CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 22, 2009

Consequentialism and Forfeiture of the Choice-of-Evils Defense (Alexander and Cole)

Cole Alexander Marc DeGirolami’s recent manuscript about the choice-of-evils defense, noted here by CrimProf, raises interesting questions about the relationship of the defense to criminal law theory. He cites several scholars for the proposition that choice-of-evils is more at home with a consequentialist than a retributivist justification for punishment. He then argues that the consequentialist account is inconsistent with forfeiture of the defense for those who bring about the necessity for choosing among the evils in question.

We disagree with the idea that pure retributivists would reject a necessity defense. And we also disagree that forfeiture of the defense is appropriate for those who cause the necessity in question, except possibly for reasons that do not implicate deep theoretical concerns.

The idea that retributivists would reject a necessity defense may be explained, in part, by the increased likelihood that retributivists would reject an unconstrained approach to choice of evils. Those attracted to a deontological theory like retributivism are more likely to be attracted to deontological constraints on killing in a case like Dudley & Stephens, for example,  than would pure consequentialists (who would not be “pure” if they rejected welfare-maximizing killings).

Nevertheless, in many cases, the choice of a lesser evil will not offend a deontological command, and a retributivist might well embrace the defense. Indeed, it would be an odd version of retributivism that required punishment of the prisoner who steps outside the prison walls to avoid a fire. These cases do not raise great questions of retributive justice so much as they illustrate the admirable reluctance of legislators to attempt to draft crimes so comprehensively as to address every situation. Surely, a retributivist need not object to an escape statute that provides an explicit exception for cases in which escape is necessary to preserve life.

Accordingly, we would not be surprised if some limitation of the necessity defense could be explained only in retributive terms, as we believe the defense itself can be embraced consistently by a pure retributivist. But we are also substantially less attached than is Marc to the forfeiture doctrines surrounding the defense. We view them sometimes as errors rather than as windows into the nature of the criminal law—errors that reflect not some deeply held attitudes about criminal law, but rather the rare circumstances in which the defense is aptly raised, and a judicial tendency to err on the side of cumulating reasons for rejecting the defense without examining them all carefully. At other times, forfeiture simply compensates for the incompleteness of criminal codification.

Consider the case in which an actor’s illegal act gives rise to the need to choose among evils. Wrongdoer tries to burn a barn to collect insurance proceeds, but the fire spreads unexpectedly, and so Wrongdoer trespasses on Neighbor’s property to use a hose to protect that property. We see no reason to add trespass to the charges against Wrongdoer, and reason not to do so—the possibility of deterring Wrongdoer from taking the steps that are socially desirable, given the initial wrong for which Wrongdoer will be fully punishable.

Nor does some deep principle require forfeiture of the defense even when Wrongdoer clearly envisioned and planned to trespass on Neighbor’s property at the time Neighbor set fire to the barn. At the most, forfeiture in a case like this simply reflects the fact that Wrongdoer was culpable not only for the fire, but also for the trespass. In some cases, forfeiture of the defense may not be needed to punish for this second harm. When the second offense is a result crime—e.g., if Wrongdoer had needed to kill Neighbor by burning Neighbor’s house to create a fire break in order to save a greater number of people—then even without forfeiture, we could punish Wrongdoer for Neighbor’s death because it was culpably caused by Wrongdoer’s act in setting fire to the barn. We need not worry about deterring Wrongdoer from killing Neighbor, since Wrongdoer will be liable for killing more people through omitting to kill Neighbor, and Wrongdoer has a duty to act because of prior culpability.

Trespass as a second offense is a bit different from murder, because trespass does not have a result element, and therefore does not seem satisfied simply by showing that unjustified conduct at time 1 caused justified conduct at time 2. If forfeiture of the defense in this kind of case helps us to get to the right outcome, it is not because forfeiture is inconsistent here with consequentialism. Rather, when we threaten Wrongdoer with punishment, the optimal threat will be greater than the threat designed to deter simple arson, because Wrongdoer intends the greater harm of arson plus trespass. Forfeiture helps us get to this consequentially justified threat by getting around the time-framing problems that are more difficult to evade with conduct crimes than with result crimes.

For a fuller discussion of some of these ideas, take a look at Larry's book (with Kimberly Ferzan), Crime and Culpability: A Theory of Criminal Law (Cambridge Univ. Press, 2009). .


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