Document Type

Article

Publication Date

2-19-2020

Abstract

A patriotic POW is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he had not previously held.

Retributivists committed to blameworthiness proportionality might support the community’s view of reduced blameworthiness, perhaps on some version of the argument that the offense was not committed by the offender’s authentic self. And a crime-control utilitarian might support revision of the criminal law to recognize a defense because such a serious conflict between community views and criminal law reduces the law’s moral credibility with the community and thereby undermines its ability to gain deference, compliance, assistance, and the internalization of the criminal law’s norms.

On the other hand, to recognize a defense or significant mitigation for indoctrination-induced offenses would produce a tectonic shift in criminal law foundations. The indoctrination dynamic at work in the brainwashed POW case is not limited to such unique circumstances but rather is a common occurrence in the modern world, where governments, religions, political groups, and a host of other organizations, and indeed individuals, consciously manipulate others toward criminal conduct through a variety of indoctrinating mechanisms. Are people no longer to be held responsible for who they are? Is the criminal law now to investigate how an offender came to have any beliefs and values that contributed to the offense conduct?

We argue that a close analysis of why some indoctrination cases are seen as blameless while others not suggests an articulable analytic framework based upon five key questions. We use a wide variety of real-world indoctrination cases to illustrate the operation of this framework and propose a specific statutory defense formulation that embodies it.

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