EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 18, 2013

Affluenza Season, Take 3: Affluenza, Diminished Capacity & the Twinkie Defense

Today, I wanted to finish up my affluenza troika by considering the possible parallels between affluenza and the diminished capacity defense. This post follows up on my prior two posts (here and here) about the case out of Texas in which 16 year-old Ethan Couch used evidence that he suffered from affluenza as mitigation evidence during sentencing to lessen his criminal penalty. The response to the case has been widespread, with sources generally questioning the existence of affluenza and/or whether it should apply at a criminal trial.

In many ways, the blowback has been similar to the reaction after Dan White successfully use the defense of diminished capacity at his trial for murdering Mayor George Moscone and Supervisor Harvey Milk. You might recall this as the famous "Twinkie defense" case.

Let's start with the defense of diminished capacity. At its broadest,

Diminished capacity is a defense when either specific intent or knowledge is an element of the crime charged. If specific intent or knowledge is an element, evidence of diminished capacity can then be considered in determining whether the defendant had the capacity to form the requisite mental state. State v. Thomas, 98 P.3d 1258, 1262 (Wash.App. Div. 1 2004).

Diminished capacity often comes in the form of a low IQ. Dan Brown claimed that his diminished capacity came from depression. Brown was successful in claiming diminished capacity, which lowered his liability from murder to voluntary manslaughter. The media labeled the result the "Twinkie defense," reporting that Brown claimed that he should not have been held fully responsible for the killings because he was "suffering" from the sugar rush of eating a lot of Twinkies. 

In fact, White did not use a “junk food” defense, but instead argued diminished capacity because of his episodes of depression. White's allegedly poor diet played only a small part in his lawyers' attempt to explain his plunge into a depressed state that led him to snap. Nevertheless, the phrase "Twinkie defense" has entered the lexicon to describe a seemingly absurd defense strategy that somehow works. Michael R. Dreeben, The Right to Present a Twinkie Defense, 9 Green Bag 2d 347, 348 n.5 (2006).

Thereafter, in large part due to the response to Dan Brown's case,

the diminished capacity defense has been so watered down...that it is a virtually useless defense for most people with mental disabilities. Some states have banned diminished capacity defenses altogether. Other states only allow the defense in murder prosecutions. Very few states permit the defense outside of specific intent crimes. In Wyoming or Connecticut, for example, if a defendant can prove that he could not have fully premeditated a killing, he can use the defense to preclude a first-degree murder conviction. However, the same defendant has no claim in an assault or rape case because these are general intent crimes. Some states also restrict the use of the diminished capacity defense to crimes, which have “lesser-included-offenses;” therefore, negating mens rea for murder means that the individual could still be guilty of the lesser-included offense of second-degree murder. Elizabeth Nevins-Saunders, Not Guilty as Charged: The Myth of Mens Rea for Defendants with Mental Retardation, 45 U.C. Davis L. Rev. 1419 (2012).

Now, you may regard this as a good thing or a bad thing. What I wonder is the extent to which the reaction to the current Texas trial might prevent future judges from considering evidence of "affluenza" in future cases. And what's interesting is that I am already seeing some sources unfavorably compare "affluenza" to diminished capacity:

-Time Magazine featured an essay this weekend from the department chair of psychology at Stetson University, Christopher Ferguson, arguing that the “affluenza” phenomenon is not only “junk science,” the theoretical proposition for it has nothing to do with diminished capacity for criminal intent.  It’s a possible phenomenon relating to consumer behavior only;

-As word of the successful application of the "affluenza" defense (which holds that spoiled rich children have a diminished capacity to understand right and wrong and can't be held criminally liable for crimes up to an including killing strangers) spreads, there's been lots of commentary on the subject

So, where does that leave us? I think that it's exceedingly unlikely that any future judge will use evidence of "affluenza" as mitigation evidence.



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