§ 17.05 Justification versus Excuse: Why Does It Matter?

§ 17.05 Justification versus Excuse: Why Does It Matter?³⁵

[A] In General

Why should the legal profession care about the conceptual differences between justification and excuse defenses if they both result in acquittal of a defendant? Not everyone believes that the distinctions are sufficiently important to merit close attention. The drafters of the Model Penal Code, for example, were skeptical that they could draw sensible lines between justifications and excuses; and, even if they could draw such lines, they concluded that the resulting increased complexity of the statutory system would outweigh the benefits.³⁶

Advocates of drawing distinctions offer a number of justifications for their position, a few of which are summarized below.³⁷

[B] Sending Clear Moral Messages

The criminal law represents a crude, but nonetheless important, moral compass that can assist people in deciding which of various potential paths they should take in particular circumstances. For example, if a battered woman is considering whether to kill her abusive partner while he is asleep, should the law tell her that her proposed action is justifiable, excusable, or criminal?³⁸ People should take justifiable, rather than wrongful-but-excusable, paths. If the law does not label the paths clearly, the system has failed to provide adequate guidance. Just as importantly, if the justification/excuse distinction is ignored or misapplied, the law may inadvertently express a moral falsity by characterizing improper-but-excusable conduct as proper, or vice-versa. In short, the criminal law ought to send the moral messages we intend to send.³⁹

[C] Providing Theoretical Consistency in the Criminal Law

Appreciation of the justification/excuse distinction can help lawmakers coherently define criminal defenses. For example, as discussed more fully later in the Text,⁴⁰ the common law heat-of-passion defense to murder suffers from a lack of proper attention to the justification/excuse distinction. Some elements of the defense are best explained in justificatory terms, while others seem excuse-based. The law is not well-served when a defense is composed of a set of inconsistent—perhaps contradictory—principles.

[D] Accomplice Liability

Suppose that D wishes to perform conduct A. D needs assistance to do so, so she turns to X for aid. If X assists, what is her criminal responsibility? If conduct A is justified, D has acted properly. X, therefore, should be acquitted as she is an "accomplice" in the commission of a justified—lawful—act.⁴¹ For example, if X provides D with a gun used to kill V in justifiable self-defense, X should be guilty of no crime.

Suppose, however, that D kills V due to an insane delusion. X, who is sane, assists D by providing the gun used in the killing. Although D may be acquitted on the basis of insanity, no logical reason precludes the conviction of X for the murder in which she sanely assisted. After all, a wrongful act has occurred, i.e., the death of V. The fact that D is relieved of responsibility due to mental illness should not bar conviction of a sane person who assists in the wrongful act. As one court has explained, "[b]ecause excuses relate to a condition that is peculiar to the actor, such defenses are generally considered to be non-delegable and, thus, unavailable to an accomplice."⁴²

[E] Third-Party Conduct

Generally speaking, justifications are universalized, whereas excuses are...