NCJ Number
56343
Journal
Minnesota Law Review Volume: 63 Issue: 2 Dated: (JANUARY 1979) Pages: 360-365
Date Published
1979
Length
5 pages
Annotation
IN RESPONSE TO SPECIFIC CRITICISMS OF HIS PROPOSED DEFENSE FOR COERCIVELY PERSUADED CRIMINAL DEFENDANTS, PROFESSOR DELGADO ARGUES THAT SUCH DEFENDANTS LACK SUFFICIENT FREEDOM OF CHOICE TO BE HELD ACCOUNTABLE.
Abstract
ALTHOUGH PROFESSOR DRESSLER OF HAMLINE UNIVERSITY SCHOOL OF LAW PERCEIVES THE DEFENSE FOR COERCIVELY PESUADED DEFENDANTS AS BEING BASED ON THE PEMISE THAT THE MENTAL STATE OF THE DEFENDANT IS INCULCATED BY ANOTHER PERSON, THE DEFENSE AS PROPOSED BY PROFESSOR DELGADO IS MUCH NARROWER; THE DELGAGO THEORY ALLOWS FOR A DEFENDANT'S EXCULPATION ONLY IF HIS OR HER BEHAVIORAL AND MENTAL PATTERNS HAVE BEEN FORCIBLY ALTERED THROUGH TERROR AND ASSAULT. THESE FORCES MUST HAVE BEEN APPLIED DURING AN EXTENDED PERIOD OF TIME BY PERSONS WHO POSSESSED TOTAL CONTROL OVER THE ENVIRONMENT OF THE COERCED DEFENDANT. CRIMINAL ACTS SUCH AS ORDINARY SOLICITATION AND VOLUNTARY SUBCULTURE MEMBERSHIP ARE EXCLUDED FROM ACCESS TO THIS LIMITED DEFENSE. THE CRITICISMS OF PROFESSOR DRESSLER ARE INCORRECT TO THE EXTENT THAT THEY PRESUME THE AVAILABILITY OF THE DEFENSE TO ANY DEFENDANT WHOSE ACTS ARE INFLUENCED BY EXTERNAL FORCES. ALTHOUGH A 'BRAINWASHED' DEFENDANT MAY RETAIN SOME DEGREE OF CHOICE, THE QUANTUM OF 'SELF' IS SUFFICIENTLY REDUCED THROUGH INTENSE COERCION SO AS TO CREATE A DEFENSE SIMILAR TO THAT OF DURESS OR INSANITY. THE PROPOSED DEFENSE DIFFERENTIATES BETWEEN CIRCUMSTANCES IN WHICH A PERSON'S ALTERNATIVES HAVE BEEN LIMITED BY THE ENVIRONMENT, SUCH AS GHETTO CONFINEMENT, AND THE MORE SERIOUS SITUATION IN WHICH A PERSON'S CAPACITY TO CHOOSE HAS BEEN SIGNIFICANTLY CURTAILED. FOOTNOTES ARE PROVIDED. FOR THE ORIGINAL ARTICLE SEE NCJ 53192, AND FOR THE CRITICISM SEE NCJ 56342. (TWK).