MORAL JUDGMENT: Does the Abuse Excuse Threaten Our Legal System ?

#### MORAL JUDGMENT: Does the Abuse Excuse Threaten Our Legal System?

By James Q. Wilson. Basic Books. 134 pp. $18

To the question posed in its subtitle, this book offers a resounding "yes." In these 1996 Godkin Lectures delivered originally at Harvard University, Wilson, a professor of management and public policy at the University of California at Los Angeles, presents a scathing indictment of recent trends in criminal law. His special target is the elaboration of excuses, especially those based on alleged histories of abuse, as in the sensational trials of Erik and Lyle Menendez, who murdered their parents. Wilson also objects to expert testimony involving dubious socialscientific findings, such as the percentage of battered women who (in Wilson’s words) "become so utterly dependent on the abuser that they really believe there is no escape short of his death." Wilson finds these tendencies offensive because they undercut responsibility. Accused individuals are encouraged to avoid accountability; judges and lawyers evade responsibility for the integrity of legal judgment.

The linchpin of Wilson’s argument is the opposition between judgment and explanation. Judgment is stern and rule-bound, unblemished by passion or sentiment. Explanation, by contrast, evokes sympathy on the basis of the presumed causes of irresponsible or criminal behavior. This opposition makes sense, up to a point. In defining burglary, homicide, and other crimes, the law looks for reasonably clear-cut and objective criteria of guilt or responsibility, while trying to avoid issues of motivation, character, and circumstance.

But these devilments soon reappear: the insanity defense presumes that a person’s actions are explained by mental disease or defect; a plea of duress appeals to the ways in which a person’s will may be constrained; self-defense invokes an accepted motivation. The problem is not, as Wilson claims, that we confuse responsibility and causation. Rather, it is that legal sophistication requires us to discern and evaluate causes. Some causes mitigate culpability, as in the "abuse excuse" cited by Wilson. Others, such as drunk driving, aggravate it. Paradoxically, the search for greater precision in assessing degrees of blameworthiness can open the door to untested and imprecise theories. This has happened in the past, and it will continue to happen. Wilson tells us much about the bad results, but I wonder if he fully appreciates the virtues that produce the defects he decries.

—Philip Selznick