Excuse: Theory

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.