Academic journal article Columbia Journal of Law and Social Problems

In Defense of Cultural "Insanity": Using Insanity as a Proxy for Culture in Criminal Cases

Academic journal article Columbia Journal of Law and Social Problems

In Defense of Cultural "Insanity": Using Insanity as a Proxy for Culture in Criminal Cases

Article excerpt

I. INTRODUCTION

The United States is often proclaimed to be a cultural melting pot, where people of every race, religion, and national origin intermingle to produce a unified populace that is vibrant, rich, and dynamic. One problem with this melting pot concept, however, is the implication that the final product of such intermingling is a homogenous, national standard of culture that evaporates the unique qualities of the individual cultures mixed into the pot. Although some degree of assimilation often occurs when immigrants come to the United States, the process of assimilation is rarely absolute and most of the newly arrived retain strong commitments to their native cultures.1 Such diversity can be seen as a great boon, since "[b]y absorbing cultural elements from a broad spectrum of ethnic groups, American culture has remained dynamic and creative, continually evolving as it weaves threads of various immigrant cultures into its fabric."2

This diversity of cultures in the United States and the ability of its citizens to preserve elements of their native cultures, though commendable, can also serve as a source of serious conflict. Courts provide one arena for such conflict to play out. Though immigrants and their offspring may operate under beliefs and codes of conduct that are foreign to the dominant American culture, they are nonetheless expected to comply with American laws. Courts generally adhere to the 1872 Supreme Court decision of Carlisle v. United States, which stated that "an alien, whilst domiciled in the country, owes a local and temporary allegiance" to the country and adopts all U.S. laws for the duration of his residence in the country.3 Therefore, at least in theory, Amer ican courts do not consider whether an immigrant who committed a crime did so because his cultural beliefs, practices, or customs either dictated he must or obscured his understanding of the law. There is, in other words, no cultural defense to crimes committed in the United States.4

Despite the lack of a formally recognized cultural defense, the past few decades have seen a number of cases in which defendants seek to explain their behavior by reference to their native culture, and some judges have admitted and considered such cultural evidence.5 The rationale behind allowing cultural evidence is that criminal law generally requires criminal acts to be accompanied by a particular mental state (mens rea) and that "[a]n understanding of the defendant's mental state is incomplete without an understanding of cultural context."6 However, the cultural defense is far from universally accepted, and most attempts to use cultural evidence to mitigate a defendant's punishment fail.7 Many judges subscribe to the "when in Rome, do as the Romans do" philosophy,8 and thus reject the concept of a cultural defense and refuse to admit cultural evidence at trial or sentencing.9 Nonetheless, defense attorneys have in some cases succeeded in introducing cultural evidence by incorporating cultural arguments into traditional criminal defenses like provocation10, selfdefense11, and, the topic of this Note, insanity. For example, in People v. Kimura,12 a Japanese-American woman who killed her children and attempted to kill herself after learning of her husband's infidelity - in accordance with the ancient Japanese custom of oyako-shinju (parent-child suicide)13 - avoided a firstdegree murder charge and was sentenced to just one year in county jail and five years probation because her defense attorney successfully argued that she was suffering from temporary insanity at the time she killed her children.14

The cultural defense and the insanity defense are analogous insofar as both "seek to excuse a defendant because he either did not know his actions were wrong or could not control them."15 However, comparing a culture-related crime to an act of insanity for the purpose of legal defense has received widespread criticism. Many scholars argue that such a comparison is both inaccurate and harmful, since most defendants in these cases are not mentally ill but simply act in accordance with their culture, and a ruling of insanity may hurt the defendant more than a prison sentence. …

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