MORAL JUDGMENT: Does the Abuse Excuse Threaten Our Legal System?<i> By James Q. Wilson</i> . <i> BasicBooks: 134 pp., $18</i>
In June 1994, the American Bar Assn. Journal accused me of coining the term “abuse excuse” to describe the sorts of defenses raised by admitted killers and maimers, such as the Menendez brothers, Lorena Bobbitt and Colin Ferguson. I plead guilty. Indeed, later that year, I wrote a book by that name (“The Abuse Excuse: And Other Cop-Outs, Sob Stories, and Evasions of Responsibility”), in which I argued that excuses, ranging from battered women syndrome to abused child syndrome to black rage, were being abused by so-called expert witnesses who employed pseudo-science to serve political agendas and to deny or mitigate personal responsibility. My central concern was that this abdication of responsibility threatened the foundations of our legal system. A national debate ensued in the media.
Imagine my feeling of deja vu when, having been asked to review James Q. Wilson’s 1997 book of lectures entitled “Moral Judgment: Does the Abuse Excuse Threaten Our Legal System?” I discovered that Wilson, a thoughtful conservative and sometime colleague at Harvard, was making essentially the same points I had made in my earlier book, though from a somewhat different ideological perspective. A critique of our criminal justice system originally made by a liberal was being co-opted by a conservative.
Both Wilson and I see the proliferation of the abuse excuse as a symptom of a broader societal problem. I worried that it reflected a growing “national abdication of personal responsibility.” He writes of “a decline in the willingness of citizens to assume and ascribe personal responsibility for their actions.” There are many other striking parallels between our books: We focus largely on the same cases, authorities and history. Anyone reading the two books in tandem will note the striking parallels in argumentation, illustration and even language.
These parallels raise an important issue of public policy: Are the differences between liberal and conservative critics of our criminal justice system really as marked as politicians make them appear? Wilson’s book suggests they are not. There is little, he says, with which most thoughtful liberals would not agree. We all seek to reduce crime, punish criminals, reinforce personal responsibility and preserve constitutional liberties. We may disagree over priorities and details, but not nearly as much as political liberal-bashers claim.
Even as to the specifics of reform, Wilson, the conservative, draws nearly the same conclusions from the abuse of excuses as Dershowitz, the liberal, does. Both call for constraints on expert witnesses, limitations on abuse-type defenses and more comprehensible jury instructions. For example, I criticize the current distinctions among degrees of murder as incomprehensible to jurors:
“These distinctions often make little sense, as for example the difference between first-degree murder, which generally requires ‘premeditation,’ second-degree murder, which generally requires ‘malice aforethought,’ and voluntary manslaughter, which often requires that the act be ‘intentional’ but ‘provoked.’ Jurors have understandable difficulties comprehending such terms and differentiating among them, thus encouraging lawyers to make emotional appeals such as those in the Menendez and Bobbitt cases.”
Wilson makes the same point in his book. “Simple terms would delete from the homicide law of California and some other states words and phrases that have survived, undefined and with growing confusion, since the nineteenth century: ‘malice,’ ‘express malice,’ ‘implied malice,’ ‘premeditation,’ or having an ‘abandoned and malignant heart’; and new terms that have been recently invented by the courts, such as ‘intoxication,’ ‘battered women’s syndrome,’ and ‘imperfect self-defense.’ ”
I argued the need for “our legal system to confront the issue of responsibility in a rationally calibrated manner” which rejects “ ‘simple either-or’ solutions.” Wilson makes the same point by using a different metaphor about the law’s refusal “to see the world in shades of gray,” insisting that it be defined “in black and white.”
These striking parallels between myself, the liberal, and Wilson, the conservative, also raise a prickly issue of interest primarily to academics: the propriety of writing a book in 1997 that so closely parallels a book written in 1994 with virtually no attribution or citation of the earlier work. Wilson does not acknowledge that I coined the term “abuse excuse,” which he uses in his subtitle. Perhaps he was unaware of that fact. He does mention my book, but only to say that I “compiled a list” of abuse excuses (actually, a glossary at the end of my book), which he claims is “exaggerated,” since “many of these excuses, defenses, and syndromes have not worked for the defendants who raised them.” Even that one citation is inaccurate, because he fails to advise his readers that I advised my readers that the list was of excuses “that have been raised or tried,” not that have succeeded. Indeed, I wrote that “on the surface, the abuse excuse affects only the few handfuls of defendants who raise it, and those who are most immediately affected by an acquittal or reduced charge. But at a deeper level, the abuse excuse is a symptom of general abdication of responsibility.” This is precisely the point that Wilson parrots.
Nor is mine a self-referential reading of Wilson’s theses. Here is how a conservative columnist, George F. Will, recently characterized it in a syndicated column which the Boston Globe headlined as “The Abuse Excuse”: “James Wilson [argues that the abuse excuse] threatens not only the legal system but society’s moral equilibrium and tranquillity. It undermines the concept of personal responsibility. And the legal system’s increasing susceptibility to ‘abuse excuse’ weakens the law’s character building capacity because it diminishes the law’s power to strengthen the individual’s often attenuated self-control. . . . Thus does doubt about the capacity of individuals to govern themselves erode society’s capacity for self-government.”
Compare this with the concluding paragraph of my book. “Today, many men and women seem unwilling to take responsibility for their actions. Excuses abound in every sphere of life from the most public to the most private. Evasions of responsibility breach the social contract and rend the very fabric of democracy. We must stop making excuses and start taking responsibility. What is at stake is far more than the punishment of criminals and the deterrence of crime. It is the very nature of our experiment with democracy.”
I am, of course, flattered that so distinguished an academic as James Q. Wilson has built on my earlier work. But doesn’t the public have the right to know which ideas in Wilson’s new book are original and which are built on the writing of others? The broad philosophical issues we both address--individual accountability, the general relationship between understanding and responsibility--have obviously been debated for centuries, but my book specifically applied these broad issues to the current concern about abuse excuses. That is precisely what Wilson does as well. Should a serious academic writing a short book whose central thesis so closely parallels that of another academic not explicitly acknowledge the parallelism? Should he implicitly take credit for ideas that others earlier articulated? Having acknowledged the prior work, he may then of course proceed to disagree with it, build on it or draw different conclusions from it.
With regard to the merits and demerits of “Moral Judgment,” Wilson is at his strongest when he deconstructs the sociopolitico and legal conclusions of “experts” and reveals their hidden agendas. His perceptive pragmatism shines through the garble of jargon. His powerful moral sense also illuminates the implications of our current drift toward blamelessness. He is at his weakest when he ventures beyond his considerable expertise as a social scientist and moral philosopher and enters into the rather technical domain of law. As do other neophytes, he believes that in criminal cases, “the chance of victory or appeal is great” and that appellate courts “routinely issue new instructions.” He proposes that the “appellate process ought to be more constrained” so that it “does not force all judges to worry that every evidentiary ruling they make will expose them to the possibilities of reversal.” Frequent appellate reversals in criminal cases may occur in the fantasy land of the conservative politician, but they are few and far between in the real world of lawyers. Most of the very few cases that are reversed are either retried or plea-bargained.
Wilson’s attempt to create law school hypotheticals also fails. In assessing the dangers of imperfect self-defense (an unreasonable but honest belief that one’s life is in imminent peril), Wilson creates the following hypothetical scenario:
“Had Erik and Lyle studied the law, they would have known what to do. First, get in a fight with their parents. The subject would not matter, as long as they were upset. Second, claim that the father advanced toward them, reaching for his pocket. Third, shoot their parents. Finally, plant a gun near the father. Under California law they would surely have been able to claim imperfect self-defense and would have had an excellent chance of being convicted of voluntary manslaughter and then enjoy the inheritance of several million dollars. Next time, some rich boy will do exactly this.”
Wilson has it all wrong. Under his scenario, there would be no need for a claim of imperfect self-defense; the facts, if believed, would give rise to perfect self-defense. So, unless Wilson wants to abolish the universal law of self-defense, the possibility of his hypothetical abuse will persist. Indeed, abuse of valid defenses is an ever-present danger, in the hands of an unscrupulous defendant who is prepared to commit perjury. Moreover, Wilson is almost certainly wrong when he suggests that children who are convicted of the voluntary manslaughter of their parents can inherit their money. Under California law, a person who feloniously and intentionally kills cannot inherit from his victim.
Beyond these criticisms and differences, the fundamental lesson to be learned from the congruence of conservative and liberal ideas about the abuse of excuses is that pragmatism is often more important than ideology in seeking to achieve the proper balance in our criminal justice system.