Please join us on Wednesday Oct 25, 4-6pm, for a talk by Stuart Green (Rutgers), ‘Defense Exceptionalism’. Pre-reading is encouraged but not required – paper is accessible via this link. Teams link for the seminar session below.

The law of homicide is exceptional within the criminal law in a variety of ways, including in: the severity of its sanctions; the complexity of its grading and labeling; the difficulties it faces in defining its protected class (especially at the beginning and end of life); and the fact that it recognizes defenses and partial defenses (including self-defense and provocation, respectively) that do not apply to other crimes. In this paper, I focus on yet another, particularly striking, form of homicide exceptionalism: four important defenses that apply generally to other crimes, but in many jurisdictions do not apply to murder and other homicide offenses. These are consent, necessity, duress, and statutes of limitations.

At first glance, such exceptionalism, across such a broad array of key defenses, is surprising. Each of the four defenses has its own distinct conceptual and normative basis: Consent is often understood as a failure-of-proof (or, alternatively, justification) defense; it is meant to further the aim of personal autonomy by giving the would-be victim control over what others do to his body, property, and other interests. Necessity is recognized as a justification defense; it permits the defendant to engage in conduct that, though it would otherwise violate the law, prevents a greater harm from occurring. Duress is understood as an excuse defense; it recognizes the supposed unfairness of holding a defendant, threatened with serious harm unless he acts, to a moral standard that few in society could be expected to live up to. And statutes of limitations (where they apply at all) are viewed as a “nonexculpatory public policy defense”; their goal, it is said, is to promote fairness and accuracy in criminal proceedings and the interest defendants have in “repose.”

All four defenses certainly could be applied across the board to all criminal offenses. So why not apply them to homicide? The goal of the piece is not so much to recommend or disparage any of the four homicide exceptions, but rather to examine their underlying logic and rationale, engaging in a project of “normative reconstruction.”  We will want to consider the extent to which the supposed justification for each of the exceptions is like or unlike the justification for the others. More generally, we will want to ask what such exceptions tell us about the basic defenses themselves and about the distinctive interests the law of homicide is meant to protect.

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