Abstract:
For too long, the criminal law has only provided legal protections at the guilt/innocence phase, namely, the phase at which a jury determines if a defendant is guilty of the crime for which the defendant is charged, or defendants who exist on the margins: namely, those who suffer from mental retardation, insanity, or are too young to appreciate the consequences of criminal conduct. In so doing, the criminal law has failed to address the gray area in which most defendants reside, and for which all defendants lack sufficient legal protections. The term gray area refers to all defendants who, although not considered legally insane or intellectually disabled under relevant legal standards, nonetheless suffer from significant cognitive or psychological impairments that render them less culpable for criminal conduct. For example, at the guilt/innocence phase of a criminal trial, the legal system offers few protections (if any) for defendants afflicted with mental illnesses, personality disorders, neurological impairments, or borderline intellectual functioning. This is fundamentally unjust, contrary to relevant empirical evidence regarding the effects of cognitive, psychiatric, and psychological disorders on culpability. Moreover, it results in profoundly unjust sentences that, in many cases, are entirely disproportionate to a defendant’s culpability. As such, the time has arrived for courts and legislators to recognize that defendants need not be profoundly mentally retarded, insane, or under the age of eighteen to trigger legal and constitutional protections at the guilt/innocence phase that account for a defendant’s reduced culpability or, in certain cases, a finding of zero culpability.
