As I mentioned in a recent post, I believe the scholarly debate about whether particular defenses should be categorized as justifications or excuses has little practical utility to offer the criminal justice system. Although I am in a distinct minority (at least three out of the five most cited criminal law and procedure professors are enthusiastic participants in the conversation, as are many other distinguished criminal law scholars), I was comforted by the company: Kent Greenawalt wrote an important paper in 1984, contending that “Anglo-American criminal law should not attempt to distinguish between justification and excuse in a fully systematic way.” And Mitchell Berman wrote a lovely paper in the Duke Law Journal in 2003 entitled Justification and Excuse, Law and Morality, forcefully questioning the focus on justification and excuse, concluding: “To be sure, so long as scholars are going to employ it, it’s important that they should get the distinction right. But whether they should employ it at all is a separate question, one about which I am frankly skeptical.” That these distinguished experts took a contrarian position gave me confidence that the issue was at least debatable.
So you can imagine my shock when I saw that Professor Berman had gone over to the dark side. He posted a co-authored paper, Provocation as Partial Justification and Partial Excuse, treating the distinction he was once skeptical about as meaningful and important; I could find only a few passing and, I would say, unrepresentative references to his prior work in the new paper. To be sure, the paper is elegant and interesting; the only problem is that it is an example of a genre I thought he had debunked. I feel like I turned on C-SPAN to see Ralph Nader testifying before the Senate Finance Committee as a paid lobbyist of the U.S. Chamber of Commerce, or dropped in to KFC to find Peter Singer with his mouth full of the new Doubledown sandwich.
Posted by Marc Miller on April 20, 2010 at 06:54 AM
Comments
Jack, that’s great!! Not many of us in law teaching. Good to meet you (at least virtually for now) too.
Thanks for reading my piece. I read yours and think it terrific. I think the gist of what you say is right: e.g., “Fortunately, there is an option for sending moral messages other than categorizing the basis of acquittal as justification and excuse: namely, identifying the defense.”
In fact, I’ve argued that there may well be degrees of justification (or excuse!) depending on the nature of the circumstances attending a single course of conduct — particular cases in which we may feel that certain kinds of conduct is “more justified” or “less justified” than the very same conduct accompanied by different circumstantial data. So I certainly do agree that we need not begin with the abstract concepts of justification and excuse and squeeze everything into one or another category, if our aim is to send clear moral messages.
Even more than that: whether the criminal law can send abstract moral messages which are also “clear” through these categories at all is something about which I am skeptical as well.
At all events, I may be more friendly to the distinction than you are as a method of inducing moral reflection on these questions than you are (both in the classroom and in practice) but I agree very much that the desire to classify offenses as *always* justification or *always* excuse is not especially “useful,” in the broadest sense of the term.
Posted by: Marc DeGirolami | Apr 21, 2010 3:27:56 PM
Marc,
First I see from your paper that you were a Special ADA in Middlesex, as I was, long ago, so it is good to meet you, compadre.
Second, I read your paper, and at first blush I think I agree with it. But your paper is about the elements and availability of a particular defense. Indeed, as your post says “Ultimately I do not rest any conclusion on the distinction itself (in fact, I argue that to do so is exactly the wrong way to go about making use of the distinction — because it leads away from more particularistic analysis).” You are not saying “let’s categorize defenses as justifications and excuses, and once we do, that will have important implications.” If, for example, I was able to persuade you that necessity is “really” a mixed justification and excuse (i.e., sometimes it applies to justification facts and sometimes to excuse facts–even with your refinements) that should not necessarily imply that the contours of the defense should be one way rather than another.
I’m interested your views on the more elaborate version of the point I make in my paper.
Posted by: Jack | Apr 21, 2010 11:21:03 AM
Jack, thanks for the response back. I think we agree that the distinction is meaningful. And I think we also agree that the distinction is useful, since you include the phrase “other than at the highest level of generality.”
In fact, I believe that it continues to be very useful for both scholars and students to think hard about the distinction between the two — not so that we can have a nice neat ordering of what’s justification and what’s excuse that we can superimpose on all new problems — but because the categories helpfully stimulate and foster (I think) a kind of healthy particularism about the way we consider the ethics of specific criminal situations. I think that the distinction between justification and excuse is an important one both didactically (for inducing careful moral deliberation and judgment in students) and academically (to do the same in the rest of us). I do agree that it is not helpful at all to use the categories as a kind of excuse for not engaging in that process.
But I disagree with you that the distinction is not important for doctrinal issues. I’ve argued in the paper below that the distinction can help to think about the question of culpability in causing certain affirmative defenses like the choice of evils and duress. Ultimately I do not rest any conclusion on the distinction itself (in fact, I argue that to do so is exactly the wrong way to go about making use of the distinction — because it leads away from more particularistic analysis). But theoretical heuristics (I think Orin is right to call the distinction by that name) can still, I believe, be very useful to think about doctrine in interesting and nuanced ways.
Thanks again for the post and comment.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1115835
Posted by: Marc DeGirolami | Apr 21, 2010 8:33:12 AM
Jack,
I agree with you. The excuse/justification distinction can be helpful to understand the theory behind a particular defense, and to contrast it with the theory behind other defenses. But it’s only helpful as a heuristic, I think: Once you see how it helps explains these differences, the distinction doesn’t actually do any work.
Posted by: Orin Kerr | Apr 21, 2010 1:15:40 AM
Marc,
I think I basically agree with your comment. Justification and excuse are meaningful concepts. Its just that it doesn’t particularly matter whether duress, say, is a justification or excuse, in that even if it is one rather than another that would not necessarily have any important doctrinal or procedural implications, other than at the highest level of generality(i.e., in general, desirable conduct and outcomes should be encouraged, and undesirable conduct and outcomes should be discouraged.).
Posted by: Jack | Apr 20, 2010 9:31:41 AM
I’m not sure that I agree that Greenawalt took the position in that early paper or in other work that the distinction between justification and excuse has “little practical utility for criminal law.”
He argued that it may not be worthwhile to haggle over justificiation and excuse at the “perplexing borders.” And, I think, he also claimed that while the issue of the rights of others who assist might be impacted by whether one deemed a particular defense a justification or an excuse, the categorization need not be dispositive.
But that does not mean that in the main, and for many kinds of situations, he disavowed the distinction between justification and excuse or claimed that it was irrelevant for the practice of criminal law. From early in the piece: “Although I emphasize borderline problems, I firmly believe that the basic distinctions between justification and excuse are important in the law.” This is admittedly not exactly the same as saying that the distinction is not important for criminal “practice,” though I think that claim is not one about which Greenawalt had much to say at all.
Posted by: Marc DeGirolami | Apr 20, 2010 7:59:05 AM