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Professor Stephen J. Morse on Disadvantage as a Defense

June 25, 2012

Should extreme poverty and social deprivation be considered an excuse for crime and allowed to be used as a criminal defense? A new paper, “Severe Environmental Deprivation (aka RSB): A Tragedy, Not a Defense,” by Stephen Morse, a University of Pennsylvania Law School professor and forensic psychologist, says the answer is an emphatic “no.”

The issue, referred to as the “severe environmental deprivation” (SED) defense, engaged a few  judges decades ago and has engaged legal scholars for decades. To date, however, the SED excuse has not been adopted by any court, nor has it gained traction in state legislatures across the country. And there’s a good reason for that, according to Morse: “It is simply an unwise idea,” he writes. “Severe deprivation is indeed a tragedy, but it is not an excusing condition.”

In a wide-ranging critique published in a symposium issue of the Alabama Civil Rights & Civil Liberties Law Review, Morse, who is the Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and Law in Psychiatry at Penn’s Law School and School of Medicine, maintains that the SED defense, sometimes referred to less politely as “rotten social background,” fits poorly with the internal structure of criminal law.

“It is either a radical critique of all responsibility, an attempt to do social welfare through criminal justice, or a poor proxy for diminished rationality and control, which are genuine excusing and mitigating conditions,” he writes.
Morse offers several practical and theoretical reasons why severe disadvantage should not be adopted as a criminal defense. As a moral matter, he observes, most poor people, even those from severely deprived environments, are law-abiding citizens, and treating them as somehow less responsible for their actions as a result of their social backgrounds demeans and patronizes them.
Morse also argues against claims that the SED defense should be adopted as a way of putting society on trial and forcing it to confront and correct social injustice by way of testimony in court. Such an outcome is extremely unlikely, he suggests, and an inappropriate use of the criminal justice system.
The SED issue and Morse’s paper engage current debates about mass incarceration in the U.S. and the roles played by poverty and race. According to a 2011 Human Rights Watch report, the U.S. in 2009 incarcerated 748 inmates per 100,000 residents. According to the report, black males were incarcerated at a rate more than six times that of white males, and one in 10 black males age 25-29 were in prison or jail in 2009.
Whether the racial disparity is an accurate reflection of crime rates in various communities or the result of discriminatory criminal justice, Morse argues, the U.S. imprisons too many people for too long. He writes: “Our drug laws and mandatory minimum prison sentences are prime examples of criminal justice policies that do not work and that disproportionately affect poor people and racial minorities.”
Taking into account that extreme poverty and social deprivation is not a viable defense, in the paper Morse advocates six criminal-law reforms that he believes can make a difference for the disadvantaged.
Decriminalizing drugs. “The substantive criminal law reform that would have the greatest impact on criminal justice and on disadvantaged people would be to decriminalize the manufacture of drugs by individuals for personal use, the buying and selling of small quantities of drugs associated with personal use, the possession of small quantities of drugs, and the use of drugs.”
Diminished capacities defense. “Criminal law should … give all defendants, including those from severely deprived environments, an opportunity at trial to demonstrate that they were not fully responsible for themselves at the time of the crime as a result of traditional mitigating circumstances.” Most defendants might not succeed, but they would have a chip in the plea bargaining process, Morse notes, adding that any  reduction in sentences would have to balance culpability and social safety concerns.
Sentencing reform. “People who do serious crimes should do serious time, but people who commit trivial offenses should not do serious time, and even serious offenders should not be imprisoned longer than is necessary consistent with an empathic concept of desert and the need to protect society.”
Prison rehabilitation programs. “ Prisons should offer services and programs on a voluntary basis that would increase human capital, such as good educational programs. Many people think that we should not spend public moneys for the benefit of offenders when so many law-abiding citizens also need programs and services, but this view is shortsighted. Good services that increase the offender’s post-incarceration productivity and decrease recidivism will ultimately save money and human lives.”
Abolition of the death penalty. “The death penalty should be abolished,” Morse asserts. “Even if some capital offenders deserve to die and the state has the moral right to execute them, the penalty will never be fairly imposed. And, it is widely thought to be imposed improperly based on racial characteristics, such as the race of the victim.”
Ending abusive police practices. “Aggressive practices,” such as stop and frisk practices aimed primarily at poor, minority males, “should be evidence-based,” Morse suggests that evidence-based and even-handed, respectful police behavior “is crucial to the legitimacy of law enforcement and a culture of good compliance with the law.”
While acknowledging that these recommended reforms engage “enormously complicated, politically and morally contested issues,” Morse argues, they are feasible in our criminal justice system and would benefit both people from disadvantaged backgrounds and society as a whole.