Excusing and The New Excuse Defenses: A Legal and Conceptual Review

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This essay addresses the current criminal law debates about excusing by canvassing the issues and arguments concerning excusing, in general, and the new excuses, specifically. It concludes that the current system of criminal blame and punishment is coherent, fair in principle, and can accommodate the claims for new excuses. In particular, the essay claims that the fairness of blaming and punishing is immune from attacks based on the possible truth of determinism, which allegedly would render these practices unjust, and provides a general, unifying defense of responsibility and the excuses. The essay considers many of the leading explanations of the excuses and concludes that they are misleading. "New syndrome" claims are covered in detail. Many of the new claims can be brought within the ambit of current criminal law defenses, albeit with reasonable modifications to current doctrine in some cases. Indeed, the syndromes that underpin claims for new excuses, properly understood, do not raise new legal issues that demand substantial restructuring of criminal law theory or doctrine, even if they do raise fresh biomedical or social scientific issues. Modifications to existing doctrine are in general preferable to the wholesale creation of new excusing conditions. Finally, the essay provides and defends a generic theory of excusing and a new, generic doctrine of partial excuse that would justly respond to increased understanding of human behavior.

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Crime and Justice