There are fifty-two bodies of criminal law in the United States. Each stakes out often diverse positions on a range of issues. This article defines the “American rule” for each of the issues relating to general defenses, a first contribution towards creating an “American Criminal Code.”
The article is the result of a several-year research project examining every issue relating to justification, excuse, and non-exculpatory defenses. It determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects that majority rule. The article also compares and contrasts the majority position to significant minority positions, to the Model Penal Code, and to the National Commission’s proposed code.
Using these results, in focusing on the most controversial justification defense, Defense of Persons, the article then compares patterns among the states on legal issues with a wide range of other variables—such as state population, racial characteristics, violent crime rates, and gun ownership—highlighting many interesting correlations. Applying this kind of doctrinal correlation analysis to all of the project’s existing data would be a major undertaking. The goal here is to show how such analysis can be done, and how interesting the revealed patterns can be.
justification, excuse, non-exculpatory defense, Model Penal Code, National Commission, majority view, lesser evils, execution of public duty, self-defense, defense of persons, defense of property, defense of habitation, deadly force, law enforcement authority, persons with special responsibility, mistaken justification, insanity, involuntary intoxication, immaturity, duress, involuntary act, mistake of law, legality, statute of limitations, entrapment, doctrinal correlation analysis, duty to retreat, resisting unlawful arrest, gun ownership, racial composition, police conduct, rural and urban populations, population size
Journal of Legal Analysis
Robinson, Paul H.; Kussmaul, Matthew; Stoddard, Camber; Rudyak, Ilya; and Kuersten, Andreas, "The American Criminal Code: General Defenses" (2015). Faculty Scholarship. 1425.