Dangerousness, Disability, and DNA

Abstract

This Article honors three of Professor Arnold Loewy's articles. The first, published over thirty years ago, is entitled Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law is Predicated,' and the second is his 2009 article, The Two Faces of Insanity. In addition to commenting on these two articles about substantive criminal law, I can't resist also saying something about one of Professor Loewy's procedural pieces, A Proposal for the Universal Collection of DNA, published in 2015. A theme that unites all three of these articles is that they appear to be quite radical, at least on first impression. In Culpability, Dangerousness, and Harm, Professor Loewy (Arnie) argues that dangerousness is the predominant explanation for many of our well-accepted criminal law doctrines, despite the fact that in theory "[t]here is virtually no support ... for convicting a dangerous but not culpable offender." In The Two Faces of Insanity, he essentially calls for abolition of the insanity defense, despite recognizing that his proposal "would allow for the conviction of seriously psychotic people, such as Andrea Yates"-a position directly contrary to accepted wisdom about the role of mental disability in the criminal justice system. And his proposal for a universal DNA database, when presented at a previous Texas Tech Law Review Criminal Law Symposium, received an extremely hostile reaction from an audience that appeared to associate it with a police state, a reaction consistent with how most people view the idea.'