This article will discuss the historical development of the diminished capacity defense and analyze its current conceptual structure and use in Washington. It will then analyze the most recently proposed bill attacking the diminished capacity defense in this state, Substitute House Bill No. 1179. Should this legislation (or some variation thereof) be enacted in future sessions, the Washington Supreme Court will undoubtedly be forced to review powerful constitutional challenges to the validity of convictions obtained under the new law. At the very least, the court will have to determine whether the diminished capacity defense is constitutionally required. The court will also have to decide whether it should be characterized as a means of negating the mental state of the crime charged or as an affirmative defense. This decision will determine whether the evidentiary burdens of production and persuasion should rest with the defendant or with the State. Finally, the court will have to ascertain whether compulsory commitment of an acquitted defendant following use of a special verdict is constitutional. This article will analyze the fundamental alterations which S.H.B. 1179 proposes in light of Washington case law, federal constitutional requirements, and emerging trends in legislative reform. Finally, we will suggest the probable response of the Washington Supreme Court should the proposed legislation (or some variation thereof) be enacted. In so doing, we hope both to clarify the diminished capacity defense in Washington and to demarcate the permissible boundaries of legislative reform. In our view, many aspects of the legislative proposals to modify the diminished capacity defense are unconstitutional. If any or all of these anticipated constitutional challenges prove successful, a number of criminals convicted after enactment of this bill would be entitled to a new trial. Such result would impose significant burdens on the administration of justice as well as increase the prospect that a number of dangerous criminals would be released from prison or from psychiatric facilities.
John Q. La Fond and Kimberly A. Gaddis, Washington's Diminished Capacity Defense Under Attack, 13 SEATTLE U. L. REV. 1 (1989).