Diminished Capacity

Although no jurisdiction in the United States and English law contains a formal, generic partial excuse, the theoretical and moral case for such an excuse is strong. Indeed, the moral logic of the excuse is conceded by sentencing practices that reduce sentences because the offender suffered from substantial mental abnormality. Mental abnormality can substantially compromise rationality and responsibility among offenders who are not legally insane, including many who suffer from newly discovered syndromes, but such offenders now have only limited and often entirely discretionary means to make such claims. Consequently, many offenders may be blamed and punished more than they deserve. Creating a partial excuse would create many practical problems, including establishing the standard, insuring that the courts are not inundated with unmeritorious claims, and devising appropriate dispositions for offenders who are partially excused. But if the case for a partial excuse is sufficiently strong, as it seems to be, justice requires that our criminal law should try to develop such a formal doctrine and should not treat such questions in an unduly limited or discretionary manner.