The Twinkie Defense Lives!

Assemblywoman Mary Hayashi, D-Hayward was sentenced to probation after pleading guilty to shoplifting in the Stockton Street San Francisco Neiman Marcus department store. She "pleaded no contest Friday to a misdemeanor charge and her attorney said a benign brain tumor might have led to the incident" (link above).

Defense attorneys never cease to amaze me by creatively finding ways to avoid culpibility. A brain tumor that destroyed part of the frontal cortex (as in the famous and partially mythical case of Phineas Gage) might increase impulsivity. However, if Hayashi had a tumor anywhere else her tendency for kleptomania would be unlikely. Counsel stated that the tumor had been successfully treated. It's size has been diminished, and so, according to Hayashi's counsel, her propensity to take things without paying for them has also shrunk--a happy ending.

Less happy was Dan White's murder of San Francisco mayor George Moscone and gay activist Harvey Milk in 1978. White was convicted of the lesser charge of involuntary manslaughter rather than first degree murder. Wikipedia recounts:

White's defense team claimed that he was depressed, evidenced by, among other things, his eating of unhealthy foods (inaccurate media reports that White's defense had presented junk food consumption as the cause of his mental state, rather than a symptom of it, would give rise to the legal term "Twinkie defense"). The defense argued that White's depression led to a state of mental diminished capacity, leaving him unable to have formed the premeditation necessary to commit first-degree murder. The jury accepted these arguments, and White was found guilty of the lesser crime of voluntary manslaughter.

The Hayashi and White cases have much in common. Neither suspect is "all there," either due to a brain tumor or depression. Thus it was not a premeditated crime.  Do not misunderstand me. An insanity defense is a necessary component in a just society . Daniel N. Robinson writes in The Great Ideas of Psychology (The Teaching Company) that  there "is no time in the recorded history of Western jurisprudence when there has not been an insanity defense. You will find it as early as the homicide laws of Draco in the ancient Greek world." More importantly in the development of English and American law, the Romans regarded a defendant as insane if he acted like a wild beast, "beyond the reach of reason." What "criteria have to be satisfied to qualify one as insane"? These "criteria have had a quite shifting history" (Robinson).

The shift has gone too far against the idea of personal responsibility. Today, depression, schizophrenia and other psychiatric ailments, brain tumors, child and spousal abuse, and systemic racism are used by defense attorneys in the courtroom, all with the expressed purpose of demonstrating either diminished capacity or justifiable reason for committing the crime. It is time to shift closer to the Roman ideal. We have seen some shift after the 1982 Hinkley case (trying the would-be assassin of President Reagan).

Two-thirds of the states that recognize the insanity defense now place upon the defendant the burden of persuading the jury that he or she was insane at the time of the offense, usually requiring proof by a preponderance of the evidence. A federal statute holds the defendant to an even higher standard, requiring proof of insanity by clear and convincing evidence (link here).

Punishments for Convicted Rioters

Last week's New York Times followed up the British rioting with an article, Britain Will Force Convicted Rioters to Clean Up. Link to the article here. The Times, using media and Labor, Liberal Democrats, and Conservative Party officials as sources, portrayed British society, especially the government, as unbalanced and agitated by the property damage, looting, and violence that occurred earlier this month. The Times stated that London police, reading rioters' social media posts, carefully guarded the 2012 Olympic Village and "higher-end shopping malls,"  The Times gives no proof but insinuated that Scotland Yard was less zealous in protecting life and property in sites that lacked landmark status or high economic value.

Did the police assess the political and economic value of sites before protecting them? If true (and only if true), the people should vote for candidates that would change that policy. I believe the police must anticipate where the rioters will be and protect that area, regardless of the exclusivity of the neighborhood.

The Times  also gave examples of miscarriage of justice--young people thrown in jail for looting items worth only a few dollars or inciting others to riot. The Times article does not state whether the opposite took place--other rioters getting a slap on the wrist for more serious crimes. The Times also did not give statistics stating the percentage of criminals that were justly punished. I will assume that the British justice system, as a whole, did execute justice swiftly and properly.

Lastly, The Times quoted critics that complained about a double standard. White collar criminals in the financial crisis were not punished as harshly as the rioters. This issue too needs to be explored further. Did the courts go easy on the bankers because they were upper-middle class or because the penal code mandates harsher punishment for mayhem and violence?

Postscript: I recommend Jonathan Sach's post here. He says that a breakdown of the social order was the cause, and a rejuvenation of religious institutions, as occurred early in the 19th century in both Britain and America,  can solve the problem. Berel Wein writes in his newsletter (September, 2011) that the Israelis are frustrated by the failures of liberalism and socialism and never-ceasing hostility of much of the world.