§ 17.01 HISTORICAL OVERVIEW

• Jurisdiction: United States

§ 17.01. Historical Overview¹

Two categories of criminal law defenses are the subject of this chapter: justifications and excuses. In very early English legal history, the distinction between justifications and excuses was a matter of profound practical significance. In the case of felonies, a justified actor was acquitted of the offense; an excused actor, however, was subject to the same punishment as a convicted offender (the death penalty and forfeiture of property), although he could escape the death sentence with a pardon from the Crown.

This dichotomy blurred over time, as excused actors were pardoned by the Crown on an increasingly pro forma basis; and they were allowed to regain their property by means of a writ of restitution.² Nonetheless, the excused wrongdoer was not on the same footing as the justified actor, since the excused party was subject to incarceration while petitioning for a pardon and for restitution of his property. The justified actor was free of all legal impediments.

Today, justified and excused actors are treated the same by the criminal courts: Each is acquitted of the offense and neither is punished for her conduct (although a person excused on the ground of insanity is subject to civil commitment). As a result, many courts, legislatures, and commentators have become inattentive to the differences between the two classes of defenses, even to the point of using the terms "justification" and "excuse" interchangeably.³

This inattention has not gone without objection by a cadre of scholars. These writers have sought to clarify the concepts of "justification" and "excuse," to demonstrate how the two defenses differ, and to explain why lawyers should care about the distinctions. Because of renewed interest in the subject, including greater sensitivity to the distinction among some courts,⁴ this chapter provides a closer inspection of these concepts.

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Notes:

^[1] . See generally George P. Fletcher, Rethinking Criminal Law 759-875 (1978); Marcia Baron, Justifications and Excuses, 2 Ohio St. J. Crim. L. 387 (2005); Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 Duke L.J. 1 (2003); Joshua Dressler, Justifications and Excuses: A Brief Review of the Concepts and the Literature, 33 Wayne L. Rev. 1155 (1987); Kent Greenawalt, Distinguishing Justifications from Excuses, 49 Law & Contemp. Probs., Summer 1986, at 89; Heidi M. Hurd, Justification and Excuse, Wrongdoing and Culpability, 74 Notre Dame L. Rev. 1551...