Criminal culpability refers to the degree to which individuals are held legally responsible for their conduct and distinguishes between those who are wholly or partially blameworthy and those who are blameless. Criminal culpability is tied to the proportionality principle, which dictates that the harshness of a punishment be commensurate with the severity of the crime. Accordingly, punishment is doled out in consideration of the act the individual committed and the individual’s mental state at the time of the act. For example, regarding the former, individuals who kill someone are punished more severely than are individuals convicted of driving under the influence. Both acts are illegal, but one act (killing) is inherently more harmful than the other (driving while intoxicated). Regarding the latter, individuals who kill someone in a car accident while driving under the influence are punished less severely than those who kill their victims by lying in wait. The harm suffered is the same—someone died. However, the law holds the second individual, who killed purposefully and with malice, to be more culpable than the first individual, who killed accidentally. This article first reviews the legal facets of criminal culpability and then the role of mental health professionals in criminal culpability evaluations.
Legal Facets
Criminal offenses have two elements: the actus reus, literally translated from Latin as guilty act, and mens rea or guilty mind. To be held criminally culpable and found guilty of a crime, individuals must have committed actus reus voluntarily. In addition, with the exception of strict liability crimes (offenses punished regardless of the surrounding circumstances, such as speeding), to be found guilty, one must also evidence the mens rea. There are four types of mens rea or culpable mental states: (1) intentionally or purposefully, (2) knowingly, (3) recklessly, or (4) negligently.
Individuals act intentionally when they act with the conscious purpose of imposing a harm. For example, an individual commits first-degree murder when he purposefully lies in wait and kills another. An individual acts knowingly when he or she does not intend to impose a harm but is aware that harm is a probable result of his or her act. For example, an individual may be guilty of homicide if he or she burns down an apartment building to collect on an insurance policy and a tenant dies in the fire. While the purpose of setting the fire was obtaining money, the perpetrator acted knowing that anyone inside the building was likely to die as a result.
Individuals act recklessly when they disregard the substantial risk of harm that could result from their actions. That disregard reflects an awareness that the risk exists and represents a significant departure from the way that law-abiding citizens would act in similar circumstances. For example, one who unintentionally breaks another’s jaw after punching him may be guilty of aggravated assault because law-abiding citizens would refrain from such behavior due to the risk of serious injury involved. The case against the attacker is all the more compelling if he or she has training in boxing or martial arts and could even elevate his mens rea from recklessly to knowingly.
Individuals act negligently when they fail to perceive the harm that could stem from their actions. Such failure should reflect a substantial departure from the standard of care that reasonable people would observe in similar circumstances. For example, parents who do not know that leaving a baby in a car in summer can cause fatal heat stroke may be guilty of criminally negligent homicide if the baby dies in the car while the parents are in the grocery store. The parents acted negligently because, while their purpose was not to kill the baby and they did not realize the potential for the baby to die, they should have been aware of the risk.
Defenses
Criminal defendants can demonstrate they are not criminally culpable in two ways. First, defendants can utilize negation defenses that show the prosecution did not successfully prove all an offense’s elements. Negation defenses apply to both the actus reus and mens rea elements of a crime. For example, defendants can contend that they were not in control of their actions and therefore not acting voluntarily (e.g., an offense committed while sleepwalking); this is referred to as the automatism defense. Because an automatism defense challenges the actus reus element of a crime, it also applies to strict liability crimes. Similarly, defendants may argue that they did not have sufficient mens rea to be convicted. For example, an individual charged with homicide might argue that although he or she killed someone, he or she did not intend to kill. If the judge or jury agrees, he may instead be found guilty of manslaughter, a lesser offense that does not require a purposeful killing.
Second, defendants may assert affirmative defenses, indicating that they fulfilled a crime’s elements but should not be considered blameworthy due to the circumstances surrounding the offense. Affirmative defenses come in two types: justifications and excuses. In justification defenses, defendants try to show that given the circumstances surrounding the crime, they did not act in an undesirable manner. For example, an individual who injures someone in self-defense is not deemed culpable for his or her actions because society has an interest in allowing one to defend herself when he or she is threatened with harm. Other examples of justification defenses include necessity, defense of others, defense of property, and consent.
In contrast, excuse defenses recognize that individuals have acted undesirably but suggest there are circumstances surrounding the offense—or characteristics about the defendants—that render them less culpable. For example, an individual who commits a robbery under threat of being killed still acts voluntarily and purposefully but is deemed less culpable than a defendant who commits robberies without the threat of death. Additional examples of excuse defenses include infancy, provocation, and entrapment.
The Insanity Defense
Still under the broader category of excuse defenses, the insanity defense is likely the most well-known attempt to negate criminal culpability. Defendants asserting the insanity defense may acknowledge that they committed harmful and wrongful acts but argue they should be exculpated because they were unable to appreciate the nature or wrongfulness of their actions at the time the crime was committed due to active symptoms of serious mental illness or cognitive disability. This is referred to as the M’Naughten Standard, and— although not utilized in all jurisdictions—it is the most common standard in the United States. Under the M’Naughten Standard, a man might be found not guilty by reason of insanity (NGRI) of his wife’s murder if she was fatally shot while he was firing at the hallucination of a monster breaking into their home. In that instance, he did not appreciate the nature of his act. In a different example, a woman might be found NGRI for her poisoning of terminally ill hospital patients because she believed to be acting on commands from God. In that instance, she knew she was poisoning and killing people, but she did not believe the act to be wrong.
Diminished Capacity Defense
Another type of defense often involving mental health evidence is the diminished capacity defense. Diminished capacity is similar to a negation defense, whereby one argues that the defendant did not satisfy the crime’s requisite mens rea, but a diminished capacity defense relies on mental health evidence to support that claim. For example, in one tragic story, an intellectually disabled young man shot and killed his sister with what he had thought was a toy gun. In fact, it had been a real and loaded gun, only spray-painted bright gold. Although someone else might have appreciated the weight and feel to distinguish the weapon from a toy, evidence of his intellectually disability could persuade a jury he did not intentionally or knowingly shoot his sister; if the prosecution pursued charges with an intentional or knowing mens rea component, his intellectual disability could thus form the foundation of a diminished capacity defense.
Criminal Culpability and Forensic Mental Health Professionals (FMHPs)
Scholars have organized the roles of FMHPs into five broad categories, including basic scientist, applied scientist, policy evaluator, consultant, and forensic evaluator. A working knowledge of criminal culpability may be necessary for FMHPs in any one of these roles, whether it is coming to better understand the relationship between cognitive ability and mens rea, developing standardized tools to measure mental state at the time of the offense, providing expert witness testimony as a teaching expert, lobbying legislative bodies, authoring amicus curiae (Latin for friend of the court) briefs, or providing advice to one side in a criminal trial about how best to utilize or manage mental health evidence. However, it is the forensic evaluators who conduct mental state evaluations who most often interact with the issue of criminal culpability.
Mental State at the Time of the Offense
A forensic evaluator asked to do an insanity or a diminished capacity evaluation is not being asked to opine on a defendant’s criminal culpability; that is, a decision for the judge or jury. Rather, the evaluator is asked to provide an expert opinion on the defendant’s mental state at the time of the offense. With that evidence in hand, the judge or jury may then decide whether the elements of an NGRI defense have been met or whether the defendant indeed had diminished capacity. Because of this nuance, these types of evaluations are often referred to more broadly as mental state evaluations.
Mental state evaluations are past-focused, specific to the time of the crime in question, and attempt to uncover how the defendant was functioning at that time. In this way, they contrast sharply with competence evaluations, which are present-focused, and attempt to measure whether a defendant possesses a rational and factual understanding of the charges and can effectively work with defense counsel.
One of the challenges faced by the broader forensic mental health community is the reconciliation of mental health diagnoses with legal constructs, and this is present in mental state evaluations and testimony as well. Case in point: Insanity is a legal construct, not a mental health diagnosis. Thus, after adoption of the insanity defense, there followed an evolution of cases in which, somewhat through trial and error, the courts decided which mental health conditions were sufficiently debilitating to satisfy the mental illness or cognitive disability prong of the insanity defense. Today in the United States, all jurisdictions require a severe disorder at the time of offense, with psychotic disorders constituting the majority of successful NGRI defenses. Other disorders such as major depression, bipolar disorder, and post-traumatic stress disorder can also satisfy the mental illness prong, but they may require extra effort to show the condition as severe enough to make out the other prongs of the insanity defense (i.e., awareness of actions or awareness that actions were wrong).
In conducting a mental state at the time of the offense evaluation, many of the broader elements of forensic mental health assessment apply. Best practice guidelines recommend that referral questions should be clarified with the attorney or court, and it should be clear to all parties that the FMHP is an objective (i.e., not partisan) evaluator. Evaluators should engage in multimodal assessment, for example, by gathering data from clinical interview, through psychological testing or forensic assessment instruments specific to mental state, from collateral interviews with individuals who may have observed the accused’s behavior around the time of the alleged offense, or through review of medicolegal records, either historical or around the time in question. Reports should reflect a synthesis of obtained information and the FMHP’s impression, and testimony should reflect the content of the report.
There are also some elements of mental state evaluations that are unique and important for evaluators to be aware of. Most notably, interviewing the accused about his mentation and behavior at the time in question may uncover what amounts to incriminating evidence. While some procedural safeguards are in place—for example, the law may prevent use of the d efendant’s self-report by the prosecution to establish guilt— there are variations across jurisdictions. Failure to appreciate and be guided by the framework in place could end with the defendant worse off for having participated in the evaluation. Toward that end, and as always, it is important that FMHPs only participate in mental state evaluations if they are competent to do so, and if not they should seek supervision.
References:
- Heilbrun, K. (2001). Principles of forensic mental health assessment. New York, NY: Kluwer Academic/Plenum.
- Heilbrun, K., DeMatteo, D., Holiday, S. B., & LaDuke, C. (2014). Forensic mental health assessment: A casebook. New York, NY: Oxford University Press.
- Packer, I. K. (2009). Evaluation of criminal responsibility. New York, NY: Oxford University Press.