary of the British Prime Minister by mistake while intending to kill the Prime Minister. At trial, McNaughtan was found "not guilty, on the ground of insanity." Public outcry and royal concern about the acquittal led a panel ofjustices to establish a standard for insanity, which is still used by British courts. The test was meant to be used by a jury after hearing medical testimony from prosecution and defense experts. Under this rule a defendant was presumed sane unless the defense proved that:
"At the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, ifhe did know it, that he did not know what he was doing was wrong."
About half of American states use the test [or a modified version, as in New York]. Notice, however, that it does not excuse mentally ill people who knew what they did was wrong but were unable to control their actions. To allow for this possibility, several states have added an exculpatory provision for a person who could not contro
American Law Institute test
In 1972 the Court of Appeals for the District of Columbia endorsed a Model Penal Code standard, which the American Law Institute had proposed in the 1950s. Under the ALI test,
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law.
The ALI test is less stringent than McNaughtan because it does not require a total lack of self-control or inability to know right from wrong, but only that someone with mental illness "lacks substantial capacity" to act and reason normally. The ALI test is used in about 20 states, and it was used in federal courts until 1984, when a more stringent test was adopted.
Appreciation test
In 1984 the appreciation test was made law in all federal courts by act of Congress. A few states have adopted similar laws. These changes were largely a response to public dismay when John Hinckley was found NGRI after his attempted assassination of President Reagan. Federallaw requires that a defendant prove by clear and convincing evidence that:
"At the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts."
At the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. The requirement of "unable to appreciate" is tougher than ALI's "lacks substantial capacity."
No test
Three states have abolished the insanity defense: Utah, Montana, and Idaho. [Note, more states have abolished the test since then]. In these states, however, defendants can offer evidence at trial that they lacked the mental capacity to form the intent to commit the crime they are charged with. The prosecution must rebut this claim beyond a reasonable doubt.
Civil commitment test
Sometimes mentally ill persons who commit crimes go through the civil commitment process instead of being prosecuted. This option might be pursued by the county attorney after an arrest for a misdemeanor, or a mentally ill person might be diverted into the medical system without being arrested or charged for the crime. Mentally ill persons can be committed to supervision and care by the state in a state hospital when they are a danger to themselves or others. (Commitment is also possible for mentally ill persons who are unable to care for themselves.) Behavior that meets the test of dangerousness for civil commitment overlaps with behavior that might be prosecuted as a criminal offense.
Several decades ago, the standards for civil commitment were less stringent than today, and people with a severe mental illness were often committed to care in a state hospital before they would have met today's test of dangerousness. Now, restrictive commitment laws make it more likely that people with severe mental illness are caught up in the criminal justice system. This is a well recognized and often debated national phenomenon.
19.2 Excerpt on Development of the Insanity Defense 19.2 Excerpt on Development of the Insanity Defense
entirely delinks the “insanity” test from any mental disorder predicate and thus gives the factfinder free rein to decide who should be held accountable for criminal acts. Alternatively, academics from the clinical and legal disciplines such as Fingarette,50 Moore,51 Morse52, Sendor,53 and Schopp54 have proposed tests that focus on the rationality of the defendant, a construct which is cognitively oriented but which, its proponents claim, also captures those with volitional impairment who ought to be excused.55 Although the rationality tests vary in form, they all look at the extent to which the thought content of the criminal defendant reflects reality and the manner in which the defendant processes information.
None of these latter tests has been adopted by any state, and the product test exists in only one state.56 The ALI test, on the other hand, proved quite popular, at one time holding sway in virtually all the federal circuits and over half the states (with the rest using M'Naghten alone or combined with an irresistible impulse defense).57 After John Hinckley's acquittal on charges of attempting to assassinate President Reagan, however, the federal government, as well as several states that had adopted the ALI test, eliminated the volitional prong and tried to narrow the scope of the defense in other ways.58 Furthermore, at least five states have now eliminated the insanity defense altogether.59
19.3. Diagram of Insanity Defense Variations
19.4 Stephen Morse, Excusing the Crazy: The Insanity Defense Reconsidered 19.4 Stephen Morse, Excusing the Crazy: The Insanity Defense Reconsidered
The basic moral issue regarding the insanity defense is whether it is just to hold responsible and punish a person who was extremely crazy at the time of the offense.4 Those who believe that the insanity defense should be abolished must claim either that no defendant is extremely crazy at the time of the offense or that it is morally proper to convict and punish such people. Neither claim is easy to justify.
In all societies some people at some times behave crazily—that is, the behavior at those times is recognizably, aberrantly irrational. A small number of these people behave extremely crazily on occasion, including those times when an offense is committed. A hypothetical defendant with a delusional belief that he is the object of a murderous plot, who kills one of the alleged plotters after hallucinating that he hears the plotter's foul threats, is crazy. Such cases are rare, but clearly exist; the influence of extreme craziness on some criminal behavior cannot be denied.
For hundreds of years the common law has recognized the unfairness of holding some crazy persons responsible for their criminal behavior.5 The legal test for insanity, designed to identify the appropriate persons to be excused, has changed over the years. Whether the test seeks to excuse only those akin to wild beasts or also those who lack substantial capacity to conform their conduct to the requirements of law, the moral perception has remained constant: at least some crazy persons should be excused. Those who would abolish the defense must argue that no sound principles underlie the law's consistent retention of the defense. That most past discussions of the issue have failed clearly to identify such principles6 is hardly an argument that they do not exist. I maintain that such sound principles do exist; some persons whose craziness influences their criminal behavior cannot fairly be held responsible and thus do not deserve punishment.
To justify the moral necessity of the insanity defense, I must set forth some assumptions I make about our system of criminal justice. Conviction and punishment are justified only if the defendant deserves them. The basic precondition for desert in all contexts, legal and otherwise, is the actor's responsibility as a moral agent. Any condition or circumstance that sufficiently compromises responsibility must therefore negate desert; a just criminal law will incorporate such conditions and circumstances in its doctrines of excuse. A coherent, purely consequentialist theory of criminal justice, while conceivable, is so unattractive morally that few persons, including most critics of the insanity defense, adhere to such a position.7 Moreover, our present system clearly rests on a much different basis:8 our system of criminal justice accepts desert, whether viewed as a defining or limiting principle,9 as fundamental to guilt and punishment.
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The insanity defense is rooted in moral principles of excuse that are accepted in both ordinary human interaction and criminal law. Our intuition is that minimal rationality (a cognitive capacity) and minimal self-control or lack of compulsion (a volitional capacity) are the essential preconditions for responsibility.10 Young children are not considered responsible for the harms they cause precisely because they lack these capacities.11 Similarly, adults who cause harm while terrifically distraught because of a personal tragedy, for instance, will typically be thought less responsible and culpable for the harm than if they had been normally rational and in control.12 Aristotle recognized these fundamental requirements for responsibility by noting that persons may be less blameworthy for actions committed under the influence of mistake (a cognitive problem) or compulsion (a so-called volitional problem).13
Criminal law defenses that focus on the moral attributes of the defendant are based on these same intuitions and principles. Even if the defendant's conduct fulfills the usual requirements for prima facie guilt—that is, act, mental state, causation, result—the defendant will be found not guilty, not culpable, if the acts committed were the products of cognitive (e.g., infancy) or volitional (e.g., duress) circumstances that were not under the defendant's control. These defenses are considered relevant at the time of guilt determination as well as at the time of sentencing. It would be indeed illogical in a criminal justice system based partly on desert to hold that a defendant with a valid claim of duress is culpable (because he or she intended to do the compelled act), but then to decide to release the defendant because he or she does not deserve punishment. To convict a person with a meritorious defense would offend our conception of the relationship between legal guilt and blameworthiness. A person acting under duress is not culpable, although it is unfortunate that a prohibited act has been committed.
In sum, the moral basis of the insanity defense is that there is no just punishment without desert and no desert without responsibility. Responsibility is, in turn, based on minimal cognitive and volitional competence. Thus, an actor who lacks such competence is not responsible, does not deserve punishment, and cannot justly be punished.
19.5 AN END TO INSANITY: RECASTING THE ROLE OF MENTAL DISABILITY IN CRIMINAL CASES, Christopher Slobogin 19.5 AN END TO INSANITY: RECASTING THE ROLE OF MENTAL DISABILITY IN CRIMINAL CASES, Christopher Slobogin
ABSTRACT
This article argues that mental illness should no longer be the basis for a special defense of insanity. Instead, mental disorder should be considered in criminal cases only if relevant to other excuse doctrines, such as lack of mens rea, self- defense and duress, as those defenses have been defined under modern subjectively-oriented codes. With the advent of these subjectively defined doctrines (a development which, ironically, took place during the same period that insanity formulations expanded), the insanity defense has outlived its usefulness, normatively and practically. Modern official formulations of the defense are overbroad because, fairly construed, they exculpate the vast majority of people who commit serious crime. The most prominent alternative to the official tests–the irrationality threshold–is also flawed because it is based on the unprovable assumption that irrational people are less able to act for good reasons. Acquitting only those who lacked mens rea due to mental dysfunction or who acted on delusions that, if true, would sound in self-defense or duress better captures the universe of people who should be excused because of mental illness. This approach would also enhance the image of the criminal justice system, improve treatment of those with mental illness, and reduce the stigma associated with being mentally ill.
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Insanity should be eliminated as a separate defense, but that the effects of mental disorder should still carry significant moral weight. More specifically, mental illness should be relevant in assessing culpability only as warranted by general criminal law doctrines concerning mens rea, self-defense and duress.
Acceptance of blameworthiness as the touchstone of the criminal law means that individual culpability must be assessed. That is where the kind of inquiry the insanity defense mandates comes into play. It is meant to help us decide whom among those who commit criminal acts deserve to be the subject of criminal punishment.10
The central assertion of this article, however, is that the insanity defense does not adequatelycarryoutthisdefinitionaltask. Atleastinitsmodernguises,theinsanitydefenseis overbroad. Instead, mental disorder should be relevant to criminal culpability only if it supports an excusing condition that, under the subjective approach to criminal liability increasingly accepted today, would be available to a person who is not mentally ill. The three most prominent such conditions would be: (1) a mistaken belief about circumstances that, had they occurred as the person believed, would amount to a legal justification; (2) a mistaken belief that conditions exist that amount to legally-recognized duress; and (3) the absence of intent to commit crime (i.e., the lack of mens rea defined subjectively, in terms of what the defendant actually knew or was aware of).
Before justifying this position, some examples of how it would apply in well-known actual and hypothetical cases should be provided. Take first the famous M'Naghten case, from whence much of current insanity defense jurisprudence derives.11 In 1841, Daniel M'Naghten killed the secretary of Prime Minister Peel, apparently believing the secretary was Peel and that killing Peel would bring an end to a campaign of harassment against him.12 He was found insane by the trial court judges. Whether M'Naghten would have been acquitted under the proposed approach would depend upon whether he believed the harassment would soon lead to his death or serious bodily harm and whether he thought there was any other way to prevent that occurrence. Because in his paranoid state he feared he would be assassinated by his enemies and had on several occasions unsuccessfully applied to the police for protection,13 he may have had such a defense. If, on the other hand, the circumstances in which he thought he was involved would not amount to self- defense, no acquittal would result14 (although a conviction of manslaughter rather than murder might have been appropriate, analogous to the result under the modern theory of “imperfect” self- defense as it has developed in connection with provocation doctrine).
Now consider the case of John Hinckley, who convinced a jury he was insane when he tried to kill President Reagan.15 If, as even his defense attorneys asserted, John Hinckley shot President Reagan simply because he believed Reagan's death would somehow unite him with
actress Jodi Foster,16 he would be convicted under the proposed approach. Regardless of how psychotic Hinckley may have been at the time of the offense, he would not have an excuse under the proposed regime, because killing someone to consummate a love affair is never justified, nor is it deserving even of a reduction in charge.
Two other recent cases furnish additional exemplars. Jeffrey Dahmer killed and cannibalized thirteen individuals. The jury was right to convict him.17 As sick as his actions were, even he never thought they were justified, and he would not be excused under the proposal. Lorena Bobbitt, who cut off her husband's penis because he repeatedly beat her, was found insane.18 Whether she would have a complete defense under the proposal would depend, as it would with Daniel M'Naghten, on the extent to which she thought she had other ways of forestalling the beating and whether the option she chose was disproportionate to that threat. On the facts presented at trial,19 even on her own account her act would probably not be considered necessary by the factfinder, and she would therefore have been convicted of some version of assault.
In these cases, then, whether a defense existed under the proposed approach would depend upon self-defense principles, applied to the circumstances as the defendant believed them to be. Another variety of cases can be analyzed in terms of a similarly subjectified version of
duress, which traditionally has excused crimes that are coerced by serious threats to harm the perpetrator. For instance, some people with mental illness who commit crime claim they were commanded by God to do so.20 If the perceived consequences of disobeying the deity were lethal or similarly significant, such a person would deserve acquittal, perhaps even if the crime charged is homicide. On the other hand, contrary to Justice Cardozo's famous hypothetical suggestion,21 the mere fact that the defendant honestly believed God ordained a crime would not automatically be an excuse.22
The third type of excuse that might apply when people with mental illness commit crime-- lack of mens rea–is extremely rare. M'Naghten, Hinckley, Dahmer, Bobbitt and Cardozo's hypothetical defendant all intended to carry out their criminal acts. Indeed, most crimes in which mental illness plays a role are intentional; the person who is so disordered that he cannot form intent is often also so disorganized behaviorally that he is unlikely to be able to carry out a criminal act. Nonetheless, when mens rea is defined subjectively, there are at least four possible lack-of-mens rea scenarios: involuntary action, mistake as to results, mistake as to circumstances, and ignorance of the law.23
First, a person may engage in motor activity without intending it to occur (e.g., a reflex action which results in a gun firing and killing someone). The criminal law typically classifies such events as involuntary acts.24 Although mental disorder usually does not eliminate conscious control over bodily movements associated with crime, when it does (e.g., in connection with
epileptic seizures), a defense would exist if one accepts the premise that culpability requires actual intent.25
Second, a person may intentionally engage in conduct but intend a different result than that which occurs (such as when firing a gun at a tree kills a person due to a ricochet). Distortions of perception caused by mental illness might occasionally lead to such accidental consequences; for instance, a mentally ill person driving a car may accidentally hit someone because his “voices” and hallucinations prevent him from perceiving the relevant sounds and visual cues. In such situations a subjectively defined mens rea doctrine would absolve him of criminal liability for any harm caused.
Closely related is the situation in which a person intentionally engages in conduct and intends the physical result that occurs, but is under a misapprehension as to the attendant circumstances (such as when a person intentionally shoots a gun at what he thinks is a dummy but which in fact is a real person). Of the various mens rea defenses, mental illness is most likely to play a role here (in what has sometimes been labeled the “mistake of fact” defense). For instance, a person who believes he is shooting the devil when in fact he is killing a person26 or a person who exerts control over property he delusionally believes to be his27 would be acquitted of homicide and theft, respectively, if mens rea is subjectively defined. Another, more subtle example of this type of mens rea defense is most likely to arise in connection with a person who is mentally retarded rather than mentally ill. Like a young child, such a person may kill not realizing that a life has been ended, because of an incomplete conception of what life is; for instance, the offender may believe the victim will rejuvenate like a cartoon character.28 Mens rea, subjectively
defined, would be absent in such a case because murder requires not only an intentional killing, but also that the offender understands that the victim is a human being who is capable of dying.29
Finally, a person may intentionally engage in conduct and intend the result, under no misapprehension as to the attendant circumstances, but still not intend to commit a crime because of an inadequate understanding of what crime is. There are actually two versions of this type of mens rea requirement. First, the person may not be aware of the concept of crime (as might be true of a three year-old). Second, the person may understand that criminal prohibitions exist but believe that his specific act is legally permissible (such as might occur when a person from a different country commits an act that would be perfectly legal in his culture, although illegal in ours). The first situation might be called “general” ignorance of the law, while the second might be called “specific” ignorance of the law. Outside of the insanity and infancy contexts, neither type of ignorance has been recognized as an excuse for mala in se crimes.30 However, for reasons discussed in more detail later in this article,31 a subjectively defined mens rea doctrine should excuse at least general ignorance of the law, whether or not it is due to mental disability, a position which would excuse those rare individuals who intentionally carry out criminal acts without understanding the concept of good and evil.
In short, the proposal would treat people with mental disorder no differently from people who are not mentally ill, assuming (and this is admittedly a big assumption) a modern criminal justice system that adopts a subjective approach to culpability.