An Attitudinal Theory of Excuse

The mother lode of criminal law scholarship is a unitary theory of excuses, that is, a normative account as to why a person who engages in conduct that a criminal statute prohibits ought nevertheless not be blamed for it. After defining Aexcuse@ against commentators who argue that it cannot be coherently defined, and after criticizing competing theories of excuse, I argue that the feature that renders persons normatively blameless -and, typically, legally blameless, too -for engaging in conduct that a criminal statute prohibits is the possession of a certain attitude with which he engages in it. A person is normatively blameless if, despite engaging in conduct that a statute prohibits, he was motivated by proper respect for interests that the statute seeks to protect. Professor of Law, Michigan Law School. I am deeply indebted to Joshua Dressler and Tom Green for their thoughtful and meticulous comments on the entirety of essay; to Antony Duff, Sandy Kadish, Kent Greenawalt, Ken Simons, and Lloyd Weinreb for their comments on portions of an earlier draft; to Douglas Husak for engaging in extended correspondence with me about justification and excuse; and to Jonathan Westen for bracing conversations about justification and excuse while backpacking in the Sangre de Cristo mountains. AN ATTITUDINAL THEORY OF EXCUSE The mother lode of criminal responsibility scholarship is a unitary theory of criminal excuses, that is, a persuasive normative account of why the criminal law adjudges actors to be blameless despite their having committed criminal wrongs. The law=s other criminal defenses do not readily lend themselves to unitary normative accounts or, if they do, rest on normative accounts that are self-evident. Consider what Paul Robinson aptly calls Anon-exculpatory@ defenses, that is, defenses like double jeopardy and diplomatic immunity that bar actors from being tried for reasons that are independent of whether or not they engaged in the blameworthy conduct with which they are charged. Individual non-exculpatory defenses such as double jeopardy may be difficult to explicate, but double jeopardy and diplomatic immunity share nothing normative in common, except that, like all nonexculpatory defenses, they bar actors from being tried and convicted. Consider, too, a defendant who denies that he committed the actus reus of a charged offense or who claims that, if he committed it, he did so because it was the lesser of two evils and, hence, justified. Unlike non-exculpatory defenses, these are veritable Aexculpatory 1 See Michael Moore, Choice, Character, and Excuse, in PLACING BLAME 548 (Oxford: Clarendon University Press, 1997)(A[Excuses are the royal road to theories of responsibility generally@). For others who have proposed theories of excuse, see Richard Brandt, A Motivational Theory of Excuses, in J. PENNOCK AND J. CHAPMAN, EDS., NOMOS: CRIMINAL JUSTICE 165 (New York: New York University, 1985); Michael Corrado, Notes on the Structure of a Theory of Excuses, 82 J. CRIM. L. & CRIMINOLOGY 465 (1991); Joshua Dressler, UNDERSTANDING CRIMINAL LAW ' 17.03 (3d ed., New York: Lexis Publishing, 2001); Claire Finkelstein, Excuses and Dispositions in Criminal Law, 6 BUFF. CRIM. L. R. 317 (2002); George Fletcher, RETHINKING CRIMINAL LAW 798-817 (Boston: Little, Brown, 1978); John Gardner, The Gist of Excuses, 1 BUFF. CRIM. L. R. 575 (1998); H.L.A. Hart, Legal Responsibility and Excuses, in PUNISHMENT AND RESPONSIBILITY 28 (Oxford: Clarendon Press, 1968); Sanford Kadish, Excusing Crime, 75 CALIF. L. REV. 257 (1987); Paul Robinson, Excuses, in STRUCTURE AND FUNCTION IN CRIMINAL LAW 81-94 (Oxford: Oxford University Press, 1997); Robert Sullivan, Making Excuses, in A. Simester & A. Smith, eds., HARM AND CULPABILITY 131 (Oxford: Clarendon Press, 1996); George Vuoso, Background, Responsibility, and Excuse, 96 YALE L.J. 1661 (1987); Glanville Williams, The Theory of Excuses, 1982 CRIM. L. REV. 732. 2 See Paul Robinson, STRUCTURE AND FUNCTION IN CRIMINAL LAW 71-77.