An attack on self-defense.

• Author: Fontaine, Reid Griffith
• Position: A Symposium on Self-Defense

INTRODUCTION I. REVISITING JUSTIFICATION AND EXCUSE II. SELF-DEFENSE AS LEGITIMATE JUSTIFICATION III. MAKE NO MISTAKE, MISTAKEN SELF-DEFENSE IS NO JUSTIFICATION IV. MISTAKEN SELF-DEFENSE AND OTHER "DEFENSE-RELATED" DEFENSES CONCLUSION INTRODUCTION

Debate surrounding the structural boundaries and differential application of justification and excuse in Anglo-American criminal law has continued to generate an impressive body of scholarship over the last three decades. As Professor Mitchell Berman recognized, "[i]n the field of Anglo-American criminal law theory perhaps no subject has been more in vogue the past twenty-odd years than the distinction between justification and excuse." (1) The confusion between justification and excuse has been raised with respect to several other defense doctrines, including, but not limited to, duress, (2) self-defense (and defense of others), (3) mistake of fact, (4) mistake of law, (5) and even insanity. (6)

Although self-defense is generally treated as a justification, it is not difficult, given the broad range of cases to which the defense has been applied, to appreciate why the defense's nature and structure have persisted as topics of scholarly inquiry. In the present Article, I agree with and build upon a formulation of self-defense (and, likewise, defense of others) (7) as justification that requires both objective (8) and subjective factors. I recognize that formulations of self-defense that require both objective and subjective components, or arguments on their behalf, are not exactly new. These formulations reflect, with some variation, Professor George Fletcher's (9) perspective in his debate with Professor Paul Robinson, (10) the latter of whom, along with Professor Heidi Hurd, (11) favors a construction of justification in which only objective factors are relevant. The present Article, however, significantly adds to the debate about self-defense in multiple, critical ways that, ultimately, provide some clarity as to how the defense should be reconsidered and reframed. In the present Article, I first clarify the nature and structure of self-defense as justification and outline the objective and subjective criteria by which self-defense killings should be framed, and secondly argue that cases of supposed "self-defense" (12) that are based in part or in whole on mistake of fact cannot be justified. With this foundation, I argue that because self-defense is a full justification defense, and "self-defense" cases that are based in part or in whole on the defendant's reasonable mistake of fact cannot be justified, a new, separate defense, which I call mistaken self-defense (and mistaken defense of others), need be recognized. This new defense would function to excuse (and not justify) the defendant's understandable but erroneously motivated violent act. (13)

Boundaries of self-defense, as the doctrine is currently framed, are improperly set. That is, contemporary self-defense doctrine includes cases in which either no defense of oneself has actually occurred in the killing of one's victim or, although one has, in fact, defended himself via his mortal act, he has done so in an unjustifiable manner (e.g., the case in which an innocent bystander is killed in order to preserve one's own life). Although these reactive killings may be understandable, and thus potentially excusable, they are not justified. In order to more fully illustrate the "boundary problem" of self-defense, I, at various points throughout this article, contrast self-defense with the doctrine of heat of passion, the latter of which correctly allows for reasonable but mistaken beliefs of provocation in its partial excusal of emotionally disrupted, reactive killers. Elsewhere, I have attempted to provide clarification of the necessarily excusatory nature of heat of passion doctrine. (14)

According to the doctrine, which is also referred to as "provocation," a defendant charged with murder may be found guilty of the lesser offense of manslaughter if, in response to (the reasonable belief of) serious provocation by the victim, he became emotionally charged and killed the victim while in this state of compromising emotional arousal. It is via the killer's understanding that he has been so seriously wronged that he becomes emotionally overcome such that his self-control and rationality are undermined. Regardless of the validity of the interpretation of provocation by the victim, (15) the defendant's invocation of heat of passion will not be successful unless he can adequately demonstrate that she killed while in an emotionally disturbed state. Thus, the critical mechanism of the heat of passion defense is disruptive emotion. (16)

In contrast, the doctrine of self-defense has no requirement of emotion. In Anglo-American criminal law, traditional self-defense doctrine has recognized five basic requirements. (17) First, the defendant must have honestly and reasonably believed that she was faced with an imminent threat of grievous bodily harm or death. Second, she needed to have honestly and reasonably believed that it was necessary to kill the victim in order to prevent the threat from being realized.

Third, the amount of the defendant's force must not have exceeded the degree of force posed by the threat. (18) Fourth, the defendant needed to have honestly and reasonably believed that the threat against her was unlawful or unjustified. Finally, many jurisdictions require that the defendant not be the initial aggressor or provoker of the threat. Nowhere in these requirements does one find even a mention of emotion, never mind a requirement that it exist in such substantial form that it influences the defendant's decision making in the course of his reactive killing.

Self-defense differs from heat of passion in other important ways, too, of course, but it is heat of passion's emotion requirement that is most critical in definitively placing it in the excuse camp. (19) Like heat of passion homicide, killing in self-defense is enacted in response to the belief of another's wrongful action. However, this is where the likeness ends. Killing in self-defense is considered justifiable homicide when it is reasonably believed that the victim poses an imminent threat of grievous bodily harm or death (20) to the killer. It does not matter if the killer acts in an entirely non-emotional (e.g., fearless), rational, and self-controlled manner the killing is deemed to be fully justified. Unlike with heat of passion, impairing emotion (or emotion of any degree or kind) is not necessary in self-defense. Rather, in the case of self-defense, one's right to prevent another from wrongfully causing grievous bodily harm or death itself entitles him to intentionally, emotionlessly, and otherwise soundly engage in reactive violence against the threat. (21)

Although at times left unrecognized, a problem exists, however, in the case that no real imminent threat of death is present. That is, in the case in which the killer reasonably but erroneously believes that another is about to cause him mortal harm, the perceived offender has acted in no way that would adequately change the moral balance of the relationship between the victim and killer. As such, the victim has not acted such that he deserves to die or in a way that entitles the killer to take his life. In fact, there exists no characteristic--related to the victim or otherwise--of such a scenario that gives rise to entitlement on the part of the killer. This is the absolute critical element as a killing may not be said to be justified if the actor is in no way entitled to kill. Whereas the reasonableness of the killer's belief that he is being mortally threatened may make his act understandable, and thus potentially excusable, it does not and cannot make his act justifiable.

This troubling inconsistency raises some questions as to the nature of self-defense. Is it a justification or excuse? Is it possible for self-defense to at times be a justification and, at other times, an excuse? Herein, I argue that self-defense is a full justification and that it is never an excuse. I assert criteria by which justifiable homicide should be determined and suggest that the doctrine of self-defense be reframed such that cases in which there is no real defense--such as in the case of a reasonable but erroneous belief of a mortal threat--be excluded and handled under a separate excuse-based doctrine of mistaken self-defense. Also, I address self-defense cases of the excessive force and otherwise imperfect varieties and discuss the degrees to which culpability and punishment in such cases should be mitigated and on what bases (i.e., justification versus excuse; full versus partial). In sum, this Article takes issue, from a deontological retributivist perspective, with the traditional common law framing of self-defense, and, via a proposed standard of three criteria, offers a restructuring such that self-defense may be more accurately limited to truly justifiable reactive homicides, and a separate excuse-based defense may be considered by which the role of reasonable mistake in reactive killing may be more properly understood and handled.

1. REVISITING JUSTIFICATION AND EXCUSE

   By its nature, the distinction between justification and excuse is guided by the retributive principle of penal proportionality, such that one is blamed and punished no more or less than he deserves. (22) Just as a defendant does not deserve punishment when he acts rightfully, he does not deserve punishment when he has committed a wrongful act for which he is not responsible. Although there have been attempts to "reframe" (23) the distinction to account for actions that are generally desirable but not always rightful, these attempts have met with limited success, in part, I expect, because they misunderstand the retributive nature of the distinction as utilitarian (or at least partly utilitarian), and in part because...