Motive and Criminal Liability

Criminal Justice Ethics

Volumn 8, Issue 1, 1989, Pages 3-14

  Husak, Douglas N ^a  

^a Rutgers Cooperative   (United States)

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EID: 26444504270     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1988.9991846     Document Type: Article

References (40)

1. I would like to thank Brian McLaughlin, Harold Rubinstein, and the referees of Criminal Justice Ethics for their helpful contributions.
2. J. Hall, General Principles Of Criminal Law 88 (2d ed. 1960). I offer no hypothesis about why Hall's thesis is so widely accepted among criminal theorists.
3. “The basis for… assuming a clear distinction between excusing conditions, which operate to relieve a criminal defendant from liability entirely, and mitigating excuses, which are taken into account by way of sentencing discretion… is rarely articulated, and when it is, seems unconvincing.” Wasik, Partial Excuses in the Criminal Law, 45 Mod. L. Rev. 516 (1982).
4. See Note, The Cultural Defense in the Criminal Law, 99 Harv. L. Rev. 1293 (1986).
5. See Tonry, Criminal Law: The Missing Element in Sentencing Reform, 35 Vand. L. Rev. 607 (1982).
6. See the discussion in A. Ashworth, Sentencing and Penal Policy 81-91 (1983).
7. See Hall's ground for rejecting Salmond's definition: “[T]he criticism of Salmond's usage is based upon… countless decisions holding that motive is not a material element of a crime.” Supra note 1, at 85, n. 67.
8. H. Gross, A Theory Of Criminal Justice 111 (1979). Gross attributes this example to “a philosopher,” but neglects to identify him.
9. See Sistare, Agent Motives and the Criminal Law, 13 Soc. Theory & Prac. 303 (1987).
10. G. Williams, Criminal Law: The General Part 48 (2d ed. 1961).
11. See also J. Salmond, Jurisprudence 397 (7th ed. 1924).
12. G. Williams, id.
13. G. Williams, supra note 10, n. 2.
14. See Hitchler, Motive as an Essential Element of Crime, 35 Dick L. Rev. 105 (1930-1931).
15. Supra note 10, at 49.
16. See W. Lafave & A. Scott, Criminal Law 206 (1972).
17. See D. Husak, Philosophy Of Criminal Law (1987), for a discussion of how theactus reus, mens rea, causation, and harm requirements have been “defended” by being interpreted as tautologies.
18. Supra note 8, at 111.
19. See Von Hirsch, Desert and Previous Convictions in Sentencing, 65 U. Minn. L. Rev. 591 (1981).
20. 410 A2d 1000 (1979).
21. See Sistare, supra note 9, at 306. The chief difficulty with this view is to identify those “action-initiators” that are not motives.
22. See P. Grice, Motive and Reason, in Practical Reasoning 168 (J. J. Raz ed. 1978).
23. In light of these offenses, Sistare remarks, “If there is a real ground for dispute here, it seems to be a question of how many exceptions remake the rule.” Supra note 9, at 316.
24. See Jones v. U.S., 308 F.2d 307 (1962).
25. See Beynon, Doctors as Murderers, Crim. L. Rev. (1982).
26. See J.C. Smith & B. Hogan, Criminal Law 44(5th ed. 1983).
27. See the analysis in Fletcher, Prolonging Life: Some Legal Considerations, 42 Wash. L. Rev. 999 (1967).
28. The influence of this analysis in case law is illustrated by Barber v. Superior Court of Los Angeles County, 195 Cal. Rptr. 484 (1983).
29. It is unclear whether a defendant whose conduct is justified actually commits a criminal offense. See D. Husak, supra note 17, at 190-92.
30. G. Fletcher, Rethinking Criminal Law 557 (1978).
31. But see Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 261 (1975).
32. Thus my hypothetical does not involve overdetermination. In my original hypothetical, were Smith aware of Jones's plan, he probably would have two sufficient motives for assault. Presumably, if either of the defendant's motives for assault falls under a justification, the defense should be available. But some requirements for the use of justifications are more stringent. A few commentators refer to the defendant's “dominant motivation.” See W. Lafave & F. Scott, supra note 16, at 207.
33. California requires that some such defenses be available only if the defendant acts “under the influence of such fears alone.” See Cal. Penal Code, Sec. 198 (1970).
34. LaFave and Scott endorse the puzzling view that the availability of a justification is dependent upon “objective facts,” but immediately contradict this conclusion by adding: “This does not mean, of course, that the defense can be manufactured after the event by resort to facts not known to the actor when he engaged in the conduct.” Supra note 16, at 206-07.
35. Robinson describes “justificatory intent” not as motive but “purpose.”
36. See P. Robinson, 2 Criminal Law Defenses 17, n. 7 (1982).
37. There is a great deal of debate among commentators about how many excusing conditions involve nonvoluntary behavior. Robinson contends thata condition does not excuse unless “the act constituting the offense is not the product of a meaningful choice.” Id., at 223, n. 1.
38. See the insightful discussion of voluntariness as a “variable concept” in J. Feinberg, Harm to Self 117-24 (1986).
39. Some commentators tentatively suggest that excusing conditions not be publicized, so that resolve to comply with the law is not weakened. See Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984).
40. See Fletcher, Paradoxes in Legal Thought, 85 Col. L. Rev. 1263, 1283 (1985).