"Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation? - Richard Delgado
"Rotten Social Background":
Should the Criminal Law Recognize a
Defense of Severe Environmental Deprivation?

Richard Delgado



Judge Bazelon first raised the possibility that extreme poverty might give rise to an RSB defense in United States v. Alexander, [73] a 1973 opinion by the D.C. Circuit Court of Appeals. In Alexander, one of the defendants shot and killed a marine in a tavern after the marine called him a "black bastard."[74] The defense attempted to show that the youth's action stemmed from an irresistible impulse to shoot, which they, in turn, traced to an emotionally and economically deprived childhood in Watts, California. The defendant reported that when he was young, his father deserted the family and the boy grew up with little money or attention. He was subjected to racist treatment and learned to fear and hate white persons.[75]


A psychiatrist testified that the defendant suffered from impaired behavior controls rooted in his "rotten social background." [76] The psychiatrist refused to label the defendant insane, however.[77] The trial judge instructed the jury to disregard the testimony about the defendant's deprived background and to consider only whether or not his mental condition met the legal standard of insanity.[78] The jury found him sane and the defendant was sentenced to twenty years to life.[79]


The court of appeals affirmed.[80] In a lengthy, troubled opinion that concurred in part and dissented in part, Judge Bazelon laid out his early thoughts on the RSB defense. For Bazelon, the trial judge erred in instructing the jury to disregard the testimony about defendant's social and economic background. That testimony might well have persuaded the jury that the defendant's behavioral controls were so impaired as to require acquittal, even though that impairment might not render him clinically insane.[81] Apart from this, exposure to the testimony would benefit society. As a result of learning about the wretched conditions in which some of its members live, society would presumably decide to do something about them.[82]


Nevertheless, Bazelon was not prepared to abandon all the trappings of the "disease" model.[83] Among other things, that model provides a rationale for detaining dangerous persons following acquittal. Bazelon reviewed other possible dispositions for the RSB defendant-outright release, preventive detention, and psychological reprogramming-finding each unacceptable.[84] According to Bazelon, the ultimate solution to the problem of violent crime in our society is some form of income redistribution coupled with other social reform measures.[85] The current narrow insanity test conceals the need for such reform and thus should be broadened, [86] although disposition of offenders not "sick" in any classic sense remained a problem for Bazelon.


Judge Bazelon further developed his views on an RSB defense in his Hoover lecture [87] and in a reply article.[88] In his Hoover address, Bazelon declared that "law's aims must be achieved by a moral process cognizant of the realities of social injustice."[89] Persons must obey the law not out of fear, but because they personally believe its commands to be just.[90] Punishment is justified only when inflicted on persons whose actions are morally condemnable. [91] This, in turn, requires that society's conduct in relation to the defendant entitle it to sit in condemnation,[92] and that the defendant's mental, emotional, and behavioral controls were intact at the time of the crime.[93] Citing the example of the defendant in United States v. Alexander, Bazelon urged that when these two conditions are not met, society is not entitled to inflict punishment.[94]


In a response to Judge Bazelon [95] and a short rejoinder, [96] Professor Stephen Morse argued against Judge Bazelon's position. For Morse, all environments affect choice, making some choices easy and others hard.[97] Rarely, however, will environmental adversity completely eliminate a person's power of choice.[98] Poor persons are free to choose or not choose to commit crimes, and the criminal law may justifiably punish them when they give in to temptation and break the law.[99] Although he conceded a statistical correlation between poverty and crime, Morse denied that poverty causes crime. [100] He pointed out that some poor persons are law-abiding, while some wealthy persons break the law,[101] and that economic improvements often result in more, not less, crime.[102] Moreover, Bazelon's social-welfare suggestions would be impractical because there is not enough money to eradicate all poverty; giving money to the poor would entail higher taxation, thus endangering such goals as free accumulation and disposition of wealth; and though eradicating poverty may eliminate some crime, it is a wasteful way to do it.[103] Consequently, Bazelon's broadened inquiry into culpability could exonerate dangerous criminals without generating socially useful knowledge or experience. Indeed, Bazelon's defense skirts paternalism. When an individual has freely broken the law, respect for that individual's personhood demands punishment; any other treatment demeans the defendant, and treats him or her as something less than an autonomous individual.[104]


The Bazelon-Morse debate thus raises, but does not answer, a number of key questions concerning a "rotten social background" defense. Does economic and cultural disadvantage impair controls or otherwise cause crime, and if so, how? If severe impairment can be shown in a particular case, what effect should this have on criminal responsibility? What should be done with the successful RSB defendant? The remainder of this article explores these and related questions.




73. 471 F.2d 923, 957-65 (D.C. Cir. 1973) (Bazelon, C.J., dissenting).


74. Id. at 957 (Bazelon, C.J., concurring in part, dissenting in part).


75. Id. at 958-59.


76. Id. at 959.


77. Id. at 958.


78. Id. at 958-59.


79. Id. at 927.


80. Id. at 926.


81. Id. at 961.


82. Id. at 965. Some may contend that there are better forums for educating the public about the effect of RSB than the courtroom. Television, film, and newspapers reach a wider public. Moreover, the courts should be free to carry on judicial business, not public education. Nevertheless, a person deserves his or her day in court and with it the right to tell his or her story as he or she sees it. Educating the public is not the primary goal of an RSB defense, nor should it be. In the context of an actual trial, however, the lesson society learns and its determination to alter the social conditions which breed crime are uniquely and conspicuously urgent.


83. Id. at 961. The disease model palliates criminal responsibility when the defendant is sick, rather than bad or weak.


84. Id. at 962-63.


85. Id. at 965. This does not mean that an RSB defense is misplaced, that crime should not be treated as crime and eradicating poverty should be tackled politically. If poverty causes some to commit crimes, then whether they should be held accountable remains a question of justice regardless of whether eradicating poverty is politically the most effective way to eliminate crime.


86. Id.


87. David Bazelon, The Morality of the Criminal Law, 49 S. Cal. L. Rev. 385 (1976).


88. David Bazelon, The Morality of the Criminal Law: A Rejoinder to Professor Morse, 49 S. Cal. L. Rev. 1269 (1976).


89. See Bazelon, supra note 87, at 386.


90. Id. at 387.


91. Id. at 385.


92. Id.


93. Id. at 388, 392, 396.


94. Id. at 389.


95. Stephen Morse, The Twilight of Welfare Criminology: A Reply to Judge Bazelon, 49 S. Cal. L. Rev. 1247 (1976).


96. Stephen Morse, The Twilight of Welfare Ciminology: A Final Word, 49 S. Cal. L. Rev. 1275 (1976).


97. See Morse, supra note 95, at 1252.


98. Id. at 1249, 1251.


99. Id.


100. Id. at 1259.


101. Id. at 1259, 1261.


102. Id. at 1259.


103. Id. at 1263.


104. Id.