Excuse: Theory

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.