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Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction

38 Pages Posted: 29 Jan 2009 Last revised: 17 Apr 2011

Gabriel "Jack" Chin

University of California, Davis - School of Law

Date Written: April 4, 2009

Abstract

For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded.

The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages.

Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches.

This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work.

Keywords: Criminal law, defense, justification, excuse, criminal law theory, self-defense, Model Penal Code

JEL Classification: K14

Suggested Citation

Chin, Gabriel "Jack", Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction (April 4, 2009). University of Michigan Journal of Law Reform, Vol. 43, p. 79, 2009; Arizona Legal Studies Discussion Paper No. 09-02. Available at SSRN: https://ssrn.com/abstract=1334291

Gabriel Chin (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
400 Mrak Hall Dr.
Davis, CA 95616-5201
United States
520-401-6586 (Phone)
530-754-5311 (Fax)

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