Excuses in Exile

66 Pages Posted: 29 Apr 2017  

Anders Kaye

Thomas Jefferson School of Law

Date Written: 2015


In this paper, I explore the mysterious relationship between excuse and mitigation and show that we sometimes exile excusing facts to the realm of mitigation, stripping them of much of their power and significance. In so doing, I suggest, we turn the realm of mitigation into something like the unconscious of the criminal law, a place to bury facts about wrongdoers and criminality about which we are deeply conflicted.

I begin by highlighting the practical importance of the distinction between excuse and mitigation. As I explain, to categorize a fact as “mitigating” rather than “excusing” is to relegate it to a second-class status (substantively and procedurally) among sympathetic and explanatory facts about wrongdoers. Yet, despite the importance of this distinction, the boundary between excuse and mitigation is poorly mapped in criminal theory.

To cast light on this area of uncertainty, I propose a schema for distinguishing excusing facts from mitigating facts. On this schema, facts that diminish a person’s responsibility for a wrongdoing are excusing, while facts that favor reduced punishment for other reasons – such as those rooted in the various non-retributive purposes of punishment -- are mitigating. I employ this schema to evaluate traditional distinctions between excuse and mitigation, re-sorting sympathetic and explanatory facts about wrongdoers into three categories: (1) the uncontroversially excusing, (2) the uncontroversially mitigating, and (3) the “excuses in exile” -- a cohort of facts including possible excuses and possible partial excuses that we have traditionally treated as mitigating despite strong reason to think they may actually be excusing. Looking more closely at why we exile these potential excuses, I identify some potentially troubling explanations, including explanations that point to the politics of the criminal law (rather than its theory), and I suggest that we may shunt certain sorts of excusing facts into the mitigation category because we are conflicted about recognizing their excusing force. In this sense, I propose, we make the realm of mitigation into something like the unconscious of the criminal law, a repository for facts and insights regarding wrongdoers and crime about which we have unresolved conflicts.

Finally, having cast light on some of the conflicts buried in the criminal law’s unconscious, I conclude by suggesting some therapies, including particularized and generic revisions to excuse doctrine and more scrupulous handling of certain mitigations. Each is a way of bringing the exiled excuses at least part way back from that unconscious, so that we can more directly engage the difficult facts about wrongdoers and crime that we have been burying in the realm of mitigation.

Keywords: excuse, mitigation, responsibility, exiled excuses, excuses in exile, mitigating factors, unconscious of the criminal law

Suggested Citation

Kaye, Anders, Excuses in Exile (2015). 48 University of Michigan Journal of Law Reform 437 (2015). Available at SSRN: https://ssrn.com/abstract=2959922

Anders Kaye (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4259 (Phone)

HOME PAGE: http://www.tjsl.edu/directory/anders-kaye

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