During the last two centuries, the dominant intellectual culture has discarded a theistic understanding of human nature and replaced it with a naturalistic understanding. Once upon a time we thought that humans were moral agents created in the image of a supernatural God, with a divine gift of freedom and a knowledge of God's moral order written on our hearts. Now we think otherwise if we obediently follow our cultural leaders. Twentieth-century science teaches us that our thoughts and actions are the products of our genetic endowment and our cultural environment. Naturalistic thinkers may disagree about the relative importance of biology as opposed to culture, but they agree that who we are and what we do is explained by some combination of nature and nurture. What else is there?

We might have expected such an intellectual revolution to affect the criminal law, and it has done so. Earlier ages felt comfortable with the idea that a murderer deserves to die because he has deliberately taken the life of another to further his own selfish ends. Modernists think otherwise. The murderer acted as he did because of some genetic predisposition, or because he was abused as a child or otherwise mistreated by society. For modernists, crime is a social problem like disease, which a rational society seeks to mitigate by identifying and treating the "root causes."

James Q. Wilson, the well-known political scientist whose previous books include Thinking About Crime and The Moral Sense, is himself a thoroughgoing modernist who nonetheless rejects the fruits of modernism in the criminal law. He attacks expansions of the insanity defense and other psychological defenses like the "battered wife syndrome" that have allowed killers to escape punishment because "they couldn't help it." Beware of social scientists bearing syndromes, he warns; they are usually peddling junk science.

Although many of Wilson's criticisms of specific doctrines are sensible, the picture he paints of the overall state of the criminal law is grotesquely misleading. The "abuse excuse" is not out of control, the insanity defense is not expanding, and the law is not losing its moral compass to wallow in pseudoscientific explanations of criminal behavior. Far from it. The expanded mental-illness defenses Wilson criticizes had their heyday in a few states a generation ago, and they have been repudiated whenever they had tangible consequences. Criminal sentences are much longer than they used to be, and prison is frankly regarded as a punitive remedy. Even the death penalty, which seemed on the way out 30 years ago, has made a comeback. Relatives of murder victims now have standing to appear in sentencing and parole hearings, and their arguments for retributive justice are heeded.

That Wilson is describing anomalies rather than the norm is illustrated by one of his prime examples, the infamous Menendez brothers case. The brothers, who cold-bloodedly murdered their wealthy parents, claimed that they acted in self-defense because the parents were planning to kill them to cover up a history of sexual abuse. The defense managed to muddy the waters enough with this preposterous story that the jurors could not agree on a verdict. That was embarrassing for the criminal-justice system, but it didn't do the defendants a bit of good. On retrial the judge ran a much tighter ship, and the jury had no difficulty convicting both brothers of first-degree murder. The second trial, not the first one, is typical of what happens to premeditated murderers.

Wilson admits this but says that the exceptional, high-profile cases disproportionately affect public perceptions of the system. True enough; but the whole thrust of Wilson's argument furthers the misperception that abuse excuses are expanding out of control. Wilson even distorts the facts to support the false picture of a lenient system that allows every conceivable excuse. He writes that "sentences for homicide are relatively short (in the 1990s, around six years for the nation and four years in California)." Tell that to the Menendez brothers, who (like most aggravated murderers in California) are serving life without eligibility for parole. Wilson seems to have confused the average prison term of persons released on parole for manslaughter (i.e., the least culpable killers) with the typical prison term for murderers, who serve many years before parole, if they ever get paroled. If you are thinking of committing a murder in California, it would be better not to rely on legal advice from Professor Wilson.

Moral Judgement: Does the Abuse Excuse Threaten Our Legal System?

By James Q. Wilson

Basic Books

134 pp.; $18

A criminal-justice system that tries thousands of cases every week is bound to include examples of juries who refuse to convict because they dislike the victim, or feel sorry for the defendant, or swallow tall tales about police conspiracies. I agree that we should not encourage this sort of thing by exposing jurors to far-fetched psychological theories, but the lawmakers have largely learned this lesson.

Consider the recent history of the insanity defense, for example. Anglo-American law traditionally allows only a very narrow insanity defense, requiring the defendant to prove that, due to mental illness, he was incapable of understanding the wrongfulness of his act (usually, homicide). A major goal of modernist law reformers was to broaden the defense to put the burden of proof on the prosecution and to allow acquittal of defendants who could not control their conduct. Since modernist science assumes that all behavior is "caused" by some combination of nature and nurture and banishes the freely choosing moral subject to the realm of metaphysics, the "lack of free will" defense was potentially open-ended.

The expanded insanity defense was endorsed by the leading experts and enacted in the federal system and many states. (In California, judges left the old insanity rule unchanged but introduced the new philosophy directly into the law of murder by saying that a defendant lacked "malice aforethought" if he couldn't control his conduct.) The new rules lasted just until they succeeded in generating outcomes the public recognized as crazy, including the insanity acquittal of John Hinckley—who shot President Reagan and his press secretary in hopes of attracting the notice of the movie star Jodie Foster. Of course, Hinckley's motivation really was loony, but he also knew the wrongfulness of what he was doing and chose to do it. Public opinion promptly forced a change back to the old rules, with additional measures designed to ensure that defendants acquitted for insanity would be confined just as securely as if they had been convicted. John Hinckley is still behind bars and going nowhere.

What is particularly fascinating about the traditional insanity doctrine, called the M'Naghten Rule by lawyers, is that it is based straightforwardly on assumptions derived from biblical theism. Humans are seen as endowed with an innate understanding of the difference between moral right and wrong—meaning an absolute moral standard that is independent of legal rules. The law holds us responsible if we choose wrong instead of right, just as God does—and science does not. Criminal defendants are excused for insanity only if this innate capacity for moral understanding is so damaged that they are comparable to small children, who do not grasp what killing means even if they pick up a loaded pistol, point it at a playmate, and pull the trigger. (A California six-year-old was recently found incapable of committing attempted murder after he beat a baby almost to death. No one protested the decision.) Insanity in this restricted sense saves a killer from the death penalty, but it does not lead to freedom, because an adult who does not know right from wrong belongs in custody.

Whatever scientific naturalists may say, criminal law has found it necessary to assume that humans are moral agents created in the image of God, with a divine gift of freedom and a knowledge of God's moral order written on our hearts. Even James Q. Wilson, who doesn't believe the premise, likes the conclusions that follow from that premise. When you are dealing with human beings, naturalism is a bust—especially as a methodology.

Phillip Johnson is professor of law at the University of California, Berkeley.

Copyright(c) 1997 by the author or Christianity Today, Inc./Books & Culture Magazine. For reprint information call 630-260-6200 or e-mail bceditor@booksandculture.com.

Nov/Dec 1997, Vol. 3, No. 6, Page 12