Rotten Social Background:

A Credible Defense?

E-mail    by Chris Snyder    Bio/Address

Rotten Social Background: Should the Criminal Law Recognize a Defense of Sever Environmental Deprivation by Richard Delgado presents a very complex legal question with very significant social implications:

Should criminals from deprived and impoverished social backgrounds be held accountable for their criminal behavior? 

Rephrasing the question:  

Should a person who has been raised in the urban ghetto (who has been immersed in all the social stigmas associated with a depraved environment) be able to use the “Rotten Social Background” argument as a defense to fend off charges of criminal behavior?  (Delgado at 250,258,270). 

Background Information 

In his legal textbook, Criminal Law and Procedure, John M. Scheb states that modern criminal defense is rooted in two equally accepted sources: British Common Law and the U.S. Constitution. Legal defense with their origins in British Common Law are criminal responsibility, insanity, self-defense, mistake of fact, necessity and duress (Scheb at 337). The U.S. Constitution proclaims many additional provisions for formulating criminal defenses: immunity, double jeopardy, statute of limitations, entrapment, and selective prosecution (Scheb at 337). Scheb defines legal criminal defense as "a defendant's stated reasons of law or fact as to why the prosecution or plaintiff should not prevail" (Scheb at  666).

According to Scheb a legal defense for criminal behavior encompasses two principles:  

1.  Excuse for a crime "admits the offense but claims that under the circumstance the conduct should not result in punishment" (Scheb at 344).

2.  Justification of a crime asserts the act was justified under the circumstances of which the crime took place (Scheb at 344-45).  

Scheb divides the defensible arguments of Excuse and Justification into five separate elements: duress, necessity, consent, mistake of law, mistake of fact (Scheb 345).

Delgado points out that within the Justification principle of criminal defense, the Model Penal Code § 3.02 (1962) establishes another fundamental principle that "…the harm sought to be avoided be greater than the harm sought to be prevented by the law defining the offense" (Delgado at 252). 

Arguments

 Delgado argues that the criminal defense of Rotten Social Background should be incorporated into our legal system because it parallels the existing criteria for Justification and Excuse.  Delgado cites the two basic requirements of the Justification defense:

 1.          “the actions must be necessary to protect the interests at stake.”

2.         “the action must be proportional to the threatened harm” (Delgado at 251–52).

 

Delgado cites experts who claim that criminals from poor ghetto areas are justified in “protecting their interests” by committing crimes of necessity if “…a society does violence to an individual when it causes mental and economic hardships, causing an uncaring environment in which these conditions thrive” (Delgado at 253). These experts advocate necessity as an excuse for criminal culpability if “…a society does violence to an individual when it refuses to prevent the deprivation and suffering resulting from its social and economic order” (Delgado at 253).

Scheb defines the defense of necessity in his textbook Criminal Law and Procedure, as “… forces beyond actor’s control are said to have required a person’s choice of the lesser of two evils” (Scheb at 346). An example of this would be a cold lost hunter breaking into an empty cabin to avoid freezing to death.  The principles of necessity and proportionality are documented in a case where an man without a driver’s license drives his pregnant and in-labor girlfriend to the hospital - State v. Cole (S.C. 1991). Would this same defense of necessity apply in a case where a person from a ghetto finds himself deciding between the lesser of the following two evils: 

1.          remaining in a slum penniless and unemployed or

2.         robbing a couple strolling down the street returning from a movie? 

It would not.

Whereas the unlicensed driver was responding to the “dire emergency” of a moment in time, the Rotten Social Background case is rooted in a living condition that is a constant for a long period of time. Thus the theory of necessity applies in a case of “dire emergency” but has no similarities to the long-term effects of Rotten Social Background and therefore does not contain a parallel legal precedent.

In regard to the proportionality argument, the Delgado article proposes justification of violence because these acts can be treated as “…a protest against political or economic subjugation, an appeal to the right more fundamental than the one protected by the law which is broken” (Delgado at 254). However, neither state nor federal law permits a disenfranchised person, whether s/he is a minority or otherwise, from an impoverished environment to steal, rob, or kill and then turn around and blamed the rest of society for that action. It may be true that such hostile social conditions exist, but it is not proportional to commit crimes against citizens and deem these actions commensurate to the threatened harm of social or governmental neglect. Our legal statutes do not provide for proportionality for criminal behavior by those who in fact may be impoverished members of an adverse urban environment who perceive that they have little recourse. The law does not allow the “oppressed” to victimize individual people and institutions forcing them to endure the blame for the failures of society as a whole.

As for duress, Delgado’s article cites Professor Greenwalt who uses the Rotten Social Background defense arguing that committing a crime is a response to society’s harsh economic treatment of minorities. “…One must be prepared to consider that denial of political participation and systematically unfair economic treatment can justify a forcible response” (Delgado at 254). However the existing law rejects criminal behavior from economic duress in many cases, for example Corujo v. State, FL App 1982 (Scheb 346). The courts recognize nonviolent forms of protest for reform of political and economic exclusion, but not rampant crime on our public streets.

The argument for Rotten Social Background defense also does not hold up under the legal conditions of excuse.  Delgado poses the question, “…the conduct of the defendant might be wrong, but can this individual be blamed for committing the wrongful act?“ (Delgado at 257). Delgado has prepared a list of living conditions that would produce a disability and that causes an excusing condition (Delgado at 258). He feels that a particular excusing condition could be used as a Rotten Social Background defense for a particular crime. However, in our present legal system the Rotten Social Background defense may cause an excusing condition, but may not be the sole excuse for the crime (Delgado at 260).

A psychological condition or mental illness that could result in criminal behavior is a factor in determining those who are mentally fit to stand trial.  The current federal standards to determine such competency are outlined in the Insanity Defense Reform Act of 1984:

 It is an affirmative defense… if the defendant through severe mental disease or defect cannot at the time of the crime appreciate the nature of his wrongful acts, mental disease or defect does not otherwise constitute a defense. 18 U.S.C.A. §17 (a).

 Since a Rotten Social Background produces the constant awareness of unfair conditions and creates “a reservoir of rage” which make the offender feel validated when s/he commit the crime (Delgado at 258), the Rotten Social Background defense cannot claim an “excusing condition” whereby the criminal cannot appreciate the nature of his wrongful act at the time the crime. The defendant with a Rotten Social Background is continually aware of why he commits the crime while he commits the crime.

The crux of this issue and what undermines Delgado’s argument is a term he uses as a part of his argument - “capacity of choice.” (Delgado at 260). A Rotten Social Background defendant can be blamed for engaging in a crime which he knows to be as unjust as the social situation he currently faces because the defendant appreciates the wrongness of his actions while he commits the crime as a stated protest of what he feels is wrong.

 It all comes down to this question:

 Is it Rotten Social Background that forces a person to act in a criminal manner, or is it just a person with criminal tendencies who chooses to remain in a depraved neighborhood and act criminally in this urban backdrop as a theater of operation?

 Conclusion

 The law is not willing to excuse or justify the acts of criminals just because they live in slums.  Since the residents of an environmentally depraved neighborhood possess the ability to choose to escape to a new and more vibrant neighborhood or to remain and support themselves through criminal behavior, there is no excuse or justification in the eyes of the law for any criminal activity.  Racism and social neglect do persist in this country and we as a collective nation must strive to eliminate these conditions.  We must do it through the preservation of our Constitution, the Bill of Rights, appropriate legislation, and a sound legal system.  Mr. Delgado’s and those he cites do not make a sound argument for a Rotten Social Background criminal defense. We must not undermine the foundation of our legal system that is designed to protect people and their property by allowing criminals to rule with a rationalization that has no sound basis in U.S. law.  America’s courts should not accept “Rotten Social Background” as a credible defense for criminal behavior.

 References

Delgado, Richard.  Rotten Social Background: Should the Criminal Law Recognize the Defense of Severe Environmental Deprivation?, CRJ 449 Criminal Law Handout No. 1 249 – 271.

 Scheb, John M. and John M. II. Criminal Law and Procedure, 4^th ed. California: Wadsworth, Thomson Learning, 2002.