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Personal Identity in the Criminal Law University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2018 Patty Hearst Reconsidered: Personal Identity in the Criminal Law Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Criminal Law Commons, Ethics and Political Philosophy Commons, Law and Philosophy Commons, Law Enforcement and Corrections Commons, Philosophy of Mind Commons, and the Public Law and Legal Theory Commons Repository Citation Ferzan, Kimberly Kessler, "Patty Hearst Reconsidered: Personal Identity in the Criminal Law" (2018). Faculty Scholarship at Penn Law. 2326. https://scholarship.law.upenn.edu/faculty_scholarship/2326 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. Patty Hearst Reconsidered: Personal Identity in the Criminal Law Kimberly Kessler Ferzan* I cannot imagine that there is single criminal law professor or student who does not know Joshua Dressler’s name. Between his casebook,1 his treatise,2 and his voluminous publications,3 Dressler’s reach has encompassed the entirety of criminal law (and this is ignoring his similar mastery of criminal procedure).4 Despite the breadth of his reach, Dressler has also always made time to mentor. Somehow he finds the time to read drafts and engage with arguments from the countless scholars across the country who ask it of him. And his advice is both kind and critical. He can see the weakness of a work, but always through a lens of seeing it in its best light. There is much to admire in the systematizing reach of his work, and there is much to praise about the person who Joshua Dressler is. But my goal today is to engage with his scholarship. His work displays the mastery of a trapeze artist. He is able to take on the twists and turns of theory, but he always lands solidly on doctrinal ground. Dressler is willing to take on the difficult question of the day, from battered women to gay panic,5 to devote them to exacting scrutiny, and to * Harrison Robertson Professor of Law, University of Virginia Law School. I am honored to have the opportunity to honor Joshua, who has been a friend, mentor, and inspiration to me throughout my career. Thanks to Steve Garvey for inviting me to contribute, and to Larry Alexander, Mitch Berman, Steve Garvey, Doug Husak, Stephen Morse, John Oberdiek, and Ken Simons for helpful feedback on this manuscript. Michael Corcoran and Chinny Sharma provided excellent research assistance, and thanks to the excellent questions raised by the Virginia law students who attended my work-in-progress session. A much earlier version of this paper was presented at the Boundaries of Rights and Responsibilities in Morality and Law held by the Rutgers Institute for Law and Philosophy in 2006, and I am grateful to the participants there, even if they convinced me to do more thinking and put that early version in a drawer. Given that I wrote a seminar paper on personal identity in 1993, a draft manuscript in 2006, and have now returned to the topic in 2017, I suppose I am quite R-related to my prior self, as I have loved this puzzle for almost twenty-five years. 1 JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW (1994) (2d ed. 1999) (3d ed. 2003) (4th ed. 2007) (5th ed. 2009) (6th ed. 2012) (7th ed. 2015) (co-author, beginning with 6th ed., Stephen P. Garvey). 2 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW (Matthew Bender 1987) (Matthew Bender / Irwin 2d ed. 1995) (Lexis 3d ed. 2001) (LexisNexis / Matthew Bender 4th ed. 2006) (Lexis Nexis / Matthew Bender 5th ed. 2009) (LexisNexis 6th ed. 2012) (LexisNexis 7th ed. 2015). 3 See Joshua Dressler, Curriculum Vitae, http://moritzlaw.osu.edu/faculty-old/cv/dressler_ joshua.pdf [https://perma.cc/H5MQ-5XP6]. 4 Id. 5 E.g., Joshua Dressler, Gay Teachers: A Disesteemed Minority in an Overly Esteemed Profession, 9 RUTGERS-CAMDEN L.J. 399 (1978); Joshua Dressler, When “Heterosexual” Men Kill “Homosexual” Men: Reflections on Provocation Law, Sexual Advances, and the “Reasonable Man” 367 368 OHIO STATE JOURNAL OF CRIMINAL LAW [Vol. 15:367 chart careful doctrinal paths forward. Sometimes those paths are popular, and sometimes not. But he takes the arguments where they lead him. Nowhere is this mastery of playfulness and practicality more on display than in his response to Richard Delgado’s claim that there ought to be a “transferred mens rea” defense for those who are coercively indoctrinated.6 And, keyed to the events of the day, a central figure in the Delgado-Dressler debate was the heiress Patricia Hearst. In arguing that defendants should be exculpated for mental states that were not “their own,” Delgado claimed that victims of coercive indoctrination, like Hearst, cannot fairly be blamed for their actions.7 In response, Dressler argued that Delgado’s theory was woefully over and under-inclusive. If someone is “indoctrinated” into becoming pro-environment, this indoctrinated belief, Dressler argued, should not relieve him of responsibility for killing polluters.8 Conversely, asked Dressler, why should we excuse only those who are coercively indoctrinated? After all, poverty, abuse as a child, and all sorts of internal and external events may lead someone to have a belief or a desire, but causation does not itself excuse.9 As Delgado framed the problem, and then as Dressler fairly responded, the issue was the general question of whether we must be responsible for our beliefs and desires to be responsible for the acts they cause.10 This determinism question is, of course, a perennial and important question, but it is not the only question. Instead, the question I want to ask is one of personal identity. Is there a point in time at which one person is not sufficiently the same person so that she may not be fairly held accountable for her prior actions? If the indoctrinated Hearst became “Tania,” but then, as we are told, converted back to Hearst, is it correct to say that Hearst committed the crimes at all? I fear that my inquiry will spend more time in the theoretical air than on solid doctrinal ground, but I hope, in the spirit of Dressler’s meticulous doctrinal probing, to spend time with a bit of both in this article. Part I briefly sketches the Hearst facts so as to frame the personal identity debate. Part II sets forth the philosophical question of personal identity, wherein I ultimately concur with those philosophers who argue that we may need different conceptions of personal identity for different purposes. Part III analyzes the ways that personal identity Standard, 85 J. CRIM. L. & CRIMINOLOGY 726 (1995); Joshua Dressler, Battered Women and Sleeping Abusers: Some Reflections, 3 OHIO ST. J. CRIM. L. 457 (2006). 6 Joshua Dressler, Professor Delgado’s “Brainwashing” Defense: Courting a Determinist Legal System, 63 MINN. L. REV. 335, 358 (1979). 7 Richard Delgado, Ascription of Criminal States of Mind: Toward a Defense Theory for the Coercively Persuaded (“Brainwashed”) Defendant, 63 MINN. L. REV. 1, 1–3 (1978). 8 Dressler, supra note 6, at 353–54. 9 Id. at 358; see also Michael S. Moore, Causation and the Excuses, 73 CALIF. L. REV. 1091, 1112 (1985) (noting causation is not itself an excuse). 10 See also Thomas D. Nolan III, Note, The Indoctrination Defense: From the Korean War to Lee Boyd Malvo, 11 VA. J. SOC. POL’Y & L. 435, 457 (2004) (accepting Delgado’s argument “would be a substantial step towards courting a determinist legal system”). 2018] PATTY HEARST RECONSIDERED 369 might intersect with doctrine. Part IV then returns to how we might think about the Hearst case through the lens of an “identity defense.” I. THE PATTY HEARST CASE A. Hearst: From Victim to Revolutionary and Back Again On February 4, 1974, nineteen-year-old Patricia Hearst was forcibly kidnapped from her apartment.11 At that time, the Hearst name stood for “[f]ame, wealth, and power on a grand scale.”12 Armed with weapons, members of the Symbionese Liberation Army (“SLA”) blindfolded Hearst, tied her up, threw her in a trunk, and eventually locked her in a bedroom closet wherein she remained blindfolded.13 Hearst’s kidnappers lacked a cohesive vision of why they had kidnapped her.14 At one point, it appeared they wished to arrange for the release of two of their members who were being held pretrial for murder.15 Eventually, the group required Hearst’s parents to arrange for a significant and substantial food giveaway.16 Ultimately, however, Hearst was never exchanged for a ransom.17 Instead, months later, Hearst morphed into Tania, a revolutionary.18 As Tania, Hearst assisted in the robbery of a bank.19 Later, while the group was on the lam, Tania and Emily and Bill Harris, two of her “comrades” (as they called each other), went to purchase living supplies.20 Bill made the mistake of shoplifting, and while being wrestled to the ground by a sporting goods employee with police officer ambitions, Tania took a gun and began firing at the scene, thereby freeing the couple.21 This showdown resulted in Tania and the Harrises fleeing town and dumping the car they had been using; that car had a parking ticket in it that they had intended to pay, and the fateful result was that the police finally had a lead as to where the SLA was located.22 When other members of the SLA were ultimately 11 JEFFREY TOOBIN, AMERICAN HEIRESS: THE WILD SAGA OF THE KIDNAPPING, CRIMES AND TRIAL OF PATTY HEARST 1–9 (First Anchor Books ed., 2017).
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