divided into the broad categories of justifi cations and excuses. In addition to these defenses, there are also nonexculpatory defenses, such as diplomatic immunity.5 One fi nal area of so-called defenses entails
“exemptions,” those cases in which the actor lacks suffi cient rationality to be deemed a moral agent.6 Although we briefl y address exemptions, our focus in this chapter is on justifi cations and excuses, as these are the defenses that must be understood to assess whether the actor is culpable and therefore worthy of blame and punishment.
Th ere is considerable controversy over how best to understand justi- fi cations and excuses. Some argue that justifi cations are actions that are
“right”; others claim justifi cations entail “permissible” actions.7 Th ere are questions as to whether justifi cations are ultimately based on a con- sequentialist balancing of evils, or whether there is room for deonto- logical considerations.8 Some think that justifi cations cannot confl ict and that an actor’s being justifi ed has implications for what third parties may and may not do.9 Others think that justifi cations simply announce that an act is either permissible for the actor or simply not punishable, with no implications for how other parties may behave.10
Whereas justifi cations are thought to focus on the wrongfulness of the act, excuses center on the blameworthiness of the actor. Th eories
5 See Paul H. Robinson, Structure and Function in Criminal Law 71–78 (1997); R. A. Duff ,
“ ‘I Might Be Guilty, But You Can’t Try Me’: Estoppel and Other Bars to Trial,” 1 Ohio St. J.
Crim. L. 245 (2003).
6 See Michael S. Moore, Law and Psychiatry: Rethinking the Relationship 64–65 (1984);
Victor Tadros, Criminal Responsibility 55–57 (2005).
7 See, e.g., Joshua Dressler, “Justifi cations and Excuses: A Brief Review of the Concepts and the Literature,” 33 Wayne L. Rev. 1155, 1161 n.22 (1987) (noting that self-defense may be per- missible as opposed to “right”); Claire O. Finkelstein, “Self-Defense as Rational Excuse,”
57 U. Pitt. L. Rev. 621, 624 (1996) (“In the criminal law, to call a violation of a prohibitory norm justifi ed is to say not only that it is permissible, but that it is encouraged.”); George P. Fletcher, “Should Intolerable Prison Conditions Generate a Justifi cation or an Excuse for Escape?” 26 UCLA L. Rev. 1355, 1359 (1979) (rejecting permissibility defi nition in favor of a view of justifi cation as right action); Hibi Pendleton, “A Critique of Rational Excuse Defense: A Reply to Finkelstein,” 57 U. Pitt. L. Rev. 651, 665 (1996) (critiquing Finkelstein’s narrow defi nition of justifi cation).
8 See Douglas N. Husak, “Justifi cations and the Criminal Liability of Accessories,” 80 J.
Crim. L. & Criminology 491, 505–506 (1989).
9 See George P. Fletcher, Rethinking Criminal Law 761–762 (1978); Heidi M. Hurd,
“Justifi cation and Excuse, Wrongdoing and Culpability,” 74 Notre Dame L. Rev. 1551, 1553 (1999).
10 See Mitchell N. Berman, “Justifi cation and Excuse, Law and Morality,” 53 Duke L.J. 1, 62–64 (2003).
of excuse also run the gamut. As we discussed in Chapter 1, character theorists argue that an actor is excused if her action is not a refl ection of her settled character.11 Choice theorists, on the other hand, argue that an actor is excused if she lacked the capacity and fair opportu- nity to conform her conduct to law.12 Still other theorists argue that excuses depend on one’s role or on the dispositions the law wishes to encourage.13
Because our approach, at least at an idealized level, eliminates the formal distinctions between off enses and defenses, the terms of the debate shift . Th at is, those who argue that justifi cations are parallel to negating off ense elements, but excuses are equivalent to negating culpability,14 will fi nd that these neat categories have completely disap- peared within our framework. Nevertheless, we believe that much of the current understanding and debate about justifi cations and excuses can be accommodated within our model.
Our model requires an analysis of the justifi ability of the actor’s act.
As we note, culpability is about weighing risks and reasons. An action is not culpable if the actor’s reasons for acting outweigh the risks he foresees. Th us, we need some theory of when reasons do outweigh risks.
Such an analysis is simply another way of understanding justifi cations – an act is justifi ed when, all things considered, it is permissible to engage in what would otherwise be wrongful risk imposition.
Our conception of culpability also encompasses excuses. As we have argued previously, by acting recklessly, unjustifi ably privileging one’s reasons over others’ legally protected interests, one manifests insuffi - cient concern for the interests of others. Th at is, our subjective approach to determining culpability describes the moral vice of insuffi cient concern.15 Excuses, in turn, serve to negate our inference of (or indigna- tion toward) this moral vice.16
11 See Fletcher, supra note 9, at § 10.3.1.
12 See Michael S. Moore, Placing Blame: A General Th eory of Criminal Law 548 (1997).
13 See, e.g., John Gardner, “Th e Gist of Excuses,” 1 Buff . Crim. L. Rev. 575 (1998); Claire O.
Finkelstein, “Excuses and Dispositions in Criminal Law,” 6 Buff . Crim. L. Rev. 317 (2002).
14 See, e.g., Hurd, supra note 9.
15 See also Kimberly Kessler Ferzan, “Don’t Abandon the Model Penal Code Yet! Th inking Th rough Simons’s Rethinking,” 6 Buff . Crim. L. Rev. 185, 212–215 (2002); Kimberly Kessler Ferzan, “Holistic Culpability,” 28 Cardozo L. Rev. 2523 (2007).
16 See Peter Westen, “An Attitudinal Th eory of Excuse,” 25 Law and Phil. 289 (2006).
Excuses get a doctrinal foothold in our theory in two ways. First, by judging the actor’s conduct to be a gross deviation from what a reason- able person would do, our theory already encompasses the realm of rea- sonable actions that are excused, such as those taken because of duress.
Second, the question of whether the actor has consciously disregarded a risk for unjustifi able reasons should take into account the quality of the actor’s deliberations. To the extent that the actor’s rationality is partially or fully impaired, he is entitled to mitigation or a complete excuse.
We devote the vast majority of this chapter to explicating how jus- tifi cations and excuses fi t within our model. We explore the normative questions raised by many of these doctrines. Although we do not answer all of the questions we raise, we show how they fi t within our schema.
At this point, however, we wish to address some preliminary ques- tions. Th ere is signifi cant debate over the nature of justifi cation and excuse, and over the way these doctrines can and should operate.
Because our view radically revises the terrain, we begin by discussing the anticipated objections to our remodeling.
A. EVISCERATINGTHEOFFENSE-DEFENSEDISTINCTION
Some will argue that our model collapses important moral distinctions.
For example, George Fletcher argues that the distinction between off enses and defenses is substantive, not formal. Th e prima facie norm tells people,
“Do not kill,” and then a defense allows people “to kill only when threat- ened with deadly force by another.” Collapsing these two, Fletcher con- tends, is equivalent to treating the unlawful aggressor like a “fl y” because we eliminate the prima facie norm against killing other people.17
We disagree. It is diffi cult to see why an off ense defi nition cannot embody both a prima facie norm and its negation. Off enses are more complex than prima facie norms. Many require mens rea terms that, at least according to some theorists, are not part of the norm itself but part of the grounds for attributing the off ense to the actor. Off enses can also require that the actor’s conduct be, or the actor believes his conduct to be, justifi ed. Indeed, a signifi cant number of laws are risk-creation
17 See George P. Fletcher, “Th e Nature of Justifi cation,” in Action and Value in Criminal Law (Stephen Shute et al., eds., 1993).
off enses, in which we tell people that it is permissible to risk harm for certain reasons but not for others. If, ultimately, the message to citi- zens is that it is permissible to kill culpable attackers, there is no reason why this message, rather than requiring a separate defense, cannot be embodied within the defi nition of the off ense.
B. ELIMINATINGTHEWRONGDOING-CULPABILITYDISTINCTION
A similar distinction that our formulation eliminates is that between wrongdoing and culpability. In our view, the focus of the criminal law should be on whether the actor has committed a culpable act. We do not believe that the criminal law should concern itself with nonculpa- ble harmings, such as when an actor, unaware of the risk of death he is imposing, kills another human being.
Th ose who believe that justifi cations must be understood to be the mirror image of wrongdoing, and excuses the mirror image of culpa- bility, may object that our model confl ates justifi cation and excuse.18 Justifi cations, they claim, are mind independent; excuses, on the other hand, look to the mental states of the actor.
Our theory, however, is perfectly consistent with various under- standings of justifi cations and excuses. Our justifi cation formula is about whether the reasons for acts outweigh risks those acts impose. We excuse those who are substantially rationally or volitionally impaired.
As we discuss later in this chapter, we are also quite sympathetic to the view that justifi cations are objectively defi ned. However, because on our view the criminal law’s concern should be culpability, whether the actor’s conduct is justifi ed because of the facts that actually exist or alternatively because of his beliefs about such facts will not matter because his culpability is not aff ected by any mistaken beliefs. Whether these alternative theories of justifi cation matter in terms of their impli- cations for third parties is a matter we discuss later in the context of self-defense.
Additionally, we doubt that all justifi cations can be understood independently of the subjective mental states of the actor. Consider Ken who decides to kill Leo. Aft er Ken shoots Leo, we learn that Leo was
18 See Hurd, supra note 9; Westen, supra note 16.
about to shoot Ken. Th is problem raises the question of whether Ken must have justifi catory intent. We believe that a proper understanding of self-defense requires that Ken believe that Leo was about to kill him.19 Otherwise, all we have is two bad guys who tried to kill each other, one of whom succeeded.
C. SUMMARY
We believe that culpable action is the proper target of the criminal law.
Although theorists may believe that our formulation elides important distinctions, it does so by bringing to the forefront the most critical question for the criminal law. If a more perspicuous formulation of cul- pability leads to a rethinking of other current categorizations, we are willing to accept this result.