Commonsense Judgments of Infanticide

Psychology, Public Policy, and Law 2000, Vol. 6, No.
4, 1113-1137
Copyright 2000 by the American Psychological Association, Inc. 1076-8971/00/S5.00 DOI: 10.1037//1076-8971.6.4.1113
COMMONSENSE JUDGMENTS OF INFANTICIDE Murder, Manslaughter, Madness, or Miscellaneous?

Norman J. Finkel, John E. Burke, and Leticia J. Chavez
Georgetown University V. Dobson and B. Sales (2000) have found that law and science do not align over infanticide. In the present article, the authors examine commonsense justice and how community sentiment judges infanticide cases. First, analzing archival data, the authors find that sentiment has changed over some 450 years, roller coastering from lenient, to harsh, to lenient. Second, analyzing current trends, the authors find indications that sentiment is changing toward harshness. And third, a harsher direction is documented through an experiment in which 4 variables (each with 3 levels) were manipulated: time (neonaticide vs. filicides), depression (its severity and support by psychiatric experts), age (of defendant), and manner (the violence of the death). A complex picture emerges in the verdict, sentencing, and dispositional patternsa picture that does not look like either murder, manslaughter, or madness. Beyond documenting that commonsense infanticide stands apart from the law, the authors identify reasons for this disconnect and offer suggestions for the two to move into closer alignment.
Dobson and Sales (2000) have found that laws on infanticide (e.g., either the overly generous British law or the overly restrictive American law) rest explicitly on "behavioral assumptions" (Sales, 1983), particularly about depression, child bearing, and lactation, and their connections to actus reus, mens rea, and culpability. However, from their analysis, Dobson and Sales found that these behavioral assumptions are not sustained by today's medical, clinical, and epidemiological facts. In short, the law and science are at odds. Although Dobson and Sales (2000) chiefly examined the two points of view of law and science, they nonetheless recognized that there is a third pointthe public viewpointfor citizens-turned-jurors must find the facts and decide such cases. However, to add this point to the infanticide picture and complete the triangle, the task is first to find this point and second to find its connections with the other two points. Regarding these two remaining tasks, we do not begin with a blank slate. There is ample research showing that long before jurors find the first fact in a case at bar, they arrive at court fully loaded with prototypes (e.g., Finkel, 1997; Finkel & Groscup, 1997a; Smith, 1991, 1993; Smith & Studebaker, 1996), stereotypes (e.g., Stalans, 1993; Stalans & Diamond, 1990), myths (e.g., Perlin, 1989-90, 1990; Silver, 1995), heuristics (e.g., Tversky & Kahneman, 1974), and "commonsense notions" of justice and fairness (e.g., Finkel, 1995b; Finkel & Sales, 1997). Some of these notions may relate to the cluster "women, childbirth, and depression"; other notions may relate to the cluster "the crime of infanticide
Norman J. Finkel, John E. Burke, and Leticia J. Chavez, Department of Psychology, Georgetown University. Correspondence concerning this article should be addressed to Norman J. Finkel, Department of Psychology, Georgetown University, Washington, DC 20057. Electronic mail may be sent to finkeln@gunet.georgetown.edu.
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and the perpetrators of such crimes"; still other notions may link this crime with murder, manslaughter, madness, or miscellaneous (e.g., Finkel, 1995a, 1996, 1997; Finkel & Groscup, 1997b). If jurors are toting weighty prototypical baggage at the outset, then probability alone suggests that some of these notions are likely to be at odds with the law and with science. But the situation may in fact be worse, for an empirical triangulation may reveal that there is, in the end, no triangle at allbut merely disconnected points. In beginning an investigation of this third point (and its connections with the other two points), we need to recognize that the matter is more complex and less stable than our metaphor of a triangle implies, for the public's viewpoint is not fixed in time and space. For example, across time, public opinion changes, as social scientists, pollsters, and Supreme Court justices have recognized, becoming "enlightened by humane justice" (Weems v. United States, 1910, p. 350), "evolving" as the "standards of decency that mark the progress of a maturing society" evolve (Trop v. Dulles, 1958, p. 101). Moreover, the historical, cultural, societal, legal, moral, economic, and psychological roots that feed community sentiment evolve as well. And then there is a modern root that must be considered: In the current information age, media influences may be a prepotent factor, although what the public is fed may well be inaccurate, unrepresentative, and prejudicial (e.g., Gaubatz, 1995; Graber, 1980; Hans, 1990; Studebaker & Penrod, 1997). Thus, influences operating on sentiment but changing over time introduce one type of instability in gauging the commonsense viewpoint. There are reasons to believe that the fixedness of community sentiment may be indeterminate and fluid in the spacial dimension, for the views of the public do not remain contained therein; rather, like contagions, these views spread, infecting and affecting legislators, justices, and the law. As Justice Holmes (1881/1963) noted long ago, judges are not removed from or immune to commonsense notions, which may, "avowed or unconscious," (p. 1) shape judicial rulings and the law. More than a century later, Senator Richard G. Lugar (R-Ind) put the accent on avowed rather than unconscious, noting that politicians and legislators had "become a 'hyper weather vane,' spinning feverishly in response to every poll that comes along" (Dewar, 1992, p. A23). If both the justice and the legislator are right about the connection between the public's viewpoint and that of the law, and about the direction of the influence (i.e., from commonsense notions to the law), then these two points of the triangle may end up being quite close. But if there is a connection between the two points, we must also consider the possibility that the influence works in the reverse direction as well: that judicial rulings and legislative enactments, and the reasons offered for each, are likely to influence and shape sentiment. Taking these time and space instabilities sequentially, our inferences go like this. Time instabilities suggest that current community sentiment ought to be situated in its historic and evolving context, to get the long view. Space instabilities suggest that we must weigh the public's viewpoint contextually, against the behavioral assumptions of the law and against the facts of science as they are presently known. We do both. This article can be viewed as a companion piece to Dobson and Sales's (2000) work, where the general topic remains infanticide, but the specific focus is the commonsense understandings. In Section I, we begin with the historic, for it is
COMMONSENSE INFANTICIDE
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from this context that we find the variables that were selected for assessment in the experimental work that follows. Although that history of some 450 years is a long one, we focus on the first 250 years, as Dobson and Sales presented the more recent two centuries. For the early time span, we draw heavily on the archival work of Hoffer and Hull's (1984) Murdering Mothers: Infanticide in England and New England, 1558-1803. Their archival analysis shows that community sentiment changes across the span, resembling a roller coastermoving from a lenient-to-moderate period to a severe period, then changing to a very lenient period, which continues well into this century. In Section II, we present some factors and facts that suggest that today's sentiment may be changing again, in the harsher direction. Some of these factors relate to scientific knowledge on facts relating to infanticide, whereas others relate to legal verdict options and how they relate to the typical evidentiary facts of infanticide. But one factor that receives particular attention relates to the media, for the media not only presents facts to the public, but it often does so in dramatic fashion, with a conclusive and normative spin. When the media presents conclusions from outlier cases that infanticide defendants are "getting away with murder" or "getting off light," the public may come to believe that these outliers are more typical than they really are and that extremely lenient verdicts and sentences may be more frequent than they are, as both may push sentiment in a more punitive direction. In Section III, the broad question regarding where community sentiment stands today and specific questions about discriminations within that sentiment in relation to our manipulated variables are taken up in an experimental format. Four variables (with three levels to each variable) that have long been relevant to infanticide adjudication were manipulated in a 2-between, 2-within design. Participants, having been randomly assigned to one of nine groups (the 3 X 3 levels for the between variables), read nine randomly presented vignettes (the 3 X 3 levels for the within variables) and render verdicts, give sentences, and provide reasons for their decisions. One variable, designated as time, involves the time-after-birth when the death of the infant occurs, and it has three levels: within 24 hr (making it a neonaticide), after 1 week (filicide), and at 3 months (filicide). The second variable, designated as depression, involves the level of depression claimed by the defendant and the kind and degree of psychiatric support offered into evidence for the claim: At the lowest level, the defendant claims she was depressed, but no supportive expert testimony is offered; at the second level, postpartum depression is claimed, and psychiatric evidence supports the contention; and at the third level, postpartum depression plus psychosis is claimed, with psychiatric expert testimony supporting this. The third variable, designated as age, involves the age of the unmarried female defendant: She is either 14 (high school student), 19 (college student), or 26 (working woman). And the fourth variable, designated as manner, involves how the infant dies and varies from least violent to most violent: At the least end, the infant is deserted and concealed; at the second level, the infant is smothered and concealed; and at the most violent end, the skull of the baby is smashed, and then the body is concealed. In Section IV, the commonsense findings are related to both the law and to science and to the findings of Dobson and Sales (2000). Surprisingly, there was
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no main effect for time, but there were main effects for depression, age, and manner, and there were some interesting interaction effects. When all of the effects are considered, the emerging picture suggests that ordinary citizens do not see infanticide cases like ordinary cases of murder, manslaughter, or madness, though some relationship to all is evident. In Dobson and Sales's terms, commonsense infanticide does not align with the "inappropriately broad British approach," nor does it rest flatly and squarely on the "myopic American position." As commonsense notions show some disconnects to both science and the law, we end up with three points but no trianglefor the lines do not connect the dots. The best fitting verdict for commonsense infanticide, as our title suggests, may be "miscellaneous" as the default option, and we provide the commonsense reasons for why this is so. This emerging picture of commonsense infanticide is complex and contextual, with interaction effects showing various prototypes and stories being constructed; although these prototypes and stories show sophistication and plausibility, this is not to say that they are all square with the science or adaptable for the law. Still, in Section V, we use the complexity of the commonsense picture, which in many ways shows more nuances than do both the current science and the law, to offer a few suggestions on how the three disparate points (law, science, and commonsense) might be brought into closer alignment. Ending in realism, we also recognize some basic differences between law and commonsense justice over how culpability is to be assesseddiscrete categories versus gradations, more objectively versus more subjectively, a narrowed context versus a wider contextthat may be extraordinarily difficult to bridge.
I. The Historical Context

Regarding the earliest period they examine, from 1558 to approximately 1600, Hoffer and Hull (1984) concluded that the "English authorities condemned the act of child murder, but did not energetically suppress it" (p. ix). In fact, very few infanticide cases were brought to trial, and the severe sentencing for murder (e.g., the death sentence) was rare. If the crime of murder was seldom applied when it could have been, it may well be because citizens and the law looked the other way, in the lenient direction. Some people no doubt recognized that these young, single, servant-class women may well have been pressured into sex or raped by their older masters, and thus, if they were already victimized, charging and punishing them might have been seen as double punishment. Sympathy might also attach when considering the consequences, for these women were likely facing bleak social, economic, and marital prospects if the bastard issue lived, and this may have been seen as punishment enough. And there may have been understanding around the dangerousness of the abortion option, which, in those times, involved home remedies that could easily prove fatal to the mother. Such sympathetic and lenient sentiments may have led some to believe the frequent rebuttal claimthat the infant was stillborn or died during delivery (for infant mortality was high)for absent today's forensics, establishing the cause of death was highly problematic. Other jurors, a bit more skeptical about either the stillborn or died-during-delivery rebuttal stories, might have availed themselves of
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reasonable doubt to void conviction, and magistrates may have used the same doubt to avoid prosecuting such cases. But the situation dramatically changed toward harshness from approximately 1600 to 1720. "Late Tudor and early Stuart criminal tribunals, in contrast, witnessed a leap of indictments and a still steeper climb in the percentage of guilty verdicts" (Hoffer & Hull, 1984, p. x), with the legal centerpiece being the Jacobean infanticide law of 1624 (21 James I, c. 27). This law clearly affirmed that infanticide was no more or less a murder than before, but in its tone and content, it conveyed much more:
WHEREAS, many lewd women that have been delivered of bastard children, to avoid their shame, and to escape punishment, do secretly bury or conceal the death of their children, and after, if the child be found dead, the said woman do alledge, that the said child was born dead . . . . II. For the preventing therefore of this great mischief, be it enacted by the authority of this present parliament, That if any woman . . . be delivered of any issue of her body, male or female, which being born alive, should by the laws of this realm be a bastard, and that she endeavour privately, either by drowning or secret burying thereof, or any other way, either by herself or the procuring of others, so to conceal the death thereof, as that it might not come to light, whether it were born alive or not, but be concealed: in every such case the said mother so offending shall suffer death as in the case of murther, except such mother can make proof by one witness at the least, that the child (whose death was by her so intended to be concealed) was born dead.
With this law, these women are branded as lewd women, with no hedging or alleging noted. The crime per se is cast as a "great mischief," that the law seeks an end to. But the dramatic content change is that the circumstantial fact of concealment, which could be (and had been) interpreted generously for the potential defendant, becomes a presumptive fact of murder unless rebutted by at least one witness. The Jacobean infanticide law of England spread to New England, and court decisions on both sides of the Atlantic turned harsher, with "a leap of indictments and a still steeper climb in the percentage of guilty verdicts" (Hoffer & Hull, 1984, p. x), a trend that begins from Elizabeth I and continues until the first decades of the eighteenth century. Certainly, "rendering the concealment of the death of a newborn bastard presumptive evidence of murder" (Hoffer & Hull, 1984, p. x) made it much easier to prosecute, but sentiments on motive and culpability were turning harsh as well, for evidence of concealment is translated into evidence of premeditation. Moreover, the breakdown of traditional societal norms and values had effects not just on legal attitudes but also on social, economic, and cultural life, and as a consequence, enmity for immoral women grew. This is dramatically evident in Hoffer and Hull's numbers from court decisions in Massachusetts from 1624 to 1730, where 17 out of 31 (55%) infanticide cases resulted in murder convictions, whereas the conviction rate for murder of adults from 1630 to 1692 was only 40% (18 of 45 cases). Although similar conviction rates were also found in England during this period, this measure hides important variation because it aggregates all cases. One variable that the archival analysis pulls out is the age of victim, and in 94% of the
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cases during this period (Hoffer & Hull, 1984, p. 54), the victim was less than 1 day old. When the infant was older, the conviction rates were higher. This factor, which we designate as time in our research, becomes our first variable, for jurors seem to be discriminating neonaticide from filicide cases. But why is this so? Perhaps the closer the death is to the birth, the more it looks like a very-late-term abortion, which Sir Matthew Hale sharply distinguished from infanticide: If "the child was killed before it was fully removed from the vaginal cavity . . . 'it was no felony,' for the child was not 'in rerum nature?" (Hoffer & Hull, 1984, p. 155). A second possible reason for conviction rate differences with time may be because citizens attributed greater depression to the mother right at birth, in contrast to what they might attribute 1 week later or 3 months later. Still another possible reason relates to manslaughter: If citizens liken the case to manslaughter (where birth is analogized to the provocation) and believe that the woman's emotions (e.g., fear, shame, embarrassment) run hotter at birth (but cool by 1 week and cool much more by 3 months), then jurors might see more deliberation and premeditation in filicide cases compared with the emotionally driven neonaticide cases. Returning to the historical account, in Massachusetts infanticide cases occurring after 1730, convictions dropped to 13% (4 of 30), and such a sharp and steady decline continued well into the next century in English case law as well. This decline, however, cannot be attributed to some artifact, such as the overall decline in conviction rates for murder in general: Although there was a general decline, chiefly because manslaughter became an option for many cases that previously would have been prosecuted as murder, the manslaughter option was not available for infanticide cases, for manslaughter's prerequisites (e.g., Finkel, 1995a; Fletcher, 1978; Singer, 1986) did not fit infanticide cases. Moreover, infanticide conviction rates dropped faster than overall murder conviction rates despite the fact that these defendants did not have manslaughter's mitigating option. Because infanticide's decline was sharper than that for overall murder, and because manslaughter's mitigation cannot account for it, community sentiment changes are presumably at work. In this long leniency period, a number of factors changed. First, economic and material conditions improved. Second, illicit sexuality grew (i.e., by 1775, premarital pregnancy rates were at 40%, which was twice as high as they were in 1725), but so too did tolerance for illicit sexuality, as bastardy became a less stigmatized condition. And third, a romantic sentimentality was growing in the community (and then later in the law), as were signs of nullification, partial nullification, and lenient prosecutorial discretion (Finkel, 1995b). Hoffer and Hull (1984) stated that "juries grew unwilling to condemn suspects, especially upon mere proof of concealment of birth," and that magistrates and officials were giving more "merciful rulings on evidence of stillbirth" (p. 65). Not only were concealment and stillbirth being construed much more favorably for the defendant, but new factors were being considered that worked to mitigate or nullify the crime, and these involved a growing solicitousness of mothers and a greater attentiveness to "maternal sentiment" (Hoffer & Hull, 1984, p. 66). For example, there was a "benefit-of-linen" (p. 69) defense: If it could be shown that the single woman had made linen for her infant before its birth and hence preparation for the child, then this was evidence of maternal sentiment, and
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the death and concealment: would be more favorably construed. The "want-ofhelp" defense was also used to favorably construe deaths at birth as tragic accidents. But the growing trend that we are most interested in involved leniency for temporary "fits," in which women went "out of their senses," (Hoffer & Hull, 1984, p. 70), for such mental incapacitation or temporary insanity defenses were on the rise, and this enters our research as a second independent variable, designated as depression. Sentiments about the cluster of women, pregnant women, childbirth, emotions, and premeditation entered the 1772 legislative debate of a bill by Edmund Burke and Charles Fox to repeal 21 James I c. 27, although the resolution failed to pass Commons. Sentiments entered the legal writings of Blackstone and Michael Foster, the latter of whom noted that "From the delicacy of their Frame [women] seem to be the most susceptible of Human Passions" (Hoffer & Hull, 1984, p. 87), thereby setting up a claim that the law discriminated against the weaker sex. Though the law was not ready to change, community sentiment appeared to flout the law. Put another way, commonsense justice seemed to buy the notion that depression and unsettling passions associated with child bearing took this crime out of the murder and manslaughter categories and brought it much closer to insanity. Of course, as fathers had none of this real or romanticized biology going on (i.e., with postpartum claims being ludicrous for male perpetrators), their conviction rates for infanticide were much higher all along. Because the gender difference is well documented, we chose to have only female defendants in our experimental work. From the tables that Hoffer and Hull (1984) have presented, we also find our other two variables, age and manner. In general, conviction rates are lower as the age of the defendant is lower, and we tested this experimentally by varying the age of the defendant (14, 19, and 26). Moreover, the conviction rates are lower if the woman is single as opposed to married, and thus all of our defendants were single. Finally, Hoffer and Hull reported that evidence of bruises or cuts (i.e., signs of violence) on the dead infant significantly increased the percentage of convictions. We chose to manipulate the manner of the death from least violent to most violent, going from a desertion to strangulation to a bashing of the skull, followed in all cases by concealment of the death in the same way. This is a foreshortened history, as Dobson and Sales (2001) detailed the last two centuries of legal changes and empirical findings of infanticide. Instead of repeating that ground, we move to current climate and sentiment, where the prevailing lenient winds of the past may be changing as signs of severity are discerned.
II. A Change in the Climate?

In general, crime control is in the ascendancy, and this is manifest in many ways. State legislatures and Congress have passed bills that (a) establish new crime categories; (b) set steeper sentences for crimes in general and for repeat offenders in particular (e.g., "third strike" provisions); (c) set mandatory minimum sentences, or set them at higher levels; and (d) widen the applicability of the death sentence to more offenders and offenses. This has been called the "steeper-
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firmer-deadlier" trend (Finkel, Maloney, Valbuena, & Groscup, 1996). But this is not all. Legislatures have made it easier to prosecute juveniles as adults, while making it harder for judges to use their once formidable discretionary power in sentencing. Judges are now tightly bound to sentencing guidelines, having to justify downward departures or face possible appellate reversal if they cannot. Whereas it appears as if legislators are leading the law and judges in this harsher direction, legislators may be taking their lead from public opinion polls. Those polls indicate that community sentiment continues to favor the "get tough" approach, despite the fact that the percentage of Americans in prison is at an all-time high and despite the fact that levels of violent crime continue to drop. It is known that community sentiment exerts an indirect effect on sentencing (i.e., through its effect on legislative enactments), and this is evident because legislators are frank to admit it, as the earlier quote from Senator Lugar about being "a hyper weather vane" illustrates. But in addition to the indirect effect, community sentiment has a direct effect when citizens become jurors, and particularly when they have the opportunity to make the sentencing decision, as they do in death penalty cases. Using the "death sentences given" gauge as one of the objective indicia, as the Supreme Court does, the rising number of death sentences given further suggests that the leniency period is over. Moving closer to infanticide, particularly if it is cast as "temporary insanity," there is substantial evidence from opinion polls and mock juror studies (Finkel, 1995b) to show that citizens are highly suspicious of insanity claims, and the percentage of actual acquittals on grounds of "not guilty by reason of insanity" (NGRI) is low. Moreover, even with an NGRI verdict, a lengthy incarceration typically follows (Silver, 1995). Looking at claims of depression, whereas the historical account shows that this factor once led to leniency, there are reasons to suspect that this may no longer be so. With the prevalence of depression being high today (e.g., Rosenhan & Seligman, 1995), most people know someone (or are the someone) who suffers from it, and thus personal familiarity is heightened. Then there is the fact that this disorder is one of the most talked about and written about in the recent era, and thus, through media dissemination, citizens' knowledge about depression increases even more. However, although depression may be all around, unlike clinicians working in hospitals, most people are not likely to be exposed to the very rare (0.2%) psychotic form of depression (Dobson & Sales, 2000). If the sample of depressives that ordinary people are exposed to is skewed, then the lay prototype may picture depressives as not psychotic, as able to tell right from wrong, and as able to control their impulses and actions to comport with the lawthereby precluding a successful claim of madness. If current trends regarding insanity and depression work against leniency, the abortion and adoption options may work in that direction as well. Unlike older times, abortion is now generally safe, easily available, and legalized; and even if the woman chooses to carry to term for whatever reason, the public is aware that there are many couples desperately seeking to adopt. If jurors believe that options were available but not taken by the defendant, this can lead to more punitive sentiments and a judgment that the killing was a deliberate choice, fitting more into the murder categoiy.
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There is still another factor, this one legal, that may work against mitigating infanticide. As stated earlier, it is hard to square infanticide with manslaughter. For one, infanticide does not involve the typical sort of manslaughter provocations (e.g., chance medley situations, assaults, batteries, in flagrante, adultery situations) that typically arise suddenly. "Birth" is not a classic manslaughter provocation, and even if it is cast that way, its long lead-time contravenes Lord Coke's "upon a sudden" distinguishing characteristic of manslaughter (Finkel, 1995a). Thus, citizens may not be inclined to mitigate in manslaughter's directionwhen emotions that could have been anticipated, and where other options appeared to exist. If manslaughter is a low probability verdict, and if exculpation to madness is low as well, then murder might be the default option. Still, we have to consider another influence that on balance seems to be pushing prototypes and community sentiment toward severity. Here we speak of the media. Two examples illustrate, both of which are taken from a newspaper editorial entitled "Killing Babies" (1998): "The combined lesson of two court decisions Thursdayone in Maryland and one in Delawareis that killing one's baby will, first, bring scant punishment and, second, will not be deemed subsequently to preclude future custody over children." These legal cases are transmuted into "media cases," where the message to the public is conclusively normativethat the punishments and consequences are too light. When we hear on the nightly news and read in our print media that Amy Grossberg and her former boyfriend, Brian Petersonwho killed their baby, dumped it in a trash bin, and sought to conceal itare sentenced to 2 1/2 and 2 years, respectively, what are we to think? When that story is coupled with that of Latrena Pixley, who smothered her infant daughter Nakya (who ended up in a dumpster), and who received a sentence of weekends in detention for 3 years, and was then granted custody of her 2-year-old son, what are we to think? When a judge finds an absence of common sense and calls for a harsher presumption, and the story is picked up by the media and reported to the public, what are citizens to think? As the examples show, these are far more than stories reporting "just the facts": there is a spin to the facts and a conclusion to the message, and both are in the decidedly harsh direction.
III. Where Commonsense Justice Stands Method

Participants. For our experimental investigation of infanticide, we recruited volunteer college students (N = 75) from an Abnormal Psychology course at an eastern university. There were 52 women and 23 men, with an age range of 18-22 years, and a mean age of 19.8. Although these participants were not representative of jurors on many dimensions, fidelity (i.e., ecological validity) to the legal situation was not our concern in this work. Rather, this investigation was focused on the prototypes and commonsense understanding of infanticide that this participant group possessed, and our methodology was aimed at providing wide latitude so that commonsense notions would emerge in all their nuance. With that aim, we provided participants with a wider range of verdict options than they would get in a typical jury trial, and we asked them for sentencing decisions, and reasons for their decisions, that would not be tapped in legal cases; and to push for nuances and discriminations quite beyond what a single trial would afford, there was the within-
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subject part of our design, where participants made verdict and sentencing decisions on nine cases. There was still another reason for using this participant age group, drawn as it was from this particular class. In prior years, through a number of experiments using similar participants, we had data on a variety of cases involving premeditated murder, felony murder, juveniles who kill, self-defense, manslaughter, mistake, accident, insanity, euthanasia, and more, where all the verdicts used here (e.g., first-degree murder, seconddegree murder, voluntary manslaughter, involuntary manslaughter, guilty but mentally ill [GBMI], and NGRI) were used there. Those prior findings provide a loose context for evaluating the question in our subtitle: Will infanticide be viewed as murder; will it look like manslaughter; does it resemble, because of the depression element, madness cases that might lead to a GBMI or NGRI verdict; or will it be seen as something distinct (miscellaneous)? Materials and procedures. Participants were randomly assigned one of nine booklets (3 levels of time X 3 levels of depression), which they had a week to complete, and all booklets begin with the same introduction and instructions. Participants are told, in the introduction, that the Law recognizes distinctions when it comes to an unnatural death or a killing and that different crime categories (e.g., first-degree murder, second-degree murder, manslaughter) reflect different levels of culpability. They are also told that when the State brings a first-degree murder charge against a defendant, the defendant may counter with a different claim. For example, a defendant may claim that it was an "accident" or a "mistake," or the defendant may raise a mitigating, exculpating, or justifying defense, such as "heat of passion," "insanity," or "self-defense." They are then told that in the following case (State vs. Ms. X), the prosecution claims that the defendant committed first-degree murder, and the defendant claims that the crime was "infanticide." They are then instructed to read the basic case facts, which apply to all of the nine variations, to then read the nine variations, and to then render verdicts for all variations, rank order the variations from most blameworthy to least blameworthy, and give a sentence for the defendant for each variation. In the basic case, State vs. Ms. X, the two between-subject variables (each at 3 levels) are manipulated, with the time manipulation occurring in the first sentence and the depression manipulation occurring in the last paragraph. It goes as follows:
The State has brought a charge of first degree (premeditated) murder against the defendant for the unlawful killing of her child, who was [less than 24 hours old (Tl), 1 week old (T2), 3 months old (T3)]. The State intends to show, through evidence and testimony, that the death was unnaturala killing. The State intends to show, through evidence and testimony and reasonable inference from the facts, that Ms. X had malice aforethought that she knew that her actions would most likely lead to the death of the child. Finally, the State intends to show that Ms. X had ample time to plan and think through her actions, and did so, making this a premeditated killing, and thus first degree murder.
The next paragraph begins this way:

The Defense contends that Ms. X was suffering from a depression, resulting from the effects of giving birth, a postpartum depression. The Defense's witnessesfriends, family members, and [teachers (for the 14- and 19-year-old; co-workers (for the 26-year-old)] testify that Ms. X hid the fact of her pregnancy, withdrew from family and social contacts, avoided normally pleasant contacts and events, and that her [grades, or work performance] started droppingall signs of depression.
The State, through its cross-examination of those witnesses, argues that Ms. X continued to function in family, social, and [school or work] situations, and if she was depressed, it was not a severe clinical depression, and not at the level of psychosis. Moreover, the State frames her secretiveness and withdrawal as consistent with planning
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the murder and hiding the plan and the fact from all, whereas the Defense frames those facts as consistent with denial, a primitive defense mechanism, indicating that this Defendant was not thinking clearly at all, let alone acting in some cold-blooded fashion to plan a murder. For our depression variable, at our lowest level (Dl), the basic case ends there. For the next two levels (D2 and D3), where an expert testifies, there is an additional paragraph. For D2, it reads as follows:
The Defense called an expert witness, a psychiatrist, who testified that the defendant was suffering from a postpartum depression, which is a serious, or clinical, type of depression. On cross-examination, the psychiatrist acknowledged that many women suffer postpartum depression but very few kill their young. Moreover, the expert admitted that the defendant was not psychotic. The Defense contends that her mental and emotional states were significantly impaired at the time of the act, while the State argues that she knew right from wrong, and knew what she was doing.
For the D3 condition, the same D2 testimony occurs, but now the expert goes further, stating that Ms. X was psychotic at the time of the act. On cross-examination, the expert does hedge under questioning, acknowledging that psychotic individuals have their lucid moments and that he could not be absolutely positive that she wasn't acting in such a lucid moment. The within-subject variables, age and manner (of death), were manipulated in the following nine vignettes, which were randomly arranged in the booklet following the basic case. The age variable (3 levels) was the simplest, as the defendant was either 14 (Al), 19 (A2), or 26 (A3), and all defendants were living with their parents at the time of the act. For the first level of manner (Ml), the defendant walks to an abandoned gas station, where she deserts the child by putting it into a dumpster; for M2, she suffocates the baby with a pillow, and then the rest of the story is the same as Ml; for M3, she repeatedly strikes the baby's head with a blunt object, causing death, and then the rest of the story is the same as Ml and M2. These vignettes also tie up a loose end regarding our time manipulation: To keep the living arrangement constant (i.e., all defendants living with their parents) and to retain a certain plausibility, in the Tl conditions, the defendant leaves the house right after the birth, and the parents are not aware of the birth, but for the T2 (1 week) and T3 (3 months) conditions, the parents know of the child, but she leaves the house or does the killing without their awareness. There was then a "Verdict Options" sheet in the booklet, with seven options provided. The first four were "first degree murder" (FDM), "second degree murder" (SDM), "voluntary manslaughter" (VM), and "involuntary manslaughter" (IM), with standard instructions provided for these. For the "guilty but mentally ill" (GBMI) option, we used Michigan's definition. For the "not guilty by reason of insanity" (NGRI) option, we used the Insanity Defense Reform Act (IDRA) test. The seventh option was "other," where, if the participant chose this option, there was a space to identify what that verdict was. The final sheet in the booklet, "Verdicts, Rankings, Sentences, and Reasons," asked the participants to enter their verdicts for the nine vignettes, rank the nine cases from most to least blameworthy, and to set a prison sentence (in years), where they could go as low as "0" or as high as "life." Moreover, there was space to detail other sentencing recommendations. Finally, if their verdicts changed across the nine vignettes, they had to detail their reasons for each verdict change.
Results and Discussion Verdicts and rankings. With 75 participants making nine verdict decisions, we had a total of 675 verdicts. Beginning at the harsh end, FDM verdicts turned out to be the most frequently given verdict (40%), with SDM verdicts being next
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most frequent (24%); if we combine the two, then 64% of the verdicts are for murder. At the most lenient end, "other" (where all were "not guilty" verdicts) and NGRI turned out to be rarely given verdicts, each accounting for only 0.4% of the verdicts, whereas GBMI accounted for 14%; to run a chi-square analyses without violating its assumptions, we combined "other" and NGRI into the GBMI category. And in the mitigating manslaughter range, there were 12% VM and 9% IM, and we decided to combine the latter into the former, which then represented 21% of the verdicts. How do verdicts distribute on the between-subject variables? The main effect for time is not significant, ^(6) = 9.92, p = .128, although there seems to be a trend where FDM verdicts increase across time as SDM decreases, while GBMI and VM hold fairly constant (see Table 1). For depression, there is a significant main effect, x*(6) = 23.49, p < .001, but it is not the pattern we predicted: We assumed that FDM verdicts would decrease as depression increased (i.e., Dl > D2 > D3), but this did not occur; whereas FDM verdicts are lowest at Dl, they then rise to their highest point at D2 and then drop to a midway position at D3 (see Table 1). Where FDM verdicts are mitigated by a GBMI increase at D3, at Dl, the mitigation results from an increase in VM verdicts. These fluctuating changes indicate a Time X Depression interaction effect (see Table 2), which is significant, ^(24) = 62.37, p < .001. Across the levels of time, there seem to be three different verdict patterns for the Dl, D2, and D3 conditions, which are best explicated individually. Starting with the D3 group (postpartum plus psychoses), at Tl we find that their FDM verdicts are the lowest, and that their GBMI verdicts are the highest, of all the D groups, and this is what we expected; moreover, their SDM verdicts are highest overall, with VM verdicts about equal to GBMI verdicts. Continuing with the D3 group at level T2 (i.e., the death occurring 1 week after birth), the FDM verdicts almost double, GBMI and
Table 1 Numbers (No.) and Percentages of First Degree Murder (FDM), Second Degree Murder (SDM), Voluntary Manslaughter (VM), and Guilty but Mentally III (GBMI) Verdicts, for the Three Levels of Time and Depression
Verdicts
FDM
Variable Timea Tl T2 T3 Total Depression13 Dl D2 D3 Total
SDM % No. % No.
VM
%
No.
GBMI No. %
74 96 98 268
34 41 43 40
66 46 49 161
31 20 22 24
44 51 47 142
21 22 21 21
31 41 32 104
14 18 14 15
72 101 95 268 a The main effect for time significant,/? < .001.
34 54 25 47 26 56 21 39 51 40 24 161 was not significant. The
61 28 28 13 24 11 36 17 52 21 45 19 21 104 142 15 main effect for depression was
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Table 2 Numbers (No.) and Percentages of First Degree Murder (FDM), Second Degree Murder (SDM), Voluntary Manslaughter (VM), and Guilty but Mentally III (GBMI) Verdicts for the Time X Depression Effect
Verdicts
FDM SDM
VM
% 34 6 21 28 18 18 24 23 15 21 .001.
Condition" No. T1D1 23 T1D2 30 T1D3 21 T2D1 21 T2D2 38 T2D3 37 T3D1 28 T3D2 33 T3D3 37 268 Total 'The Time X Depression
% No. % No. 37 16 26 21 48 20 32 4 23 30 33 19 26 20 25 23 53 15 21 13 51 11 14 15 39 18 25 17 40 21 26 19 51 14 10 11 40 161 24 142 interaction effect was significant, p <
GBMI No. 2 9 20 17 6 18 9 9 14 104
% 3 14 22 21 8 22 13 11 19 15
VM stay at roughly the same levels, and SDM verdicts precipitously drop. Thus, premeditation (i.e., the element of FDM not found in SDM) is much more likely to be construed at T2 than at Tl. Continuing onto T3 (the death occurring 3 months after birth), FDM verdicts rise again, while GBMI, SD, and VM either fall slightly or stay the same; now, with much more time between birth and death, this seems to convince even more participants that premeditation occurs. Doing the same across-time analysis for the D2 group reveals substantial differences from the D3 pattern. At Tl, the D2 group's FDM verdicts are substantially higher than those for all other D groups, and their SDM verdicts are high, while their VM and GBMI verdicts are fairly low; taken together, this D2T1 condition produces approximately 80% murder verdicts, as this combination is not seen as either a moment-of-passion act (VM) or some depression-leading-tomental-illness act (GBMI). At T2, the pattern begins to change: FDMs increase higher and VMs rise, but SDMs and GBMIs drop; again, we are not seeing mitigation via the mental illness route. At the T3 level, FDMs drop somewhat and SDMs rise somewhat, while GBMIs and VMs hold roughly constant. The pattern suggests that the vast majority of D2 participants were not swayed by postpartum depression claims at any T level; perhaps the nonpsychotic nature of this depression (brought out in prosecution's cross-examination of the expert) is telling. However, the results from Dl are different, and puzzling, for in this group there was no expert testimony, just an allegation of depression (with "symptoms" that were construed by the defense and prosecution quite differently). Yet, at Tl, this group has fewer FDMs than does D2, but more than D3, while VMs are the highest of all groups. Thus, when mitigation occurs, it is not seen through the depression (GBMI) route but more as an act-of-passion situation (VM). Yet, if the death occurs a week later, at T2, the pattern dramatically changes: FDMs drop and GBMIs increase significantly, as the mental illness factor takes on much greater importance as a mitigator. But at T3, the pattern changes again: While SDMs
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remain at the same rate across the time span, FDMs rise noticeably, and this is accounted for by the drop in the two mitigators, a lowering of GBMI and VM verdicts. Now, at 3 months, the Dl participants do not see either the mental illness factor or a claim of manslaughter as being very relevant here. When these patterns are taken together, we see qualitatively different patterns resulting at the different Time X Depression levels, suggesting that participants are construing these combinations of mental state and death times differently, which further suggests that different prototypes arise and that different stories are being spun. The two within-subject main effects, age and manner, are highly significant. For age, A^(6) 48.63, p < .001, the primary distinction separates the 14-yearold from the 19- and 26-year-olds, as the former has much fewer FDMs than do the latter two groups (see Table 3). Put simply, the 14-year-old is given a leniency break because she is seen as less competent, as more frightened and overwhelmed, and as having fewer options than the older defendants. By 19 years of age, however, the participants' views change, and this defendant is treated much like the 26-year-old, quite competent to do otherwise. For the 14-year-old, the mitigating is done through GBMI, which results three times more frequently at the youngest age than at the older ages. For manner, ^(6) = 62.36, p < .001, the pattern is the expected one: As the manner of death gets more active and violent, FDMs increase (e.g., M3 > M2 > Ml), and this effect can be seen in Table 3. Unlike with the age variable, the manner variable is mitigated by GBMI, not VM, verdicts (e.g., Ml > M2 > M3). When age lowers to 14, participants see this high school student as more overwhelmed by her emotions and situation, less capable and competent to cope, and thus as acting under some degree of mental illness; when manner lowers to suffocation and then further to abandonment, participants are less inclined to see
Table 3 Numbers (No.) and Percentages of First Degree Murder (FDM), Second Degree Murder (SDM), Voluntary Manslaughter (VM), and Guilty but Mentally III (GBMI) Verdicts for the Three Levels of Age and Manner Verdicts VM GBMI FDM SDM Variable No. % % No. No. % No. % Agea
Al A2 A3 64 96 108 268 56 90 122 268 28 43 48 40 35 40 54 40 48 62 51 161 52 63 46 161 21 28 23 24 23 28 20 24 50 47 45 142 78 42 22 142
b
Total Mannerb
Ml M2 M3
1
22 21 20 21 35 19 10 21
63 20 21 104 39 30 35 104
28 9 9 15 17 13 16 15
Total The main effect for age was insignificant, p < .001. significant,/? < .001.
The main effect for manner was
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murderous intent but are more likely to see this act as being propelled by emotions. However, whereas the pattern in manner appears straightforward, there really are two distinct patterns at Ml, which we learn about through participants' reasons for their verdict shifts. To explicate, many participants construe the deserting of a child in an abandoned garage dumpster as not having the intent to murder; this lenient interpretation (VM = 38%) holds out the possibility that the infant might have been found and holds out the intentional possibility that the defendant wanted the baby to be found. However, other participants construe this deserting quite differently, and harshly (FDM = 25%), citing "the long walk" to the dumpsterwhich meant to them that she had time to think and time to choose another option; moreover, because she doesn't pick the steps of a church (or some other public place) to leave the child but instead picks a deserted garage dumpster (where the infant was not likely to be found and would probably freeze to death), these participants infer murderous intent. Our participants were asked to rank the nine vignettes (Age X Manner) from most to least blameworthy, and their rankings are significantly correlated (Kendall's T .512). In general, the manner effect determines the order, but age (i.e., the leniency for the 14-year-old) rearranges the ordering somewhat. From most blameworthy to least, the order is A3M3, A2M3, A3M2, A2M2, A1M3, A1M2, A3M1, A2M1, A1M1. Although gender was not one of our selected variables for manipulation in this experiment, we did look at gender because, given a basic infanticide case with all female defendants, and with alleged depression related to the postpartum condition, there are a variety of reasons (i.e., greater identification with the same-gender defendant, greater knowledge of childbirth and depression) to suspect that gender differences between participants might translate into verdict differences. There is a significant gender difference, ^(3) = 16.54, p < .001, but not in the direction we anticipated: On the average, women gave the harshest FDM verdict more than did men (44% vs. 30%), whereas men gave the more lenient and mitigating GBMI (20% vs. 14%) and VM (28% vs. 18%) verdicts. Further examination of the gender effect on our four variables requires a note of caution, for the number of male participants in some of the specific cells is low. For the time variable, women's FDM verdicts show a curvilinear pattern from Tl to T2 to T3 (31%, 52%, 47%), whereas for men, these verdicts fall (40%, 29%, 0%), with GBMI and VM increasing; with increasing time, men attribute less and less premeditation, whereas for women, premeditation increases. For depression, at Dl, the female (30%) and male (38%) FDM rates are not far apart, nor are the SDM, VM, and GBMI rates. At D2, however, the FDM rate for women rises dramatically to 54%, and their VM rate falls dramatically; for the men, the FDM rate falls dramatically to 8%, being compensated for by rising SDM and VM verdicts; at D3, the female FDM rate decreases somewhat to 43%, whereas the male rate jumps to 32%, still lower than the female rate. Yet, their GBMI also jumps to 33%, more than twice that of the women. This evidence suggests that men and women have differing prototypes of female infanticide cases, culpability, and depression, which further varies by the level of depression; this difference is both quantitative and qualitative in character. Finally, a quantitative difference occurs for age and manner, where women
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give a higher percentage of FDM verdicts than do males for all age levels and manner of death levels, whereas men give the higher percentages of VM and GBMI verdicts. Taken together, women render the harshest verdict (FDM) more frequently across variables, for each particular variable, and for levels of particular variables, whereas the reverse is true for the mitigating variables related to passions and mental illness. Quite apart from this quantitative difference, there is a qualitative difference when it comes to construing and judging Depression X Time: Men and women construe the defendant's mental state, intentions, and emotions quite differently, reaching distinctly different verdict judgments. Sentencing and disposition. Regarding the sentencing findings, there is no significant effect for time, but there are significant main effects for depression, age, and manner, which duplicates what we found for verdicts. In addition, three interaction effects are significant: Time X Depression, Age X Depression, and Age X Manner. The sentences data are shown in Table 4 for the nine betweensubject conditions (Time X Depression) and across the nine within-subject (Age X Manner) conditions. Before detailing the specifics, we start the analysis at the broadest level, where the mean sentence length across all cases and conditions is 19.7 years, with a median value of 17.0 years and a modal value of 20 years. These central tendency measures of sentence length for these infanticide cases do not look like what researchers typically get for premeditated murder cases (FDM) where an adult is killed. Supporting this disparity are the variance measures, where the sentence range is from 0 to 63 years imprisonment and where the standard deviation is 16.6; this is an extraordinarily wide range (e.g., where 10% give a "life" sentence, but where 7% give "0" years for the sentence), indicating that these cases are not seen uniformly by participants. For the three levels of time, the sentences from Tl to T3 are 22, 20, and 19 years, respectively, a nonsignificant difference. For the three levels of depression, which was significant overall, the sentences for Dl to D3 are 20, 22, 18 years,
Table 4 Mean Sentences (in Years) for the Time X Depression Groups, Across the Age X Manner Conditions
Age X Manner within-subject conditions Between-groups A1M1 A1M2 A1M3 A2M1 A2M2 A2M3 A3M1 A3M2 A3M3 11 T1D1 8 18 18 27 42 18 43 29 T1D2 17 22 18 25 33 23 36 13 29 11 12 14 T1D3 6 13 17 23 28 29 11 T2D1 13 23 23 30 28 32 10 39 T2D2 18 20 14 21 21 24 12 37 36 14 T2D3 8 8 13 20 12 17 25 5 11 T3D1 10 13 17 6 25 9 16 19 T3D2 12 17 18 19 19 23 18 20 25 21 T3D3 12 15 17 22 25 25 28 35 Note. Reading across the columns reveals the age effect and the manner effect; reading down the columns reveals the depression effect. A = age; M = manner; T = time; D = depression.
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respectively. Whereas sentence length drops for the D3 condition, it curiously rises at T3, thus accounting for the significantTime X Depression interaction effect. Looking at the variance for these between-subject variables, we find that the standard deviations show a Tl > T2 > T3 pattern, revealing more uncertainty and wider disparity for the neonaticide case (when the infant is killed within 24 hr). The standard deviations are larger for Dl and D2 and drop noticeably for D3, indicating greater agreement when the defendant's depression reaches psychotic proportions. For age, the Al to A3 sentences are 13, 22, and 25 years, respecively, and for manner, the Ml to M3 levels yielded 15, 19, and 26 years, respectively; the sentence findings for age and manner parallel the verdict findings. We also found a greater muting of the sentence for the youngest age, which produces the Age X Manner and Age X Depression interaction effects. Finally, we looked at sentencing decisions in a qualitative way because many participants (17%) wrote in "alternative" sentencing recommendations. We situated these decisions into one of three categories, and our categorizing decisions (i.e., interrater reliability) showed almost perfect agreement; we called this dependent variable "disposition." The three categories involved (a) some form of imprisonment and parole, which we considered a penalty within the criminal justice system; (a) mental hospital incarcerations and mandatory treatment sentences; and (c) sentences that combined both imprisonment and treatment. There are large significant effects for the depression and age variables, whereas the manner variable is just significant and the time variable is not significant. The results can be summarized in the following manner. For depression, at level Dl, 83% favored imprisonment, whereas at D2, 39% favored some combination of imprisonment and treatment, whereas at D3, 43% favored just treatment. For the age variable, it is the Al versus A2 + A3 split, where the youngest defendant gets far more pure treatment or treatment plus incarceration sentences, while the latter get imprisonment. For manner, it is the most violent condition, M3, that is much more likely to get pure imprisonment. Their reasons for changing verdicts and sentences across conditions. Because of the nature of our design, participants applied this question about their reasons for changing verdicts and sentences to the nine variations they received (i.e., to the within-subject design and to the Age X Manner conditions). Because each participant was in only one of the nine between-subject groups (i.e., Time X Depression), the participants mentioned those factors only in passing. Regarding M3, the most violent manner of death, words such as cruel, savage, heinous, and very brutal were frequent, and from this physical violence factor comes attributions of intent such as "ill-intent," "malice," and "premeditation." For M2, the suffocating death, we hear different phrases like "out of it," "heat of passion," and "a momentary impulse." From these characterizations come lesser levels of intent. For Ml, the abandonment death, we hear two very different stories and terms. First, and most leniently construed, there is "didn't kill" and "the baby could have been found," although some of these participants also mention "grave risk"; from these factors, they perceive a lower intent level. But second, there are those who construe the matter quite differently and much more harshly, citing "she walked," "she took a long walk," and "she had time to think
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and stop"; from this view, she "had a plan," was "trying to kill," and she "had malice" and "premeditation." Regarding Al for the age variable, a whole host of attributions result: "she was scared," "she panicked at delivery," "she didn't realize what she was doing," "her thoughts were disordered," "she had a poor mental state," "the baby was an object, and she didn't empathize," "she's not mature enough," "she's a baby herself," "she couldn't cope," "she was incompetent," "she was irrational," and "she was suffering from a severe depression caused by having a baby at a young age." This incompetency factor, plus emotions she couldn't cope with, leads to mitigation along VM or GBMI lines. For defendants at A2 and A3, participants tell a story of competence, and the ability to do otherwise, and far more "knowing" and "premeditation" in their intentional attributions.
IV. How Commonsense Infanticide Relates to the Law and to Science An Impressionistic Analysis, Across a Psycholegal Landscape
We now situate these findings in the very wide topical context of alleged murder cases, which have been extensively researched (e.g., Finkel, 1995b; Robinson & Darley, 1995) with the mock juror paradigm (as we do here) and with college-age participants (as we do here). Such murder cases come in great varieties, where defendants are allegedly premeditated murderers, felony murderers, accessory felony murderers, or perpetrators by means (Finkel, 1990; Finkel & Duff, 1991; Finkel et al., 1996; Finkel & Smith, 1993). These vignettes varied whether the alleged murderer is a juvenile, late teenager, or someone in their mid-twenties (Finkel, Hughes, Smith, & Hurabiell, 1994), as we have done here. These cases varied the motive: from hatred and revenge to self-protection and from pecuniary gain to altruistic motives, as in euthanasia cases (e.g., Finkel, Hurabiell, & Hughes, 1993) where a "right to die" and a "right to privacy" can be claimed, analogized to an abortion situation. Cases also vary as to whether accident, mistake, or putative self-defense are claimed (e.g., Finkel & Groscup, 1997b; Finkel et al., 1995) or whether an exculpatory defense such as insanity (e.g., Finkel, 1988, 1995b), a justifying defense, such as self-defense, (e.g., Finkel, Meister, & Lightfoot, 1991), or a mitigating defense, such as manslaughter (e.g., Finkel, 1995a) are put forth. Moreover, many of these experiments provide wider verdict options (e.g., certain lesser offense verdicts, diminished capacity or responsibility verdicts, or GBMI verdicts) than would typically be available at trial. Thus, we have a very wide experimental context into which our infanticide results can be cautiously set. Even with those cautions, our infanticide results do not look like those results for the various murder cases in previous experiments. At the harshest end of our verdict spectrum, the percentage of FDM verdicts for these infanticide cases is much lower than that for ordinary premeditated murder cases, even where juveniles murder. Had we combined our FDM and SDM verdicts (which takes the murder percentage up to 60% overall), this percentage would still be lower than that for most forms of murder, save accessory felony murder. In addition, the infanticide verdicts spread across SDM, VM, and GBMI, showing variability that we usually do not find in the typical murder cases. When we add sentencing and disposition findings to the picture, the "infanticide vs. other murders" contrast is
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even greater: The average sentence length is considerably lower than that for typical murderers, with a not insignificant proportion of participants giving "0" years in prison; and the therapeutic disposition, whether it is recommended as the whole of sentencing or combined with imprisonment, rarely occurs for the typical murder cases. Looking at the most lenient end of the verdict spectrum, our infanticide results find no common ground. The percentage of either "not guilty" or NGRI verdicts was minuscule (less than 1%), so these infanticide cases are not seen as insanity cases. Moreover, not a single participant invoked anything like "accident" or "mistake" or analogized the situation to a late-term abortion leading to some privacy claim about which the law should keep out, as we have found elsewhere in right-to-die and euthanasia cases. Thus, if the typical murder (FDM) pattern does not overlay neatly onto infanticide, there seems to be absolutely no fit at the most lenient end, either through madness (NGRI), "not guilty," or the law's inapplicability over such cases. In our trek across the verdict landscape, looking for a fit for infanticide, we now move to the mitigating mid-range, where we try on VM and GBMI for goodness-of-fit. Staying with the overall results, we find these two verdicts cited 21% (VM) and 15% (GBMI) of the timenowhere near majority; rather, on average, they are selected as the third and fourth verdict choices, respectively, out of four choices. Thus, this impressionistic analysis leads us, by default, to "miscellaneous," for given the wide range of verdicts the participants had to fit their constructions of the cases and the defendants' culpability, their verdict patterns do not resemble "murder," "manslaughter," or "madness." A More Exacting Analysis to the Law and Science of Infanticide The overly-generous-to-a-fault British law creates an infanticide = manslaughter equality, which our participants clearly reject. If participants were analogizing the birth of a child to typical manslaughter provocations (e.g., assault, battery, flagrante), we find no evidence of this in their verdicts, sentences, dispositions, and proffered reasons. Rather, participants were quite aware that childbirth is different in kindbeing a highly predictable event, with a long lead time, and not an "upon a sudden" occurrence. These differences in kind allow for preparation, thinking through options, and for a much greater likelihood of premeditation. Had participants analogized infanticide to manslaughter, we should have found a significant time effect (which we did not), where the Tl neonaticide cases (death within the first 24 hr after birth) should have had a significantly higher percentage of VM verdicts than those at T2 (1 week), which should have been much higher than those at T3 (3 months). Still, in the infanticide literature, the neonaticide versus filicide distinction is made, and the old and more recent archival analyses (Hoffer & Hull, 1984; Resnick, 1969, 1970) show substantial verdict differences between the two. Our results, however, show that this is not principally a time difference. To explicate, time (from birth to death) is a highly confounded measure in the archival data because neonaticide defendants are also significantly younger, more likely to be single than married, more likely to have differing motives (i.e., the abortion-like
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killing of an unwanted child vs. altruistic killings), and may be more psychotic. Hence, we pose the following question: Is it the time factor, or something else? Here is where an experiment can answer what a study cannot, and our interaction effects point to answers. When the neonaticide case is mitigated below the filicides in terms of verdict and sentencing, it is because age and depression and manner mitigate more at that Tl point. When age is interacting with time (the A1T1 situation), the young defendant is seen as more incompetent ("a baby herself), with high emotions, few options, and irrational thinking. When depression (D3) interacts with time (Tl), she is perceived as more "out of it," more irrational. And when the defendant kills by bashing the baby on its head (M3), a factor that significantly aggravates the sentence, it does show a more mitigated effect at Tl than at T2 or T3, a construal far more consistent with irrationality than with premeditation. In our results, we do find a significant depression effect, but it is far from simple or simplistic. Participants do not hear "depression" and immediately translate that into GBMI, for example. Nor do they hear "birth of a child" and translate that into "baby blues," "postpartum depression," or "psychotic depression" and uniformly mitigate toward the leniency end of GBMI. Nor do they hear expert psychiatric testimony of either "postpartum depression" or "psychotic depression" and immediately knee jerk in the lenient GBMI direction. Expert testimony does not uniformly persuade them, for that testimony can be challenged by the prosecution (as it was) and challenged by their own knowledge of depression (as it was), as their reasons make clear. When expert testimony does produce a mitigating effect on verdicts, participants seem to want evidence of psychosis before rendering a GBMI verdict. This is consistent with Dobson and Sales's (2000) analysis of the clinical and epidemiological picture of depression and how the current science connects with, or misses connection with, the law. Our participants show a sophistication about the science of depression in its relation to legal culpability, requiring more than a "baby blues" or "postpartum depression" claim, yet they may be harsher than clinicians in verdict judgments. First, even at the D3 level, the GBMI verdicts never get higher than 22%. Second, there is almost a complete absence (0.4%) of NGRI verdicts, indicating no exculpatory sentiment. And third, our findings do not appear to accord with routine findings in the NGRI and GBMI literature (e.g., Roberts, Golding, & Fincham, 1987), where NGRI and GBMI verdicts typically increase when the act is seen as more bizarre; although a number of our participants actually used the word bizarre to characterize bashing the baby's head (M3), they did not attribute that to madness, for the percentage of GBMI verdicts at M3 was no higher than at M2 or Ml. The conclusion that sentiments are changing in the harsher direction are supported by age and gender effects. Regarding age, there is obvious mitigation for the 14-year-old high school student, but almost nothing is mitigated for the 19-year-old college student, who is treated very much like the 26-year-old working woman. The Al condition is mitigated almost equally by men and women, on grounds of less competence. This attribution of lowered competence for adolescents finds support in other assessments (e.g., Grisso, 1996, 1997; Steinberg & Cauffman, 1996; Woolard, Reppucci, & Redding, 1996). But when we move to A2 and A3 conditions, our female college student participants treat
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both conditions equally, and very harshly, whereas the male college student participants treat the conditions more leniently and with a differential leniency that favors the 19-year-old. Aside from an implication for practicing lawyersif a defense attorney, avoid 20-year-old women on the jury; if a prosecutor, just the reversewhat does the gender finding signify? It shows that female participants are not sympathetically identifying with these female infanticide defendants on the basis of gender; moreover, whatever degree of maternal, lenient sentiment our female participants possess, they are not in any charitable or sisterly mood to extend it to these defendants. Thus, if such feelings were operable in centuries past, it may no longer be so today. Our female participants, many of whom consider themselves second- or third-generation feminists, strongly reject buying into the notion quoted earlier, by Foster, about women being delicate and most susceptible of passions, and therefore needing special handling because they are the weaker gender. These females reject the premise and the Trojan-horse legal "gift," because the consequences of accepting are too severe and ultimately defeating. The male participants, on the other hand, do remit something to the 19-year-old in comparison with the 26-year-old. Whether the male participants' judgments reflect traditional or chivalrous values, or foolish or accurate sentiments, we cannot say for sure; nor can we say for sure whether the female participants' "remit nothing" judgment to the 19-year-old is entirely accurate.
V. Toward Connecting the Dots, Completing the Triangle, and Changing the Law
If actual verdicts in infanticide cases during the nineteenth and twentieth centuries showed leniency, then our data suggest an about-face turn toward harshness, with female participants leading the way. Looking broadly at our data, "commonsense infanticide" ends up being situated very far from British law's position. Although this harsh turn brings commonsense justice closer to the American law's position, citizens do not embrace that position wholeheartedly. The complexity of commonsense justice's position is reflected in the dependent variables, where numerous mitigations of verdict, sentencing, and disposition result, and for different reasons; and this effect comes about because we manipulated just four key independent variables (out of many more that were considered). Said another way, we produced significant verdict shifts as these infanticide cases and conditions changed in their particulars, which affirms the old saw about the devil being in the details. Thus, a devilishly simple conclusion is that infanticide cases are not one single entity or category. One set of conditions might properly lead to a FDM verdict, whereas other sets of conditions might properly lead to SDM, VM, or even GBMI, had we written the cases with a different slant. What we can say is that although the American system provides greater latitude for these differences to potentially lead to more fitting verdicts than the more "one size fits all" British approach, the latitude is not as great as commonsense justice desires. What we are confronted with, on the large canvas, are some old and enduring conflicts between law and commonsense justice over culpability, what factors ought to go into that judgment, and how those factors ought to be construed. One
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conflict, put simplistically, is that commonsense justice grades culpability more finely, situating culpability on a graded continuum, where the law uses discrete categories and oftentimes fewer categories than commonsense would like (Finkel, 1995b, 1996; Robinson & Darley, 1995). A second conflict is that commonsense justice brings a greater number of contextual factors into the assessment. And a third conflict is that commonsense justice construes more subjectively, whereas the law weighs objectivity a bit more. American law has tried to bring the subjective into greater prominence through the Model Penal Code (MFC), and its "extreme mental or emotional disturbance" (BED) illustrates this (American Law Institute, 1962, Section 210.3). Yet this liberal and subjective construction of BED (for it is taken from the viewpoint of the actor) may be too liberal and subjective for commonsense justice, as it leads to a seemingly arbitrary rule and a dichotomous verdict situation (Singer, 1986): If an EED, then there is no premeditation, and therefore it must be manslaughter. If we reflect on our infanticide data in the light of EED, participants could find for an EED for all infanticide defendants, at all age levels, at all levels of time, at all levels of depression, and at each manner of death. If EED was the legal rule to use in judging these cases, we might have found far greater unanimity in verdicts, at the VM slot, paradoxically making British law look good. But assuming our participants were seeing something like an EED operating, the findings clearly show that they were also seeing deliberation and premeditation operating under many conditions, leading them (appropriately, we believe) to render SDM or FDM verdicts. The law's turn toward the subjective, and to EED in particular, illustrates another disconnectthis one between law and science. The science of psychology, from what is known of emotions and cognitions, would not support the EED rule and conclusion uniformly (Finkel, 1995a, 1996), for it is not that simple: Emotions do not always negate thinking, deliberating, and premeditating, and thus some uniform pronouncement about culpability and the fitting verdict far outstrips the science. Regarding the position of science on infanticide (Dobson & Sales, 2001), commonsense justice shows a closer accord to the science, recognizing types of depression but making no automatic rules about depression and culpability. Thus, in our triangular metaphor, the law's point is more removed from both science's point and the commonsense point. There is no quick fix for the problem. If the law laid out more verdict options, which citizens seem to want, such a verdict smorgasbord would substantially up the odds of disagreements and hung juries. The law needs a decision. A jury returning not a decision but a multiple choice answer3 votes for Verdict A, 4 for B, 3 for C, and 2 for Dsimply will not do. Nor will it work to go in the other direction, where some generic verdict of guilty (i.e., there is some culpability) versus not guilty is rendered by jurors, letting the judge do all the sentencing calculations to account for case and condition variations. The nuances of the latter would be determined solely by the judge with little input from the jurya direction not consonant with either the current law or the community's sentiment. This section began with "Toward Connecting . . . Completing . . . and Changing the Law." "Toward" is most salient, at this point, for we have neither connected, completed, nor proposed definitive changes in the law. Perhaps others will see ways of advancing the matter further. In the end, particularly when the
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beginning was infanticide in 1558, community sentiment has evolved, and its roller-coaster ride does appear to be turning sharply from excessive leniency to greater harshness. But from the evidence we put forth, the participants' prototypes and views are grounded in facts and reasonable inferences from those facts as to mental state and intentions, leading to a complex and sophisticated analysis of culpability that is more attuned to the science.
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Received April 5, 1999 Accepted August 14, 1999

Commonsense Judgments of Infanticide

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Psychology, Public Policy, and Law 2000, Vol. 6, No.

COMMONSENSE JUDGMENTS OF INFANTICIDE Murder, Manslaughter, Madness, or Miscellaneous?

FINKEL, BURKE, AND CHAVEZ

FINKEL, BURKE, AND CHAVEZ

I. The Historical Context

FINKEL, BURKE, AND CHAVEZ

II. A Change in the Climate?

FINKEL, BURKE, AND CHAVEZ

III. Where Commonsense Justice Stands Method

FINKEL, BURKE, AND CHAVEZ

The next paragraph begins this way:

FINKEL, BURKE, AND CHAVEZ

SDM % No. % No.

34 54 25 47 26 56 21 39 51 40 24 161 was not significant. The

61 28 28 13 24 11 36 17 52 21 45 19 21 104 142 15 main effect for depression was

% No. % No. 37 16 26 21 48 20 32 4 23 30 33 19 26 20 25 23 53 15 21 13 51 11 14 15 39 18 25 17 40 21 26 19 51 14 10 11 40 161 24 142 interaction effect was significant, p <

GBMI No. 2 9 20 17 6 18 9 9 14 104

FINKEL, BURKE, AND CHAVEZ

The main effect for manner was

FINKEL, BURKE, AND CHAVEZ

FINKEL, BURKE, AND CHAVEZ

FINKEL, BURKE, AND CHAVEZ

FINKEL, BURKE, AND CHAVEZ

FINKEL, BURKE, AND CHAVEZ

Received April 5, 1999 Accepted August 14, 1999

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