Ray is a 25-year-old transplant from Oregon, moved to southern California in search of sunshine and excitement. He ended up getting hospitalized for erratic behavior and diagnosed with a Bipolar Disorder. One night, after forgetting to take his Lithium, he’s at a bar having a drink and watching a football game on the big screen. The New England Patriots, his favorite team, is losing. No worries. Buzzed from too many beers, Ray is babbling incessantly about the greatness of “my team” with Howard, another drunk whose team is on the winning end. After a while, Howard can’t take Ray’s verbal tsunami anymore and called him a “retard.” Reacting impulsively, Ray smashes Howard’s face with the bottle of beer he was guzzling.
Ray was himself arrested, charged and convicted of assault with a deadly weapon.
Unfortunately, he was unlucky enough to have moved to California when the assault happened, and not in the Beaver state where he lived most of his life. Unlike Oregon and 21 other states, California doesn’t have a diminished capacity defense. Such a defense would have allowed him to present evidence at a trial that his mental disorder and alcohol abuse interfered with your ability to form the mental state element of assault – that he acted willfully and with intent. Ray’s attorney can’t argue that his mental illness and alcohol consumption drove his impulsive explosiveness, not simply his rage at Howard.
We can debate whether diminished capacity as a defense is fair or justified. My point is that what constitutes a criminal behavior and the nature of blameworthiness are largely community constructions and not a reflection of some natural law.
Gertrude Stein’s famously proclaimed, “A rose is a rose is a rose.” In nature, some things never change. In criminal justice, what is considered a crime is largely defined by state law and applied locally, with community standards having a powerful influence.
Location, location, location.
