Against Control Tests for Criminal Responsibility

Stephen J. Morse, University of Pennsylvania Carey Law School

In Criminal Law Conversations (Paul Robinson, Stephen Garvey & Kimberly Kessler Ferzan eds., Oxford 2009)


In commonsense terms, it is true that some people have more difficulty than others controlling their conduct in general or in specific contexts, and “lack of control” has meaning. The rationale for an independent control test for criminal responsibility is that some defendants allegedly do not have rationality defects, and therefore cannot satisfy cognitive tests, but they nonetheless cannot control their conduct and therefore deserve excuse or mitigation on desert and deterrence grounds. The question for the law is whether an independent control test for excuse or mitigation is conceptually sound and practically feasible. This core text suggests that at present there is no need for the law to adopt an independent control test.