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Landrigan Argument


   "... by the way, biological proclivity to violence is a mitigating factor rather than an aggravator factor?" -- Justice Scalia (38:9-11)

   The transcript of argument in Schriro v. Landrigan is available here. It's a rather confused argument, and Justice Kennedy notes early on (5:11-14) that he thinks the parties have been talking past each other. The most outrageous part of this case, from the prosecution viewpoint, is that the Ninth Circuit overruled a state court factual finding that the defendant had waived presentation of mitigating evidence. It did so based on its reading of the record, despite the fact that the contrary finding was made by the original trial judge. The defense today essentially conceded that was indefensible and now asks that the issue of whether there was an effective waiver be one of the issues to be considered in the district court on remand (pp. 34-36).

   The actual holding of the state trial judge in this case was that, “defendant instructed his attorney not to present any evidence at the sentencing hearing. . . . ” (emphasis in original). Even so, there was much discussion about whether defendant would have allowed other kinds of mitigation evidence that the lawyer could have but did not prepare to present. If seemingly unequivocal state court findings can be danced around so easily, why have state habeas proceedings at all?

   This one is difficult to assess from the argument. No predictions.

P.S. None of this mitigation argument would matter if we could just decide as a matter of law that a previous murder necessarily outweighs any mitigation. But the Supreme Court unwisely barred the states from doing that in Sumner v. Shuman, 483 U.S. 66 (1987).


I have yet to read the Schriro v. Landrigan briefs, but from what I can discern it sounds like there is a new wave of experts claiming that psychopathy is a mitigating defense. If so, this is rather interesting since in the 1890’s psychopathy was considered an exculpatory defense and psychopaths were routinely committed to state psychiatric hospitals. This coincided with the whole “moral psychiatry” movement back then which held that there were people who appeared “normal” but were incapable of moral decision making. However, within the past 40 years or so, psychopathy was been mainly an aggravating factor since the weight of evidence suggests that psychopaths can choose right from wrong and have very high rates of violent recidivism.

What’s more, there are several studies that have shown psychopaths do seem to have some brain abnormalities. However, biological abnormality does not automatically equate with the absence of free will. There are lots of law review papers out there claiming that free will does not exist because science is increasingly demonstrating that abnormal behaviors are associated with biological abnormalities. But of course, all behaviors are associated with biological processes and just because some behaviors are linked with biological abnormalities does not mean the abolition of free choice follows. This is biological reductionism without any common sense. We all have biological propensities and, I suspect if all of us were given an fMRI, brain abnormalities. The questions isn’t simply whether such abnormalities exist but whether they effect rational decision making. The law has a long history of excusing only those people with decision making so impaired by disease that holding them fully culpable would be an affront to justice. It’s hard to imagine how psychopaths would fit with that ideal.

Judge Chatigny (D. Conn.) has a similar view, i.e., that being a psychopath was a mitigating factor.

I wouldn't say "new." See Graham v. Collins, 506 U.S. 461, 500 (1993) (Thomas, J., concurring).

Kent: Do you know of other cases that suggest this?

Justice Thomas was not saying that psychopathy should be a mitigating circumstance. Quite the contrary. To illustrate how absurd the Lockett-Eddings-Penry rule had become in practice, he noted that the Court was getting petitions from murderers complaining that their jury instructions had not empowered their juries to give full effect to the "mitigating" circumstance of their psychopathy.

Lockett disenfranchised the people of the states of the power to decide on a statewide, uniform basis what is and is not mitigating. The defendant can put forward any circumstance he wants for the jury to consider. Mills further devolved the decision as to what is mitigating to the individual juror. The range of "mitigating" circumstances is now limited only by the lawyer's persuasiveness and the juror's gullibility.

Some jurisdictions require written findings on mitigating circumstances that give us an indication of what jurors are accepting. In the trial of Steven Oken, Maryland's poster boy for the death penalty, he proffered his sadism as a mitigating circumstance. At least one juror actually bought it.

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