Lawprof Katrina Kuh raises an interesting question over at PrawfsBlawg.  While Kuh’s concern is purely sexist, she inadvertently lobs a pitch in our direction.

The reasonable person standard (previously, the reasonable man standard) indexes liability to whether an individual acted in the manner of a reasonable and prudent person under the same or similar circumstances.  In making this determination, fact finders may consider an actor’s physical disability and any special knowledge or skill possessed by the actor (i.e., use the conduct of a reasonable person with the physical disability or knowledge/skill of the actor as the standard), but may not consider emotional or mental disability (including, for example, stupidity). 

If knowledge or skill of the actor, or gender as Kuh would have it, matters, why not stupid?  While no one has ever met the reasonable man (and I refuse to participate in any discussion of the reasonable woman), once we start to make accommodations for the specialized situations of some, why not everyone?  The answer, obviously, is that there will be no rule once this happens.

The issue revolves around sensibilities.  We each have our own, and by definition believe our own to be appropriate.  The sensibilities of corporate CEO (for whom a $6,000 shower curtain is perfectly reasonable) will differ from that of a Salvadorean (legal) immigrant who prays for good weather so he can work cutting grass today and bring home enough money to feed his children.  How much of a commonality, an overlap if you will, can be demanded of the two?

Reasonableness is a critical component of criminal law, increasingly so as crimes either require no mens rea or where intent is imputed by conduct.  It’s judged in the first instance by a police officer.  Then by a prosecutor.  Later by a judge and, when a case goes to trial, by a jury “of his peers,” to the extent that phrase means “breathing”.  At each step, the defendant’s conduct is judged by the sensibilities of these fine folks.  Did he behave the way they would have behaved under the circumstances? 

Or should they expect/demand that the defendant, given his intelligence, situation in life, experiences, behave like them?

This follows along with my thesis on common sense, the notion that we all share some unwritten concept of what’s “right”.  Rather, we all pretend that such a thing exists to enable us to jump to whatever facile conclusions we want without need for explanation, reason, proof.  It’s all just common sense, though each and every one of us sees it differently.

When it comes to sensibilities, we similarly believe that we reflect the norm.  Most of us sleep well knowing that we are perfectly normal, and that our sensibilities are the common thread that binds society and civilization together.  Because every defendant who grew up with a crack-addicted mother, no father, hungry, and with gunshots ringing in the schoolhouse hallways, has the same life-view as the Ivy League law school graduate whose mommy bought him a suit and tie, bought the apples he gave his teachers, made sure he brushed his teeth properly and ate three healthy meals a day.  They see everything the same way, right?

My background is certainly closer to my mythical law school graduate than the defendant, but having spent years trying to explain to defendants why the people in whose hands their fate depends will not share their sensibilities.  They won’t “get it,” at least not from the defendant’s perspective.  And many a defendant doesn’t get it from theirs.  Trying to find common ground after the fact is worthwhile for the effort of making sense of a bad situation, but it does the defendant little good.  Whatever actions got him in trouble in the first place are already done.  Too late to go, “ooohhhhhh”.

While it might be understandable that a defendant who lacks an adequate education, skills or prospects, might be incapable of grasping the sensibilities of the coddled lawyer class, one might suspect that the prosecutor and judge are smart enough, educated enough, worldly enough, to appreciate the sensibilities of the defendant.  Most of the time, no.  It’s not that they can’t grasp the distinction as much as they just don’t care.  Their sensibilities are correct; his sensibilities are wrong. End of story.

In the early days of the crack wars, one of the commonly used indicia of being a drug dealer was having significant amounts of cash secreted in an apartment.   It was certainly true of drug dealers.  Unfortunately, it was similarly true of working people, who neither trusted nor used banks and put their earnings under the mattress.  I argued countless times to young prosecutors that the stash of cash failed to prove that a defendant was a dealer, to no avail.  In their world, normal people just didn’t do that.  Maybe they just had no common sense.