§ 17.03 UNDERLYING THEORIES OF "EXCUSE"

• Jurisdiction: United States

§ 17.03. Underlying Theories of "Excuse"¹⁵

[A] Searching for an Explanatory Theory

An excuse defense "is in the nature of a claim that although the actor has harmed society, she should not be blamed or punished for causing that harm."¹⁶ The question that must be answered here is: Is there a single principle that determines when the law will abstain from blaming a person who has caused social harm and, as a result, not hold her legally accountable in a criminal prosecution?

As with justifications, no single theory explains every excuse defense. Moreover, some of the theories partially overlap. However, unlike justification defenses, which are often (but need not be) explained on utilitarian grounds, excuses in the criminal law are far more plausibly defended in non-utilitarian terms. As Professor Sanford Kadish has observed, "[s]omething is missing" in the utilitarian account of excuses, namely, "concern for the innocent person who is the object of a criminal prosecution." As Kadish points out:

To blame a person is to express a moral criticism, and if the person's action does not deserve criticism, blaming him is a kind of falsehood and is, to the extent the person is injured by being blamed, unjust to him. It is this feature of our everyday moral practices that lies behind the law's excuses.¹⁷

After brief comment on the utilitarian theory of excuses, various nonconsequentialist moral theories are surveyed.

[B] Deterrence Theory

Jeremy Bentham, the leading classical utilitarian, explained that excuses are recognized in the criminal law because they identify the circumstances in which conduct is undeterrable, e.g., when a person is insane or coerced to commit an offense. In such situations, punishment of the actor is wrong because it is inefficacious.¹⁸

This argument has rightly been denounced as a "spectacular non sequitur."¹⁹ The threat of punishment may not deter a person who is suffering from a mental illness or is acting under duress, but its infliction may deter misconduct by "normal" persons who might otherwise believe that they could fraudulently convince a jury of their undeterrability. Abolition of all excuses, therefore, might be socially useful: The pain inflicted on the undeterrable actor might be outweighed by the prevention of harm caused by the law's imposition of a stricter form of liability.²⁰

Professor H.L.A. Hart has offered a more sophisticated utilitarian account of excuses. He has argued that excuses "function as a mechanism for . . . maximizing within the framework of coercive criminal law the efficacy of the individual's informed and considered choice in determining the future and also his power to predict that future."²¹ That is, the rule that criminal liability is limited to voluntary wrongdoing allows each person to derive satisfaction from being able to plan her life with reasonable confidence that she can avoid the sanctions of the law, as long as she chooses to obey society's dictates.

[C] Causation Theory

Potentially the broadest excuse theory states that a person should not be blamed for her conduct if it was caused by factors outside her control.²² For example, according to a causal theorist, D should be excused if she commits a crime because of a mental illness or a coercive deadly threat: Since she is not to blame for being ill or the victim of coercion—the cause of her actions—she is not to blame for the crime itself. On the other hand, she is to blame and punishable if her criminal conduct was caused by self-induced intoxication or by any other factor for which she is responsible.

Although this principle is plausible on its face, it does not accurately...