The Social Adversity Defence in Law

In light of our criminal justice system's current framework, which includes the defence of not guilty by reason of insanity, or not criminally responsible, there are those who also argue for the gross social adversity defence. This defence argues that the offender's actions were the result of the extraordinary circumstances of their life, which placed the offender at a considerable disadvantage in regards to their ability to comply with the law. I strongly oppose this defence for both practical and ideological reasons, which in my opinion compromise and undermine the integrity and goals of our justice system.

However, this is not to say the argument for the defence is without merit. There is empirical evidence to suggest a strong relationship between social conditions and crime rates. For instance, if our population is broken down into smaller segments: by race, gender, and poverty levels, we can find groups in which the chances of being arrested by the age of 18 are over 80%. We can equally find segments of the population in which the probability of arrest by the age of 18 are less than 5%. There is a statistical term called "the base expectancy rate" which statisticians use to predict future events. For instance, it is obvious that the vast majority of the population can overcome a 5% expectancy rate, and the opposite is true if the expectancy rate is 80%. Therefore, it would be absurd to contend that criminality is purely based on the offender's moral character.

Following these facts, criminal law scholar Norval Morris concluded that: "social adversity is grossly more potent in its pressure towards criminality . . . than is any psychotic condition.... As a rational matter it is hard to see why one should be more responsible for what is done to one than for what one is." However, this view can be criticized for exaggerating the parallel between the disabilities caused by mental illness, to the crime engendering aspects of social adversity. It would be a very dangerous thing to confuse cognitive disabilities caused by mental illness, with temptation and anger - things that our legal system strives to deter citizens from using as justifications for their actions. If the adverse social conditions were so great that they could be said to have absolutely created cognitive disabilities leading to crime, then the individual would be in a position to use the NCR defence anyway.

Furthermore, despite the poor odds faced by those in the 80% base expectancy group, that still leaves 20% of the group's members that nonetheless manage to overcome their disadvantages. Since there is no group which faces a 100% base expectancy rate, one cannot equate the disadvantages caused by social adversity with the cognitive disadvantages of the mentally ill. The fact that there are individuals in these highly disadvantaged segments of society that overcome their obstacles and end up leading successful lives is a very troublesome fact for the proponents of the gross social adversity defence.

Unlike the NCR defence, in which there are examples of situations in which nearly everyone can accept that the offender was so utterly delusional that they should not be found responsible for their actions, there are no examples of someone attempting the social adversity defence in which a significant amount of people did not feel that the offender had an alternative. As the leading 19th century British scholar on criminal law, James Fitzjames Stephens, explained, "It is at the moment when temptation is strongest that the law should speak most clearly and emphatically to the contrary".

Although I can agree and sympathize with the reality that overcoming very high rates of base expectancies is exceedingly difficult, I have a great objection to the social adversity defence's implication that a mentally sound human being is somehow less responsible, and therefore less autonomous than everyone else. This is particularly troublesome when compounded with the fact that many of the people whose full autonomy would be negated would also be members of a racial minority. This would have the negative and dangerous effect that certain segments of our society would be stigmatized as being less responsible and autonomous than the typical suburban upper middle class segment, whether they commit crimes