The 'Abuse Excuse' in Capital Sentencing Trials: Is it Relevant to Responsibility, Punishment, or Neither?

47 Pages Posted: 4 Jan 2007

See all articles by Paul Litton

Paul Litton

University of Missouri School of Law


The violent criminal who was a victim of severe childhood abuse frequently appears in the responsibility literature because he presents a difficulty for theorists who maintain the compatibility of causal determinism and our practices of holding persons responsible. The challenge is based on the fact that learning about an offender's horrific childhood mitigates the indignation that many persons feel towards him, possibly indicating that they hold him less than fully responsible. Many capital defendants present evidence of suffering childhood abuse, and many jurors find this evidence to count against imposing death. The most obvious explanation for a response like this is that the abuse was a cause of the crime, andso rendered the offender less than fully responsible for it. But this intuitive explanation theatens the claim that responsibility is compatible with causation. Indeed, if causation is a basis for excuse (even a partial one), the fairness of holding persons responsible is threatened given that all our behavior is caused by factors, such as our upbringing, outside our control.

A common compatibilist response to this challenge is that abuse is relevant to responsibility if the abuse caused a diminished capacity for practical reasoning. This response, however, cannot account for all cases in which abuse evidence appears relevant to the punishment determination, and thus I confront the challenge more directly. I argue that there are cases in which it is appropriate for jurors to consider abuse evidence independently of whether the capital defendant's reasoning capacities were diminished and offer an account to justify the consideration of that evidence as mitigating, even when we should resist concluding that the offender was less than fully responsible. My argument rests on distinguishing the capacities required for responsibility from other considerations that militate against punishment and which help justify the criminal law. A minimally decent moral education, which some forms of abuse preclude, is one of those considerations that helps justify the criminal law's harsh penalties. I argue that it is more difficult to justify the death penalty for a defendant who was deprived of a minimally decent moral education compared with others who were not, regardless of whether that defendant's reasoning capacities were sufficient for full responsibility.

Keywords: responsibility, punishment, death penalty

Suggested Citation

Litton, Paul, The 'Abuse Excuse' in Capital Sentencing Trials: Is it Relevant to Responsibility, Punishment, or Neither?. American Criminal Law Review, Vol. 42, 2005, U of Missouri-Columbia School of Law Legal Studies Research Paper No. 2006-42 , Available at SSRN:

Paul Litton (Contact Author)

University of Missouri School of Law ( email )

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Columbia, MO MO 65211
United States

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