An attack on self-defense

American Criminal Law Review

Volumn 47, Issue 1, 2010, Pages 57-89

  Fontaine, Reid Griffith ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 84866179254     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (68)

1. Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L.J. 1,3 (2003).
2. E.g., Peter Westen & James Mangiafico, The Criminal Defense of Duress: A Justification, Not an Excuse- and Why It Matters, 6 BUFF. CRIM. L. REV. 833,833 (2003) (discussing the difficulty of denning and justifying the defense of duress);
3. see also George P. Fletcher, The Right and the Reasonable, 98 HARV. L. REV. 949,955 (1985) (agreeing that the term "excuse" implies that the actor is not personally to blame for the untoward act);
4. cf. Kyron Huigens, Duress is Not a Justification, 2 OHIO ST. J. CRIM. L. 303, 303 (2004) (discrediting duress as a justification).
5. Eg., Judith Jarvis Thomson, Self-Defense, 20 PHIL. & PUB. AFF. 283, 283 (1991) (observing that self-defense excuses an actor by either mitigating his fault or completely exculpating him);
6. cf., Laurence A. Alexander, Justification and Innocent Aggressors, 33 WAYNE L. REV. 1177, 1178-79 (1987) (arguing that while self-defense killings of "innocent aggressors" may be excusable, they are never justified).
7. E.g., Terry L. Price, Faultless Mistake of Fact: Justification or Excuse?, 12 CRIM. JUST. ETHICS 14, 14-15 (1993) (positing that actions based upon a faultless mistake of fact are appropriately deemed excused, not justified).
8. E.g., Re'em Segev, Justification, Rationality and Mistake: Mistake of Law is No Excuse? It Might Be a Justification!, 25 LAW & PHIL. 31, 31-33 (2006) (arguing that ignorance or mistake of law, while not an excuse, could be justified when based on a rational analysis of the information the actor has or should have).
9. See Norman J. Finkel & Christopher Slobogin, Insanity, Justification, and Culpability Toward a Unifying Schema, 19 LAW & HUM. BEHAV. 447 (1995) (discussing insanity as an excuse versus justification by comparing tests applied to the defense of insanity);
10. See George P. Fletcher, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 UCLA L. REV. 293, 295 (1975) (arguing that it is consistent with the theory of justification to make the justificatory defense available only to those whose intent is meritorious).
11. See Paul H. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Responsibility, 23 UCLA L. REV. 266,266 (1975) (arguing that if the criminal law is extended to punish bad intent alone or the mere possibility of harmful conduct, it goes beyond its accepted role and injures its credibility).
12. See Heidi M. Hurd, Justification and Excuse, Wrongdoing and Culpability, 74 NOTRE DAME L. REV., 1551 (1999) (arguing that an action is justified only if it is permitted by our best moral theory, regardless of the beliefs of the actor).
13. Reid Griffith Fontaine, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, 43 U. MICH. J.L. REFORM 27,27 (2009) (arguing that the emotional disturbance brought about by heat of passion situations can only be characterized as an excuse)
14. [hereinafter Fontaine, Adequate (Non) Provocation];
15. Reid Griffith Fontaine, On Passion's Potential to Undermine Rationality: A Reply, 43 U. MICH. J.L. REFORM 207, 213 (2009) (insisting that there is an important moral distinction between justification and excuse)
16. [hereinafter Fontaine, On Passion's Potential]. Certainly, several others have made convincing arguments, the most comprehensive of which is perhaps Joshua Dressier.
17. See, e.g. Provocation: Partial Justification or Partial Excuse?, 51 MOD. L. REV. 467,467-80 (1988) (arguing that the criminal law ought to send clear moral messages and that common intuition tells us that provocation partially excuses, but does not partially justify a homicide) [hereinafter Dressier, Provocation].
18. Typically, real provocation by the victim is not needed to meet the adequate provocation standard. And, in fact, even the defendant's reasonable belief that he was provoked by the victim is not always necessary. See Fontaine, Adequate (Non) Provocation, supra note 14;
19. Fontaine, On Passion's Potential, supra note 14 at 226.
20. This conclusion is perhaps most succinctly summarized by Professor Joshua Dressler's explicit assertion that "[p]rovocation law is all about emotions, most notably anger." Joshua Dressier, Why Keep the Provocation Defense?: Some Reflections on a Difficult Subject, 86 MINN. L. REV. 959, 959 n.5 (2002) [hereinafter Dressier, Why Keep the Provocation Defense?].
21. Professor Cynthia Lee provided an excellent review and discussion of traditional self-defense doctrine. Cynthia K.Y. Lee, The Act-Belief Distinction in Self-Defense Doctrine: A New Dual Requirement Theory of Justification, 2 BUFF. CRIM. L. REV. 191,195-208 (1998).
22. More explicitly, it is the role that emotional disturbance plays in undermining the reactive killer's rationality. See Fontaine, Adequate (Non)Provocation, supra note 14, at 31;
23. Fontaine, On Passion's Potential, supra note 14, at 233-34.
24. For a discussion of reactive violence see Reid Griffith Fontaine, Disentangling the Psychology and Law of Instrumental and Reactive Subtypes of Aggression, 13 PSYCHOL. PUB. POL'Y & L. 143 (2007)
25. [hereinafter Fontaine, Disentangling the Psychology].
26. See Paul H. Robinson, A System of Excuses: How Criminal Law's Excuse Defenses Do, and Don't, Work Together to Exculpate Blameless and Only Blameless Offenders, TEX. TECH L. REV. (Forthcoming);
27. see also Eugene R. Milhizer, Group Status and Criminal Defenses: Logical Relationship or Marriage by Convenience?, 71 Mo. L. REV. 548, 572 (2006) ("A proper understanding of excuse theory, as with justification theory, begins with a recognition that criminal law ought to stigmatize and punish a person only if he merits it.").
28. Some criminal law theorists believe that some actions should be classified as "warranted," as opposed to justified or excused. The "warranted" label applies to actions that are generally desirable but may cause social harms in certain instances (such as a police officer's shooting of an innocent pedestrian who is mistaken as a threatening criminal). See R. A. DUFF, ANSWERING FOR CRIME: RESPONSIBILITY AND LIABILITY IN THE CRIMINAL LAW 296 (Hart Publishing 2007);
29. Kenneth W. Simons, Self-Defense: Reasonable Beliefs or Reasonable Self-Control? 11 NEW CRIM. L. REV. 51,65 n.27 (2008).
30. Joshua Dressler, Justifications and Excuses: A Brief Review of the Concepts and the Literature, 33 WAYNE L. REV. 1155,1163 (1987)
31. [hereinafter Dressier, Justifications and Excuses].
32. The question of why the distinction between justification and excuse is important arises more than occasionally among non-criminal law theorist audiences. See, e.g., Michael L. Corrado, Notes on the Structure of a Theory of Excuses, 82 J. CRIM. L. & CRIMINOLOGY 465 (1991). This is likely due, at least in part, to the fact that both justifications and excuses result in the defendant being exonerated from culpability and punishment.
33. Dressier, Justifications and Excuses, supra note 25, at 1167-74;
34. Dressier, Provocation, supra note 14.
35. Fontaine, Adequate (Non) Provocation, supra note 14.
36. See, e.g., id. Dressier, Provocation, supra note 14;
37. Dressler, Why Keep the Provocation Defense?, supra note 16, at 959-60 n.5.
38. Fontaine, Adequate (Non)Provocation, supra note 14 at 29.
39. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW § 7.10 (2d ed. 1986) (noting the requirements for heat-of-passion voluntary manslaughter).
40. Reid Griffith Fontaine, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, 43 U. MICH. J.L. REFORM 27,40-41 (2009).
41. See Joshua Dressier, When "Heterosexual" Men Kill "Homosexual" Men: Reflections on Provocation Law, Sexual Advances, and the "Reasonable Man" Standard, 85 J. CRIM. L. & CRIMINOLOGY 726 (1995);
42. see also Susan D. Rozelle, Controlling Passion: Adultery and the Provocation Defense, 37 RUTGERS L.J. 197 (2005).
43. By legitimate, I mean actual and undisputed. The class of conduct that qualifies for legitimate justification is to be distinguished from conduct that is only "justified" in the "mistaken" (e.g., Russell L. Christopher, Mistake of Fact in the Objective Theory cf Justification: Do TWo Rights Make TWo Wrongs Make TWo Rights!, 85 J. CRIM. L. & CRIMINOLOGY 295,296 (1994);
44. Paul H Robinson, Competing Theories of Justification: Deeds vs. Reasons, in HARM AND CULPABEJTY 45-70 (A.T.H. Smith & A. Simester, eds., Clarendon, Oxford, 19%), "purely subjective" (attributed to Anglo-American common law by some, such as Professor Lee, Cynthia Lee, supra note 17 at 208-09, and solely to academics by others, such as Robinson, supra, at 55), "putative," GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 762 (1978), or "unprivileged," See Robinson, supra, at 53 (discussing the Model Penal Code's definition of "unlawful force" senses). Similarly, the defense of self-defense, a complete and legitimate justification, should be distinguished from "excusable self-defense." See, e.g., Thomson, supra note 3, at 285-86.
45. As a recent example, Lecturer Fran Wright argued that the justification/excuse distinction fails to provide theoretical clarity for self-defense. Fran Wright, The Theory of Justification and Excuse and Its Application to Self-Defence, 6 J. COMMONWEALTH L. AND LEGAL EDUC. 55 (2008). Unfortunately, Wright's analysis fails because she confuses the naturally retributive nature of the distinction with utilitarian goals. The distinction was not recognized out of utilitarian theory, so it should come as no surprise that it does not consistently meet utilitarian interests. To her credit, though, Wright rightly points out that one reason why the justification-excuse distinction appears to fail self-defense doctrine is because self-defense typically includes acts that are based on mistake. Id. at 56. Indeed, as discussed herein, this is a problem for the Anglo-American framing of the defense.
46. Professor Fletcher is recognized as the most aggressive catalyst. E.g., Fletcher, supra note 2, at 1159; Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 COLUM. L. REV. 1897, 1897-98 (1984) (discussing Fletcher's "most eloquent" voice in distinguishing justification and excuse).
47. Larry Alexander, Self-Defense, Justification and Excuse, 22 PHIL. & PUB. AFF. 53 (1993).
48. Id. at 54. Indeed, Thomson's article has fueled considerable scholarly criticism. See Russell Christopher, Self-Defense and Defense of Others, 27 PHIL. & PUB. AFF. 123, 125 n.8 (1998) (compiling a list of articles that respond to Thomson).
49. This is a narrowly-tailored definition of self-preservation, purposefully bound in order to illuminate the distinction between self-defense and self-preservation in cases that involve a human killer and human target. As such, scenarios such as Kant's classic case of two individuals at risk of drowning competing for a floating plank are not at issue. See, e.g., IMMANUEL KANT, LECTURES ON ETHICS 346-47 (Cambridge: Cambridge University Press 1997).
50. Although normally motive is not an element of murder, and motive does not factor in the hierarchical ordering of statutory homicide law, motive is typically taken into account at multiple stages of the criminal justice process. In particular, motive is often critical to establishing the guilt of a defendant, as well as to determining his punishment at sentencing. To the degree that a court allows motive to be considered and attributed moral weight in the establishment of a defendant's guilt, killing another in an interest of self-preservation may be important, of course, in that this motive is naturally less "evil" than one of instrumental gain (e.g., to attain money or desired material goods). For an excellent discussion of motive's increasingly diverse role in criminal law and punishment, see Carissa Byrne Hessick, Motive's Role in Criminal Punishment, 80 S. CAL. L. REV. 89 (2006).
51. E.g., Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 DUKE L.J. 1 (2003);
52. Although one's subjective, conscious experience of reacting to a threat may be consistent with the idea that onset of (a) the evaluation of the threat (cognitive activation), and (b) the defensive response (enactment of the conduct) occur simultaneously, they do not. Now, it may well be that in the more hurried or impulsive instance the cognitive onset takes place only a fraction of a second prior to the enactment. Regardless, cognitive activation triggers (i.e., gives rise to) the enactment. In other words, consistent with a scientific articulation of cognitive mediation, the evaluation of the threat, or the belief that one is faced with a threat of grievous bodily harm or death; mediator (A/) mediates the temporal sequence defined by presentation of threat (cause X) and defensive response (effect Y). Professor Ken Simons recently argued that the standard "honest and reasonable belief" requirement of traditional common law self-defense is "cognitively excessive" and should be replaced by a requirement of reasonable exertion of self-control. Kenneth W. Simons, Self-Defense: Reasonable Beliefs or Reasonable Self-Control? 11 NEW CRIM. L. REV. 51,52-53 (2008). In contrast, I here require that the defender's belief be valid and not just reasonable, and I have defined belief such that it is not cognitively excessive but rather consistent with scientific research on information processing in real time.
53. The terms "defense-related defenses" and "defense-like scenarios" should be distinguished from the term "near self-defense cases," discussed by Professor Claire Finkelstein in her proposal of an excuse-based self-defense-like defense for victims who kill their abusers but do not meet all requirements of traditional self-defense (e.g., imminence of mortal threat). I believe that victims of chronic abuse who kill their abusers may be afforded a legitimate excuse defense, but only in the case that the victim's psychological status has been significantly affected by genuine fear or the honest belief that the killing is necessary. Whereas this Article does not allow for a full discussion of this topic, I will add only that I believe that such an excuse defense would necessarily be sufficiently different from legitimate self-defense and the defense-related defenses I hereafter propose that it would be best handled as a separate defense entirely. See Claire O. Finkelstein, Self-Defense as a Rational Excuse, 57, U. PITT. L. REV. 621, 622 (1996);
54. see also Hibi A. Pendleton, A Critique of the Rational Excuse Defense: A Reply to Finkelstein, 57 U. PITT. L. REV. 651 (1996).
55. For a detailed discussion, see Fontaine, Adequate (Non) Provocation, supra note 14.
56. Reid Griffith Fontaine, The Wrongfulness of Wrongly Interpreting Wrongfulness: Provocation Interpretational Bias and Heat of Passion Homicide, 12 NEW CRIM. L. REV. 69 (2009)
57. [hereinafter Fontaine, Interpreting Wrongfulness];
58. Reid Griffith Fontaine, Reactive Cognition, Reactive Emotion: Toward a More Psychologically-Informed Understanding of Reactive Homicide, 14 PSYCHOL. PUB. POL'Y & L. 243 (2008);
59. Fontaine, Adequate (Non) Provocation, supra note 14;
60. Fontaine, On Passion's Potential, supra note 14;
61. Fontaine, Disentangling the Psychology, supra note 21.
62. See, e.g., William Nasby et al., Attributional Bias Among Aggressive Boys to Interpret Unambiguous Social Stimuli as Displays of Hostility, 89 J. ABNORMAL PSYCHOL. 459 (1980);
63. Bram Orobio de Castro et al., Hostile Attribution of Intent and Aggressive Conduct: A Meta-Analysis, 73 CHILD DEV. 916 (2002);
64. Keneth A. Dodge et al., Hostile Attributional Biases in Severely Aggressive Adolescents, 99 J. ABNORMAL PSYCHOL. 385 (1990).
65. Fontaine, Interpreting Wrongfulness, supra note 84;
66. See, e.g., Kenneth A. Dodge & Joseph P. Newman, Biased Decision-Making Processes in Aggressive Boys, 90 J. ABNORMAL PSYCHOL. 375 (1981);
67. Karen R. Gouze, Attention and Social Problem Solving As Correlates of Aggression in Preschool Males, 15 J. ABNORMAL CHILD PSYCHOL. 181 (1987).
68. See also, Tako Horsley, Menno van'der Schoot, & Bram Orobio de Castro, An ye-tracking study of encoding in aggressive children: Does a bias in encoding affect interpretation or is it vice versa?. Paper presented at the 20th biennial meeting of the International Society for the Study of Behavioural Development in Würzburg, Germany (July 2008).