Legal Commentary

I contributed to an interesting criminal law symposium published by the University of Michigan Journal of Law Reform, entitled The Nature, Structure, and Function of Heat of Passion/Provocation as a Criminal Defense.  The symposium was built around a paper by Reid Fontaine, a J.D./Ph.D. in psychology who will be my colleague at Arizona for a few more weeks, but, to our disappointment and to Florida State's delight, will join Dan Markel, Wayne Logan and rest of the criminal justice team at FSU in the fall. 

The symposium engages the distinction between justification and excuse defenses--as an indication of the popularity of the area, at least three of the five most cited Criminal Law and Procedure scholars on Brian Leiter's list have written on the topic.  Justifications relieve criminal liability for good or tolerable conduct (such as self-defense) and excuses relieve criminal liability because some characteristic as infancy or insanity renders the defendant insufficiently blameworthy to merit criminal punishment.  Reid's paper, Adequate (Non)Provocation and Heat of Passion as Excuse Not Justification, presents new perspectives on understanding heat of passion/provocation as a pure (partial) excuse and examines some of the problems with treating the defense as based entirely or partially on justification.  Responses included The Values of Interdisciplinarity in Homicide Law Reform by Robert Weisberg; The Provocation Defense and the Nature of Justification by Marcia Baron; Misunderstanding Provocation by Sam Pillsbury; How Not to Argue that Reasonable Provocation Is an Excuse by Peter Westen; The Irreducibly Normative Nature of Provocation/Passion by Stephen Morse; and an insightful introduction by Kyron Huigens.   

A general point is that if the distinction is helpful to legislatures, courts and jurors, it is eyebrow-raising that scholars have debated the contours of the concepts at least since the early 1970s with no end in sight.  Concepts that are hotly and, evidently, permanently, contested among specialists are unlikely to be the basis for usable laws to applied by ordinary lawyers, judges, legislators and jurors who do not have unlimited time to consider their meaning and application.  If step one of a plan for developing public policy is to "determine whether Professor Robinson or Professor Fletcher is right about whether justifications are objective or subjective", the difficulty in so doing suggests that the approach is impractical.

In addition, in most jurisdictions, justification defenses can be satisfied by "excuse" facts, and vice versa, for example, self-defense can be invoked based on a reasonable mistake, even if the unfortunate decedent has done nothing wrong.  That means that replacing agnostic not guilty verdicts, which make no claims as to their basis (that you have been convicted of speeding only a few times in no way implies those are the only times that you sped), with particularized explanations, may actually generate misinformation.  Because of such things as burdens of proof, that a jury acquits a defendant on a justification defense does not mean they found the defendant in fact engaged in good conduct.  (Most states now require self-defense to be disproved beyond a reasonable doubt, so if a jury believes that it is much more probable than not that the defendant committed murder, it must acquit if self-defense though unlikely was reasonably possible.)  

In addition, for the legal system to go beyond general "not guilty" verdicts in favor of more specific factfinding assumes a power to uncover historical facts and mental states of defendants and decedents that may not exist.  In a case like this one, where a schoolteacher with no criminal record is shot when found uninvited in a stranger's house, under current law, non-liability based on self-defense or crime prevention is simple and clear.  But a jury could be asked to explore and explain the underlying facts--was the intruder experiencing a medical emergency and about to ask for help, say, or was someone who never committed a criminal act in his life planning a rape or murder?  If the former, the shooting, according to some theorists, is merely excused, if the latter, the act was justified, and some scholars classify putting such cases in the right pigeonholes.  Exploration of these questions is unwise for a variety of reasons: 1) Usually, juries will have no reliable means of answering these sorts of historical hypotheticals; and 2) in any event, the utility of the information will be low, and the costs of getting it high.  There is value in allowing for incompletely theorized agreements, where six jurors can acquit based on reasonable doubt, say, and six others based on a conclusion that, whether there is prima facie liability or not, a defense applies. 

In a legal system where the harmless error doctrine makes it difficult for a defendant claiming innocence and with a demonstrated legal error to get a new trial, it is difficult to conclude that the criminal justice system should spend precious resources exploring the precise grounds of exoneration of those who are unquestionably not liable.  And if the legal system were to get into the business of declaring innocence, surely it should start with people who are so clearly not liable that they were never charged in the first place--the system can determine these cases at a lower cost and with greater accuracy.