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Retroactively Dumping DimCap

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Can a state retroactively abolish a defense, even a "partial" defense such as diminished capacity?  If it is purely a legislative change, clearly not.  That is the heart of the constitutional prohibition of ex post facto laws.  A statute enacted after the crime that makes previously legal conduct criminal or increases the punishment of previously illegal conduct cannot be applied.

But how about a court's reinterpretation of a previously enacted statute?  Tougher question.  The Supreme Court has found a due process protection against court-made changes to substantive criminal law, but it is not exactly congruent with the ex post facto rule for statutes.

The Michigan Legislature passed a law in 1975.  Burt Lancaster [no, not that one] killed his wife in 1993.  The Michigan Supreme Court decided in 2001 that the 1975 law had abolished diminished capacity, a much-criticized doctrine under which a mental problem is claimed to negate the capacity to form a mental state such as "malice," typically reducing murder to manslaughter despite otherwise objective indicia of malice.  Lancaster's first conviction was overturned on habeas, and on retrial the trial court precluded the diminished capacity defense. 

The state court of appeals was okay with that.  Federal judges split 2-2, with two judges on the court of appeals panel saying the state court decision was both wrong and unreasonable.  The third member of the panel and the district judge disagreed.  Panel opinion is here.  Today, the Supreme Court took up the case as Metrish v. Lancaster, No.12-547.

Diminished capacity, BTW, is often known as the "twinkie defense."  The term comes from the notorious manslaughter verdict for Dan White, who killed San Francisco Mayor George Moscone and Supervisor Harvey Milk.  Twinkies were not actually part of the defense, but the term has stuck, and the low reputation of the defense is entirely justified.

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