Arizona CrimProf Jack Chin has posted The Justification/Excuse Distinction: An Argument for its Practical Irrelevance on SSRN. The abstract: "Fordecades, Joshua Dressler, Paul Robinson, Reid Fontaine and others havedebated the distinction between justification and excuse defenses."Justifications" represent good behavior, while "excuses" relievecriminal liability for socially undesirable behavior for policyreasons. Building on the critiques of Kent Greenawalt and MitchellBerman, this essay proposes that claims for the practical importance ofthe debate have not succeeded. The best argument is JoshuaDressler’s claim that a robust justification/excuse distinction willsend clear moral messages about acquittals. But because acquittals areintrinsically ambiguous, they cannot be used to derive moral judgments.First, because clear cases of innocence or meritorious defense aredisproportionately screened out before trial, acquittalsdisproportionately represent near-convictions. Also, even replacementof opaque not guilty verdicts with special verdicts would send clearmessages only if the new verdicts are morally precise. However,"excuse" defenses can be satisfied by "justified" conduct and viceversa, e.g., the Model Penal Code’s "justification" of erroneous usesof force based on simple but less than gross negligence. In addition,there are seemingly intractable debates about categorization ofdefenses. Assigning acquittals to pigeonholes that even specialistsdispute cannot send clear moral messages. Other rationales forthe practical importance of the distinction, such effects on accompliceor aider and abettor liability of third parties, do not reflect the lawunder the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine’s work." Full Text here.
