Texas, the Law, and the "Lennie Standard"

The case of Moore v. Texas raises the question of whether the "Lennie Standard," named for and adopted from the character of Lennie in John Steinbeck's Of Mice and Men, is appropriate for determining whether an intellectual disabled defendant can appropriately be held responsible for his or her acts. More here in a discussion from On the Media, here from NPR, and here from the New York Times.

Ganz on Insanity and Responsibility in Dr. Jekyll and Mr. Hyde

Melissa J. Ganz, Marquette University Department of English, has published Carrying On Like a Madman: Insanity and Responsibility in Strange Case of Dr. Jekyll and Mr. Hyde at 70 Nineteenth Century Literature 363 (December 2015). Here is the abstract.

This essay reads Robert Louis Stevenson’s Strange Case of Dr. Jekyll and Mr. Hyde (1886) alongside medico-legal debates about the nature and scope of insanity, arguing that the novel seeks to shore up the idea of individual responsibility in Victorian society. The cognitive test of insanity that emerged from the M’Naghten case of 1843 deemed a person legally irresponsible for his acts if, due to a defect of reason resulting from mental disease, he was unable to perceive the nature and quality of his acts or to know that they were wrong. Alienists such as James Cowles Prichard and Henry Maudsley, however, argued that this test failed to acknowledge the existence of affective and volitional disorders such as moral and impulsive insanity. In their treatises, they urged judges to adopt a more permissive standard — an ‘‘irresistible impulse’’ test — that deemed accused criminals ‘‘mad’’ if they could not control their actions, even if they knew what they were doing was wrong. While the novel appears to be sympathetic to the position articulated by Prichard and Maudsley, I argue, it ultimately shows the dangers of broadening the definition of insanity. To recognize the idea of irresistible impulse as the basis of an insanity defense, Stevenson suggests, is to confound the distinctions between freedom and compulsion, deviance and disease. Contesting the use of emotional insanity to acquit educated professionals like Jekyll, Stevenson holds the doctor guilty of murder.

Download the article from SSRN at the link.

Edgar Allan Poe, Gothic Horror, and the Development of US Criminal Law

Laura I. Appleman, Willamette University College of Law, is publishing Gothic Stories, Mens Rea, and Nineteenth Century American Criminal Law in The Ashgate Research Companion to Law and Humanities In Nineteenth-Century America (Nan Goodman and Simon Stern eds., Ashgate Press, 2015)(forthcoming). Here is the abstract.

The early-to-mid nineteenth century was a turbulent period for the cities of an expanding America. Beginning in the 1830’s, it was a time of “epic homicidal riots,” which prompted the creation of the first urban police force. The rise of the police helped reduce the rates of homicide dramatically. Concomitant with the explosion of real-life murder and the rise of the first police force was also a particular renaissance moment for gothic storytelling, focusing in large part on the wily criminal and the deductive reasoning used by these early police to track, apprehend and convict these offenders. What influence did these tremendously popular stories have on the creation of 19th-century criminal law and the public’s understanding of the 19th-century criminal?

The most emblematic example of this fascination with American criminality, of course, was the writing of Edgar Allan Poe, whose Tales of the Grotesque and Arabesque was published in 1849. Close behind it in influence, however, was the gothic fiction of Washington Irving and short stories of Nathaniel Hawthorne, whose work beguiled a developing nation. These highly popular stories, steeped in mystery, psychology and potentially horrific crimes, were influential in the shaping of 19th-century criminal law and organized police forces, which rose hand in hand with the popular understanding of crime-solving.

There were many links between 19th-century gothic/criminal fiction and the intellectual development of 19th-century American criminal law. One example is the rise of new narrative techniques in 19th-century fiction in developing character studies, including third-person narrative forms, and the concomitant development of mens rea analysis (i.e., that liability for wrongdoing should not just be based on sheer “wickedness,” but on actual intent to commit a specific crime). As literary gothic fiction explored a new, more complex understanding of why a criminal defendant might act the way he did, this matched — and undoubtedly influenced — the way the legal understanding of mens rea became more refined, shifting from a simple finding of general wrongdoing to a more sophisticated, elemental approach. This book chapter explores the similarities and cross-pollination between the two.

Download the essay from SSRN at the link.

Calderon de la Barca's El Medico de su Honra, Reputation, and the Criminal Law

José Palacio González, Court of Justice of the European Union, has published El Médico de su Honra (The Doctor of his Own Honor) by Calderón de la Barca: The Honor as a Cause of Exemption of the Penal Responsibility in the Baroque Spain, in volume 4, no. 6 of Oñati Socio-Legal Series, Vol. 4, No. 6, 2014.

Here is the abstract. English Abstract: The notion of honor or reputation is at the very core of the Spanish theatre in the baroque period. This fact could not be correctly understood without taking into consideration the obsession about purity of blood, having got a relevant influence in the Spanish society daily life since the expulsion of the Jewish population and the taking over of Grenade in 1492, as well as the first rank role played by the clerical and political power against the reform movement into the Church. One additional element that should be included into this general frame of reference is the structural inability of the Spanish economy to take off, after the end of the middle-age, in a process leading to a beginning of industrial revolution, with the subsequent assumption of modern values that necessarily would come out of that process. The most telling example of the importance of the idea of honor in the Spanish baroque theatre is, with no doubt, The Doctor of his own honor (El medico de su honra), by Calderón de la Barca, which plot turns around the announced death of an innocent lady suspicioned of adultery, just because of an unhappy sets of events. In the play the jealousy is less determinant for the purpose of the plot that the need for the husband to eliminate any element of uncertainty, as far as his reputation is concerned. The King understands the husband’s motivation and forgives him. Such a conception of honor has left, till very recent times, a major mark in the evolution of the Spanish society, even at a legislative level.

Spanish Abstract: El concepto de honor o reputación es un elemento fundamental en el teatro barroco español. Este hecho no se puede entender correctamente sin tener en cuenta la obsesión por la pureza de sangre, concepto con una influencia relevante en la vida cotidiana de la sociedad española desde la expulsión de la población judía y la conquista de Granada en 1492, así como por el papel fundamental desempeñado por el poder clerical y político contra los movimientos de reforma en la Iglesia. Un elemento adicional que debe incluirse en este marco de referencia es la incapacidad estructural de la economía española para iniciar, al término de la Edad Media, un proceso capaz de establecer las bases de una revolución industrial, con la consiguiente asunción de los valores modernos que necesariamente traería consigo ese proceso. El ejemplo más elocuente de la importancia de la idea de honor en el teatro barroco español es, sin duda, la obra de Calderón de la Barca El médico de su honra, cuya trama gira en torno a la muerte anunciada de una dama sobre la que, a pesar de su inocencia, recae la sospecha de adulterio, únicamente por una serie de hechos desafortunados. En la trama general de la obra los celos juegan un papel menos determinante que la necesidad del marido de eliminar cualquier elemento de duda, en lo que respecta a su reputación. El rey entiende la motivación del marido y lo perdona. Semejante concepción del honor ha dejado, hasta tiempos muy recientes, una marca importante en la evolución de la sociedad española, incluso a nivel legislativo.

Download the article from SSRN at the link.