EXCUSE: THEORY

To approach the theory of excuse, one needs first to understand how excuses relate to other components of punishable, criminal conduct. Excuses become relevant only after proof that the actor has committed an unjustified act in violation of a criminal statute. Acts that fall outside the scope of the criminal law require no excuse; nor do nominal but justified violations of the law. If the actor has committed a criminal wrong (an unjustified violation of the statute), excuses speak to the question whether the actor is personally accountable for the wrongful act. This factor of personal accountability goes by many different names, including culpability, blameworthiness, fault, and mens rea. These overlapping terms have in common their logical incompatibility with excuses. A valid excuse implies that the actor is not to blame (not culpable, not at fault, without mens rea in the normative sense) for the wrongful act.

The range of excuses

Western legal systems have recognized, in varying degrees, a range of possible excusing circumstances. The paradigmatic excuse is that of insanity. Although definitions of insanity differ, all Western legal systems recognize that actors who, because of psychological incapacity, either do not realize they are doing wrong or cannot prevent themselves from doing wrong cannot be blamed for their wrongful violations of the law.

The claim of involuntary intoxication invites an analogy with insanity. If the intoxication is sufficiently acute and if it arises without the actor's voluntary choice, then the circumstances of the actor's incapacity closely resemble insanity. Indeed, West German law integrates acute intoxication into the framework of insanity (German (Federal Republic) Penal Code § 20). American law recognizes involuntary intoxication as a distinct excuse.

The claim of duress arises if another person threatens the actor with death or other serious harm if the actor does not commit a specific criminal act. Surrendering to the threat generates a possible excuse for the criminal act. As compared with insanity, however, claims of duress receive highly differential treatment. First, some legal systems, such as the Soviet system, do not recognize duress based on threats as an excuse, although some cases might fall under the justification of lesser evils. Second, even in systems recognizing duress as an excuse, considerable controversy attends the range of crimes that may be excused. German law recognizes the availability of duress in homicide cases. In English and American law, however, there is considerable resistance to recognizing duress as an excuse in homicide cases. Third, in legal systems recognizing duress as a distinct defense to at least some offenses, some scholars argue that the defense is grounded in a theory of justification rather than excuse (LaFave and Scott, pp. 378–379). The argument for this view is that the threat to the actor creates a conflict of interests: if the threat is sufficiently great and outweighs the interest sacrificed in committing the crime, the actor's submission to the threats will be justified on grounds of lesser evils. The more common interpretation of duress is that the threats do not justify the crime, but merely excuse the actor's having surrendered to the intimidating threats.

Even more controversial than the status of duress is the analogous situation of the actor committing an offense in response to the pressure of natural circumstances. The typical cases are those of stealing to avoid starvation or, as the issue was posed in Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), killing and committing cannibalism in order to fend off starvation on the high seas. This case held that natural circumstances could neither excuse nor justify homicide, and the influential opinion even ruled out starvation as an excuse for theft. Although this case still influences the course of English and American law, both French and German law would endorse starvation and other natural circumstances as excuses even for homicide (French Penal Code art. 64; German (Federal Republic) Penal Code sect. 35). Hereafter, this article will refer to this possible excuse as "personal necessity."

An important middle ground between duress and personal necessity arises in cases of prison escapes to avoid threatened violence. The situation resembles duress in that the actor responds to a human threat. Yet, in his response, the actor seeks to avoid the threat rather than to comply with it. American courts have responded to this problem on the assumption that avoiding threatened violence falls outside the scope of duress. With personal necessity not recognized as an excuse in American law, the courts have had considerable difficulty recognizing a defense based on intolerable prison conditions. Since 1974, however, a number of courts have moved in that direction (People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (1974); People v. Harmon, 53 Mich. App. 482, 220 N.W.2d 212 (1974)). Although the rationale for this new defense remains uncertain, the argument seems to be one of excuse rather than of justification.

The prison-break situation illustrates why it is important to distinguish between claims of excuse and of justification. The distinction bears upon the question whether prison guards, fully aware of the reasons for the attempted escape, may use force to thwart the attempt. One should think of the guards' use of force as potentially privileged law enforcement. The guards may use reasonable and necessary force to uphold the order of the prison, but only against unlawful or wrongful challenges to that order. They could not, for example, use force against a lawful order to transfer specific prisoners to another facility. The question, then, is whether the attempted escape poses a lawful or unlawful challenge to the order of the prison.

If the escape were deemed justified, one would be inclined to think of the attempted escape as lawful (or, at least, not unlawful). After all, a valid claim of justification renders conduct right and proper. If the escape is not unlawful, the guards have no right to resist. Not so with an excuse: an excuse does nor challenge the wrongfulness or unlawfulness of the conduct, but merely denies the personal accountability of the actor for the wrongful act. The guards retain the right to resist escapes excused on grounds of insanity, voluntary intoxication, duress, or personal necessity.

Some theorists might wish to argue that under certain circumstances—say when a fire threatens the lives of the inmates—the guards should not have the right to resist attempted escapes. In most cases of escape, however, the consensus would probably be that the guards have not only the right, but the duty, to protect society by resisting prisoners seeking to escape even from dire conditions. If this is the normative judgment, logic requires that conditions prompting escape be treated as a basis for excuse rather than justification.

In the period of the early common law, the courts clearly recognized an excuse of personal necessity in homicide cases. The excuse, called se defendendo, was limited to cases of self-preservation against a combatant. When the actor had no choice but to kill or be killed, he could excuse killing his opponent on the ground of se defendendo. The courts refused to expand this excuse to encompass cases such as Dudley and Stephens. Eventually, the statutory justification of self-defense supplanted se defendendo and became the standard for assessing liability in cases of killing aggressors or other combatants.

It is difficult to distinguish, in principle, between duress and personal necessity. Since the enactment of its first criminal code in 1871, German law has clearly recognized both excuses. Indeed, the 1975 code unites duress and personal necessity in one overarching provision (§ 35). It follows that in Dudley and Stephens, German courts would have considered the possibility of excusing the homicide. Despite some signs to the contrary (namely, in the prison-break cases), Anglo-American courts persist in distinguishing between duress, which they recognize, and personal necessity, which they have yet to recognize as an excuse.

Anglo-American ambivalence about personal necessity as an excuse corresponds to skepticism about another excuse well-recognized in German law: mistake of law. This claim arises if the actor violates the law without knowing it and under circumstances where it would have been unfair to expect him to have better informed himself of his legal obligations—for example, because the law is vague or imposes an obligation that bears no relation to conventional moral sentiments. Section 2.04(2) of the Model Penal Code recognizes a defense in cases in which the actor relies on an authoritative statement of the law that proves to be false. This limited defense is of no avail in cases in which the actor simply has no knowledge, and no basis for suspecting, that his conduct runs afoul of a prohibition in the criminal code. In Lambert v. California, 355 U.S. 225 (1957), Lambert was convicted for violating an ordinance requiring her, as a convicted felon, to register with the Los Angeles police within five days of entering the city. Her failure to register derived from understandable, potentially excusable ignorance of the ordinance. It is widely believed that her conviction under these circumstances was unjust. Yet the Model Penal Code's recommendation would have provided no relief, for Lambert had not relied on an authoritative statement of the law. Although the United States Supreme Court did not address the problem explicitly as an excusable mistake of law, it declared the conviction unconstitutional, holding that the government violated the due process clause by failing to provide sufficient notice of the obligation to register.

The rationale of excuses

The range of excuses remains in flux. The psychological sensitivity of the twentieth century generates claims for novel, as-yet-unrecognized excuses. Some people argue that prolonged social deprivation should excuse criminal behavior. Others maintain that conscientious civil disobedience should excuse acts of political protest. Those with determinist leanings would excuse all criminal acts; indeed, if genes, upbringing, and circumstances determine criminal conduct, there is no rational basis for blaming individuals for violating the criminal law. Carried to this extreme, excuses would engulf the entire criminal law. The practice of blame and punishment would then give way to institutions of social control that focused entirely on the suspect's predicted danger to social interests.

The ongoing controversy about excusing wrong-doers invites attention to the rationale for recognizing and rejecting excuses. The place to begin is with divergent attitudes toward punishment.

Retributive theory. A retributive theory of punishment insists that the actor deserves punishment only if he is personally accountable for violating the law. The assumption is that no one is accountable for unavoidable acts, and excuses argue that the actor could not have avoided committing the criminal act. This standard of "avoidability" should be interpreted normatively. The question always is whether it would be fair under the circumstances to expect the actor to resist the pressures of the situation and abstain from the criminal act. If it would not be fair to expect avoidance of the act, then it cannot be fair to blame and punish the actor for succumbing to the pressures driving him toward the act.

This rationale of excuses rests on the assumption that either internal pressures (insanity, intoxication) or external pressures (duress, natural circumstances) might so intrude upon the actor's freedom of choice that the act committed under pressure no longer appears to be his doing. The act is attributable more to the pressure than to the actor's free choice. If the act is not his, he cannot be blamed for having committed it.

This model of excusing, based as it is on the model of overwhelming pressure, fails to encompass mistake and ignorance of law. In cases such as Lambert, the actor does not succumb to pressure; rather, she chooses to commit an act that, given knowledge of the criminal prohibition, she would presumably not choose to commit. In this sense, an act committed through ignorance fails to qualify as voluntary. In cases of mistake and ignorance of law, the actor does not choose to do wrong. Although the case differs from the model of overwhelming pressure, the wrongful act committed through ignorance ought to be excused, precisely as is the act done under pressure.

This retributive rationale of excuses presupposes that the actor is not accountable for the occurrence of the circumstances generating the excuse. If the actor has voluntarily induced his own intoxication, he cannot rely on intoxication to excuse his conduct. If she has been on a hunger strike, she can hardly claim starvation as an excuse for stealing. Similarly, if he could easily have informed himself of his obligations and had some reason to do so, he cannot plausibly claim mistake of law as an excuse. The antecedent culpability precludes a successful claim that the actor is not accountable at the time of committing the wrongful act.

In cases of insanity, intoxication, duress, and personal necessity, two normative questions envelop the analysis of the asserted excuse: whether the actor could fairly have resisted the pressure impelling him toward the act, and whether the actor is accountable for the circumstances generating the pressure. In cases of mistake or ignorance of law, there is only one normative question: whether the actor is accountable for his state of ignorance. So far as legal systems recognize these excuses, the trier of fact (in Anglo-American law, usually the jury) must assess these normative questions in making a judgment of criminal responsibility.

Utilitarian theory. Beginning with Jeremy Bentham (1748–1832), utilitarians have sought to account for recognized excuses by the following argument: As a measure causing pain, punishment should never be imposed when it is pointless. The purpose of punishment is to deter socially undesirable behavior. Punishment is pointless with regard to classes of actors, such as the insane, who are not deterrable. Therefore, nondeterrables should be excused from punishment for their criminal acts.

H. L. A. Hart was among the first to point out that this argument rests on a "spectacular nonsequitur" (p. 19). Bentham's reasoning assumes that the range of potential deterrables is defined by the precise characteristics of the defendant. He did not consider the possibility that punishing an insane or otherwise excused actor might have a deterrent effect on a whole range of potential criminals defined by broader characteristics. Punishing the insane might deter homicide generally; the utilitarian cannot simply assume that punishing excused actors would be pointless.

Utilitarian arguments are often invoked to justify disregarding possible excuses, such as duress, personal necessity, and mistake of law. By disregarding excuses and holding liable those who have unjustifiably violated the law, the criminal sanction arguably serves to induce higher standards of behavior. Disregarding excuses, therefore, may inflict a negative cost on those punished, but the gains to the many might out-weigh the costs to the few.

The recognition of excuses expresses tolerance for human weakness, both weakness in succumbing to pressure and a weak resolve to keep abreast of one's legal duties. By rejecting human weakness as a defense, the criminal law takes a stand in favor of ideal human behavior. The law thus becomes our moral teacher. Those otherwise excused might be punished, but only in the name of bringing everyone to a higher standard of behavior.

The refutation of this utilitarian argument requires a shift of attention away from creating a better society toward the imperative of doing justice in the particular case. In Director of Public Prosecutions v. Lynch, (1975) A.C. 653, the majority of five judges in the House of Lords expressed this orientation by holding duress available as an excuse in a homicide case, at least in a situation in which the accused merely drove the car to the scene of the murder. Lord Morris rejected the utilitarian view that the law's standard should be higher than the average man can fairly be expected to attain: "The law would be censorious and inhumane which did not recognize the appalling plight of a person who perhaps suddenly finds his life in jeopardy unless he submits and obeys" (671). In Lovercamp, the leading case recognizing a defense in cases of escaping prison to avoid a threatened rape, the court reasoned with similar emphasis: "In a humane society some attention must be given to the individual dilemma" (827; 112). These arguments express compassion for the situation of the accused.

Justification and excuse: similarities and differences

Claims of excuse and of justification have some features in common. In cases of duress or personal necessity, the actor must be aware of the circumstances excusing his conduct; otherwise, it could hardly be said that the circumstances influenced that conduct. Further, these two excuses apply only if the actor responds to an imminent risk of harm. Again, this requirement finds its warrant in the principle that only circumstances overwhelming the actor's freedom of choice should generate excuses. These same requirements appear in justificatory claims, such as those of self-defense and lesser evils, but in that context they express different rationales for limiting the respective defenses.

Three distinctions between claims of justification and of excuse warrant emphasis. First, claims of justification are universal. They extend to anyone aware of the circumstances that justify the nominal violation of the law. If the threatened victim may justifiably defend himself against unlawful aggression, then others in a position to do so may justifiably intervene on his behalf. This feature of universality follows from the justification's rendering the violation right and proper. Excuses, in contrast, are personal and limited to the specific individual caught in the maelstrom of circumstances. This limitation derives from the required element of involuntariness in excused conduct. Sometimes excuses are defined so as to permit intervention on behalf of "relatives or other people close to the actor" who are threatened with imminent harm (German (Federal Republic) Penal Code § 35). The actor's intervening on behalf of this limited circle of endangered people might well be sufficiently involuntary to warrant excuse. Intervention on behalf of strangers is thought to be freely chosen and therefore not subject to excuse.

Second, claims of justification rest, to varying degrees, on a balancing of interests and the judgment that the justified conduct furthers the greater good (or lesser evil). Excuses do not ostensibly call for a balancing of interests. Inflicting harm far greater than that threatened to the actor might well be excused. Yet, indirectly, an assessment of the relation between the harm done and harm avoided might inform our judgment whether the wrongful conduct is sufficiently involuntary to be excused. Committing perjury to avoid great bodily harm would probably be excused, but committing mayhem on several people to avoid minor personal injuries would probably not be. As the gap between the conflicting interests widens, the assessment of the actor's surrendering to external pressures becomes more stringent. This covert attention to the conflicting interests elucidates the normative basis for finding conduct "involuntary."

Third, claims of justification and of excuse derive from different types of norms in the criminal law. Claims of justification rest on norms, directed to the public at large, that create exceptions to the prohibitions of the criminal law. Excuses are different. Excuses derive from norms directed not to the public, but rather to legal officials, judges, and juries, who assess the accountability of those who unjustifiably violate the law. Excusing a particular violation does not alter the legal prohibition. Recognizing mistake of law as an excuse does not change the law; if the excused, mistaken party were to leave the courthouse and commit the violation again, he would clearly be guilty. Neither does recognizing insanity, involuntary intoxication, duress, or personal necessity alter the prohibition against the acts excused on the basis of these circumstances. If someone relies upon the expectation of an excuse in violating the law (say, his ignorance of the law or his being subject to threats), his very reliance creates a good argument against excusing him for the violation. The expectation of an excuse conflicts with the supposed involuntariness of excused conduct.

Identifying excuses

In any given legal system, researchers might encounter difficulty enumerating the recognized excuses. At a certain period of history, certain circumstances might function as an excuse; at a later period the same considerations might be conceptualized as a denial that the act itself is criminal. The fate of the common law excuses se defendendo (self-defense) and per infortunium (inevitable accident) illustrates this process. In the common law of homicide, both of these defenses generated the exemption from punishment known as "excusable homicide" (Blackstone, pp. 182–187; Cal. Penal Code § 195). Treating these claims as excuses reflected the assumption that any killing of another human being was criminal or wrongful. The excuse did not negate this wrongfulness but rather, in the idiom of civil pleading, merely "confessed" the wrong and sought to "avoid" the consequences.

Today both of these claims are treated as denials that the act is criminal. As noted above, the excuse of se defendendo has given way to the statutory justification of self-defense. The excuse of per infortunium has undergone a reconceptualization, and functions now in the form of a denial that the killing was either intentional or negligent. Because it is now assumed that a wrongful killing must be either intentional or grossly negligent, the claim of accident challenges the wrongfulness of the killing.

If these excuses have been absorbed into the analysis of wrongfulness, other claims, properly regarded as justificatory, are occasionally treated as excuses. A good example is the claim of respondeat superior, or superior orders. This claim arises if a soldier or citizen executes "an order of his superior . . . which he does not know to be unlawful" (Model Penal Code § 2.10). If the order is lawful, then presumably the execution would also be regarded as lawful. A lawful act does not raise a question of excusability. However, if the order is unlawful, the actor's ignorance of the legal quality of the order and of his execution might excuse him by analogy with mistake of law. The Model Penal Code formulation encompasses both of these variations in one provision and locates the section in its chapter devoted primarily to claims of excuse rather than justification. The implicit analogy with duress in Section 2.09 of the Code stresses the coercive, rather than the legitimating, aspect of superior military orders.

Although the distinction between claims of justification and of excuse remains defensible in principle, Anglo-American legal thought has yet to achieve consensus regarding the exact nature not only of superior orders but of duress, personal necessity, and mistake of law.

George P. Fletcher

See also Actus Reus; Justification: Theory; Mens Rea; Mistake; Strict Liability.

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