Moral Justification Beliefs

The preceding section left one case open under the wrongfulness prong: a defendant who knows the law forbids the act but, because of a mental disease, believes it morally right. The best-known version is the defendant who believes God commanded the killing. Whether that belief helps depends on what the word "wrong" means, and the original M'Naghten answers do not settle the matter. The judges spoke of an accused who acted contrary to the law of the land, and also of one who was conscious that the act was one he ought not to do.¹ A purely legal reading would leave this defendant with no claim, since he knows the act is illegal, while a moral reading gives his belief a role to play.²

The choice between the readings matters because the considerations on each side pull in opposite directions. A moral reading widens the defense, and its critics object that it invites jurors to excuse defendants whose moral views they happen to share, and that it exempts people the threat of punishment could have deterred.³ A purely legal reading shrinks the defense in a different way, because mental disease can destroy a person's ability to tell moral right from moral wrong while leaving intact a bare awareness that the act is against the law.⁴ The purpose of the prong supplies the working standard for sorting these cases. It reaches the defendant who cannot appreciate that the conduct is condemned, and it leaves a defendant who understands the condemnation and rejects it within the reach of the criminal law.

The three subsections below take up the problem in that order. The first sets out the two readings of "wrong" and the state of the authorities on each. The second teaches the rule that a defendant's personal moral conviction is not enough, because the question is whether the defendant retained the capacity to recognize society's view of the act. The third turns to the hardest application, the defendant who believes God ordered the act, where jurisdictions divide. The first step is therefore the meaning of the word itself.

Legal Versus Moral Wrong

The wrongfulness prong asks whether a defect of reason caused by disease of the mind left the defendant unable to know that the very act he committed was wrong.⁵ The word “wrong” can mean contrary to the criminal law or contrary to morality, and the M'Naghten judges' own language does not say which they meant.⁶ In most cases the choice changes nothing, because the acts that give rise to insanity pleas are almost always both illegal and morally condemned, so a defendant who recognized one kind of wrong recognized the other.⁷ The reading matters only where law and morality come apart. The rest of this section identifies those situations, sets out what the authorities say about each, and explains why the dispute persists.

The judges' answers pull in both directions. Asked about a person with a partial delusion who knew he was acting contrary to law, they said he is punishable, and they explained that by “law” they meant the law of the land.⁸ Answering the next two questions together, they said the jury should be asked whether the accused knew he was doing wrong in respect to the very act charged, and they declined to confine that question to the law alone.⁹ Their reason was practical. A question about knowledge of the law of the land might lead jurors to think the prosecution must prove the accused actually knew the law, when the law proceeds on the principle that everyone is conclusively taken to know it.¹⁰ So they framed the test around an accused who was conscious that the act was one he ought not to do and that was at the same time contrary to the law of the land.¹¹ The first answer reads naturally as a legal standard and the formula that followed reads naturally as a moral one, which is why one set of answers supports both readings.

One way to harmonize the two answers comes from People v. Schmidt, where Judge Cardozo read the first answer as limited to a person who is sane apart from a partial delusion that the act will redress a grievance or serve some public benefit.¹² That defendant's delusion is consistent with knowing the act is morally wrong, so proof that he knew it was illegal adequately shows he could tell wrong from right. A delusion that God has commanded the act is different, because it clouds moral distinctions in a way the grievance delusion does not, and the first answer was never addressed to it.¹³ A Colorado decision construing a statute built on the same right-wrong test adopted the moral reading for this reason: mental disease can destroy the capacity to tell moral right from moral wrong while leaving intact a bare awareness that the act is against the law, so a purely legal reading would strip the defense of much of its psychological content.¹⁴ That reasoning persuades in the jurisdictions that adopt it but binds no other, as the state of the authorities shows.

Across the American states the question has not been clearly resolved. England now reads the test to require knowledge that the act was legally wrong, but in this country the issue has seldom been litigated, and the wrongfulness prong is usually given to the jury without explanation.¹⁵ The few courts that have addressed it divide: some require that the defendant not have known the act was legally wrong, others read “wrong” as morally wrong, and still others speak of an act that is wrong and punishable without saying whether the moral or the legal side is meant.¹⁶ An answer about a particular jurisdiction therefore depends on that jurisdiction's stated rule, and where the stem is silent the sound course is to present both readings rather than to announce one as settled.

Two situations test the difference, and only one of them is contested. In the first, the defendant knew the act was morally wrong but did not know it was illegal. He gets no help on either reading, because under a moral reading he knew the act was wrong, and under a legal reading the presumption that everyone knows the law supplies the knowledge he lacked.¹⁷ The judges rested the point on that presumption, since the law is administered on the principle that everyone is conclusively taken to know it, so proof that the accused actually knew it is unnecessary.¹⁸ The trap on an exam is to treat ignorance that the act was illegal as the gap in knowledge this prong protects, when the prong protects only the inability to know the act was wrong.

The contested situation is the reverse: the defendant knows the act is illegal but, because of an insane delusion, believes it morally right. The classic illustration has A kill B, knowing that he is killing B and that it is illegal, under an insane delusion that God has commanded the killing and that the salvation of the human race will follow. A's act is a crime if “wrong” means illegal and is not a crime if “wrong” means morally wrong.¹⁹ Cardozo built the same example in Schmidt around a devoted mother who knows the law condemns killing her child but is inspired by a delusion that God has ordained the sacrifice. He reasoned that a legal reading would require a jury to hold her responsible, and the New York Court of Appeals accordingly treated the trial court's instruction as error.²⁰ The same contrast appears for a defendant who knows the act is illegal but believes, because of mental illness, that society would morally condone it: he is found insane in a moral-wrong jurisdiction and held responsible in a legal-wrong jurisdiction.²¹

Dunn's delusion is the kind the judges' first answer addressed, a belief that the killing will revenge a supposed grievance, and it leaves the moral recognition intact, which is why Dunn's result does not change with the reading.²² Reyes's result does change, and the dispute over that change rests on competing views of whom punishment can reach. Defenders of the moral reading argue that a person who believes his act is morally right is substantially undeterrable, since the conscience that ordinarily reinforces the law has been turned against it by his illness. Defenders of the legal reading answer that a person who knows he is breaking the law and is not restrained by the immorality of the act is exactly the person for whom the threat of punishment is the only restraint, so excusing him would leave the criminal law without a hold on those it most needs to deter.²³ The moral reading carries a second cost, because it hands jurors a standard of right and wrong that invites them to excuse defendants whose moral views they share, the objection known as jury nullification.²⁴ The legal reading carries its own cost, because the defendants it excludes include those whose disease destroyed their moral judgment and left only a sterile awareness of illegality.²⁵ How far the moral reading actually widens the defense depends on whose morality counts. If society's judgment controls, it will usually match the legal standard and the reading broadens the test only slightly, and that question is the subject of the next subsection.²⁶

Exam Analysis Steps

Because the choice of reading matters only when law and morality diverge, the efficient way to handle a stem is to test for divergence before arguing about which reading applies. The steps are these:

Check the nature-and-quality prong first, because a defendant who did not understand what he was physically doing cannot know the act was wrong under either reading.²⁷
Ask whether the defendant knew the act was morally wrong but did not know it was illegal, and if so conclude that the defense fails, because knowledge of the law is presumed.
Ask whether the defendant knew the act was illegal but, because of the disease, believed it morally right, as with a belief that God commanded it, and if not, recognize that both readings give the same result on this prong.
If the defendant did hold that belief, state that the result turns on the reading, so that the defense fails if “wrong” means legally wrong and succeeds if it means morally wrong, and apply the jurisdiction's choice or present both when the stem is silent.

Society's Standard Controls

Once “wrong” is read as moral wrong, a further question remains about whose morality supplies the measure. The defendant's own conviction is one candidate, and the defendant's awareness of how society regards the act is the other. The governing answer favors the second: a defendant does not qualify for acquittal under M'Naghten merely because he believes his conduct is morally right, and he must also have lost the capacity to recognize that society regards his conduct as wrong.²⁹ That formulation makes the prong turn on capacity, which fits the rest of the test, because every part of M'Naghten asks what the disease took away from the defendant's understanding. A defendant who knows that society condemns the act and rejects that condemnation has lost nothing of the kind. His dissent shows that he perceives the judgment he dissents from, so the cognitive deficit the defense exists to excuse is absent.

The rule rejects a personal moral standard for two reasons that operate independently. The first concerns who decides. If the defendant's private morality were the measure, the jury would have to judge whether that morality was sound enough to excuse him, jurors who share the conviction would acquit while others convict, and the verdict would track sympathy with the defendant's values rather than his mental condition. That is the objection usually called jury nullification.³⁰ The second reason concerns deterrence. Punishment works on people who can understand what the law commands and weigh the cost of disobeying, and a defendant who knows both that the act is illegal and that society condemns it is exactly such a person, however sincerely he thinks the condemnation mistaken. A personal standard would free the mercy-killer and the political assassin, both of whom can be deterred, and that conflicts with the principle that criminal sanctions are proper for all who might be deterred.³¹

Hypothetical Illustration

Marsh and Pruitt each suffer from a mental disease, and each kills another person in a jurisdiction that reads “wrong” as moral wrong. Marsh kills his terminally ill brother out of a sincere conviction that mercy-killing is right. He knows the law forbids it and knows that most people regard it as wrong, and he thinks they are mistaken. Pruitt's disease has so distorted her perception that she believes everyone around her, neighbors and town alike, shares and applauds her purpose, and she cannot grasp that anyone regards the act as wrong. Marsh is not acquitted, because his capacity to recognize society's view is intact and his conviction is a rejection of that view. Pruitt satisfies the wrongfulness prong, because that capacity is gone. The one variable separating them is whether each could still perceive society's judgment of the act.

Courts that have confronted the choice between a personal and a societal standard lean toward society's. A Connecticut decision construing a statute modeled on the Model Penal Code held that a defendant who appreciates both the illegality and the societal immorality of his act is not relieved of responsibility by a purely personal moral code, even a delusional one. The same decision held that a defendant may qualify by proving that mental disease caused him to misperceive reality substantially and to believe delusionally that society, under the circumstances as he honestly but mistakenly understood them, would not have condemned his act.³² That reasoning drew on the large majority of other jurisdictions that have chosen a societal rather than a personal standard, mostly in the setting of M'Naghten itself.³³ Another court construing a statutory right-and-wrong test reached the same place from the nature of the concepts, reasoning that right and wrong are ethical ideas whose primary source is society's existing moral standards as distinguished from the written law, and that a person should not be treated as insane merely because his personal views of right and wrong differ from those the law expresses.³⁴ Marsh and Pruitt fall on opposite sides of that line, and the trap on an exam stem is to treat a sincere belief that the act was right as proof that the defendant lost the capacity to perceive society's view.

The same line separates two kinds of defendant who each act on a belief that departs from ordinary morality. A defendant whose command hallucinations tell him the victim is about to kill him believes, falsely, that he is killing in self-defense, and that is a delusion about facts governed by the rules on insane delusions.³⁵ A defendant whose illness gives him an idiosyncratic view of right and wrong, so that he knows the conduct is against the law but acts from commitment to a “higher” law, stands on the other side, and courts almost universally reject insanity claims in that situation.³⁶ The defendant who believes that God commanded the act raises the hardest version of the question, because jurisdictions divide over whether such a belief shows a lost capacity to perceive society's condemnation, and the next subsection takes it up.

Adopting society's standard also has a modest practical effect. Society's moral judgment will usually be identical to the legal standard, because the conduct that gives rise to insanity pleas is almost always both illegal and morally condemned, so reading “wrong” as moral wrong broadens the test only slightly when moral wrong is measured objectively.³⁷ The practical difference between the legal and moral readings therefore shrinks to a narrow band of defendants who know the act is illegal but whose disease has cut them off from the shared understanding that society condemns it. An exam answer should look for that band and should not find it in a defendant who merely holds an unusual moral view.

Deific Decree Delusions

The capacity reading of society's standard meets its hardest test in the defendant who believes that God commanded the act. A deific decree is a command the defendant sincerely believes comes from God, and a defendant who truly believes he is being commanded by God to commit an offense is treated as acting under one.³⁹ Whether that belief supports an insanity acquittal is a question on which jurisdictions divide: not all of them recognize a deific-decree defense, and almost all of those that do are M'Naghten jurisdictions.⁴⁰ The defense therefore grows out of the cognitive test itself, and it is a local rule that a student must verify against the jurisdiction in the stem instead of assuming it.

This defendant is hard to place because every ordinary route to the wrongfulness prong is closed to him. He knows what he is physically doing, so the nature-and-quality prong gives him nothing, and he knows the act is illegal, so a legal reading of “wrong” gives him nothing either. Only a moral reading can help. That is why the classic illustration of the dispute is a killer who knows that killing is illegal but acts under an insane delusion that God has commanded it: his act is a crime if “wrong” means illegal and is not a crime if “wrong” means morally wrong.⁴¹ In People v. Schmidt, Cardozo explained why this delusion differs in kind from other insane motives.⁴² A delusion that the act will redress a grievance or benefit the public is consistent with knowing the act is morally wrong, so moral recognition survives it, while a delusion that God has issued a command is inconsistent with that knowledge and obscures moral distinctions themselves.⁴³ On that reasoning, a legal-wrong reading strips insanity of much of its psychological content, because a disease can destroy the ability to tell moral right from moral wrong while leaving a sterile awareness that the act is against the law.⁴⁴ The New Jersey decision in Worlock and the Washington decision in Crenshaw acknowledge the same divergence, recognizing that the difference between legal and moral wrong may be critical when a defendant knowingly kills in obedience to a command from God.⁴⁵

This fits the rule of the previous subsection once the question is framed as capacity. A defendant who knows that society condemns the act and rejects that condemnation has lost nothing, because his dissent presupposes that he perceives the judgment he opposes.⁴⁶ A deific-decree claim that succeeds rests on a different fact: the delusion has displaced the defendant's own moral judgment, so that he cannot recognize the act as wrong at all.⁴⁷ The words “God commanded it” therefore do no work by themselves, and what matters is what the belief did to the defendant's ability to see the act as wrong. Formulations vary by jurisdiction. The Washington decision, for example, speaks of a defendant whose free will has been subsumed by belief in a deific decree even though she knows that law and society condemn the act, so an answer should track the jurisdiction's own language whenever the stem supplies it.⁴⁸

Hypothetical Illustration

Okafor and Lindqvist each suffer from a mental disease, each knows that killing is illegal, and each kills a neighbor, saying that God commanded it. Okafor's illness has produced a delusion so complete that he cannot see the killing as wrong in any sense, because the command has taken the place of his moral judgment. Lindqvist is certain the command was real, but she also knows that the law and ordinary people condemn what she did and understands that they see it as wrong; she simply believes they are mistaken. In a jurisdiction that recognizes a deific-decree defense, Okafor may satisfy the wrongfulness prong, and Lindqvist is held responsible, because her capacity to recognize society's judgment is intact. In a jurisdiction that reads “wrong” as legal wrong and does not recognize the defense, both are held responsible, since each knew the act was illegal. The variable separating the first two outcomes is what the belief did to the defendant's capacity to recognize wrongfulness, and the variable separating the third is the jurisdiction's choice.

The reason jurisdictions divide is that the defense sits where two purposes of the criminal law pull apart. Supporters argue that a person who truly believes God commanded the act is substantially undeterrable, since the threat of punishment works by adding a cost to a choice the actor sees as wrong, and this defendant sees the choice as a duty.⁴⁹ Opponents answer that a person who knows he is about to violate the law and is not held back by the immorality of the act is the person for whom the criminal law must work if it is to deter at all, so excusing him leaves the law without a hold on the people it most needs to restrain.⁵⁰ Behind the deterrence argument lies a question about blame. A defender of the cognitive test treats someone who knows his conduct is wrong and does it anyway as at least somewhat blameworthy, and someone who does not know it as not blameworthy at all, and the deific-decree defense claims that the defendant belongs in the second group.⁵¹ The disagreement turns on whether the law's task here is to deter or to blame, and an exam answer should present both positions when the stem does not say which the jurisdiction follows.

A stem in which a defendant hears God order a killing usually serves two doctrines at once. Under M'Naghten the question remains whether the disease left him unable to know the act was wrong, and the answer depends on the jurisdiction's reading of “wrong” and on whether it recognizes a deific decree. If the facts instead show that the defendant understood the act was wrong but felt powerless to stop, the claim sounds in loss of control, which the traditional test disregards and which only the irresistible-impulse supplement addresses.⁵² Students lose this issue when they treat a defendant's report that God commanded the act as proof of insanity without asking what the belief did to his capacity to recognize wrongfulness. The next section takes up the control question directly.

Exam Analysis Steps

Because the outcome depends on the jurisdiction first and on the defendant's capacity second, the efficient way to handle a God-commanded-killing stem is to settle the jurisdictional question before asking about the defendant's mind. The steps are these:

Determine whether the stem tells you how the jurisdiction reads “wrong” and whether it recognizes a deific decree, and if it reads “wrong” as legal wrong, conclude that a defendant who knew the act was illegal fails.⁵³
Confirm that the belief in a divine command is a delusion produced by mental disease, and that it is not simply the defendant's personal moral code.
Ask whether the delusion left the defendant unable to recognize that the act was wrong, and if he knew that society and the law condemn it and understood that others see it as wrong, conclude that the prong is not met.⁵⁴
If the delusion removed that capacity and the jurisdiction recognizes a deific decree, conclude that the wrongfulness prong is met, and if the stem is silent on the jurisdiction, present the split and the arguments on each side.