Abstract: For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded. The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages. Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work.

Abstract: The Model Penal Code: Sentencing project (MPCS) is nothing like a book, journal article, or dissertation. There is no unifying narrative thread and no manageable number of discrete storylines. Instead, it is a compendium of recommendations concerning important topics that arise in the sentencing codes of the American states. This is a broad field of coverage, a bit uncertain in definition, embracing many ‘subtopics’ that have consumed whole academic careers. Because of its scope, the project

Abstract: This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical analysis that may actually make American sentencing less arbitrary and, importantly, less severe. When the Code retreats to retributive or desert theory, it appeals to indeterminate and unpredictable principles that threaten to undermine the new provisions’ more salutary proposals.

Abstract: This lecture offers a broad review of current punishment theory debates and the alternative distributive principles for criminal liability and punishment that they suggest. This broader perspective attempts to explain in part the Model Penal Code's recent shift to reliance upon desert and accompanying limitation on the principles of deterrence, incapacitation, and rehabilitation.

Abstract: It is an honor to be part of this Symposium. I am grateful to Professor Fontaine for inviting me to take part, particularly when he knows that I am among those who are not convinced that the provocation defense is “definitively one of excuse.” In this Essay, I evaluate the evidence of “adequate nonprovocation” that Fontaine puts forward to show that the heat of passion defense is decidedly an excuse (more precisely, a partial excuse). I will be focusing my remarks on the traditional heat of passion defense. As I see it, the traditional heat of passion defense is mostly an excuse, but has a justificatory component. But the same is not true of the Model Penal Code (hereafter, MPC) version of the defense, the extreme mental or emotional disturbance defense (EMED). As Fontaine notes, the MPC version of the defense was carefully crafted to leave no doubt about its status, and although one might nonetheless claim that the drafters failed to

Abstract: III. “GOOD TIME” .................................................. .........................780 A. Purposes of Good Time ...................................................782 B. Federal “Good Time”....................................................784 C. “Good Time” in the States ..................................................7 89 D. Rejecting Good Time ......................................................791 E. Good Time in the Model Penal Code: Sentencing Drafts..............................................................................792

Abstract: Writing in 1984, Professor Greenawalt described cases on the excuse justification border as "perplexing" He concluded that two of the most frequently articulated reasons for distinguishing between justifications and excuses?warranted versus unwarranted conduct, objective and general versus subjective and individual? are not as descriptively clean as they sometimes purport to be The "conceptual fuzzi ness" that Greenawalt documents is inherent in the nature of the acts themselves; they are neurobiologically indistinct Justifications and excuses in the boundary cases trigger both our emotional and cognitive processing areas almost simultaneously The emo? tions tend to precede the cognitive, but only long enough to focus attention on the immediate threat The conceptual blur will continue as long as our jurisprudence rigidly categorizes conduct that exists only on a continuum This is not a new problem The law tends to break down into categories?guilty or not guilty, for example But the world is not binary; it is continuous, and categorical thinking tends to distort our view of the world The Model Penal Code divides mens rea into four categories The drafters concede that mens rea exists only on a continuum and cannot be rationally determined without question-begging This approach constitutes an implicit recognition of the way in which our control functions actually operate It is time to acknowledge that these problematic excuse-justification cases defy categorization and thereby eliminate the confusion by adopting an advertently hybrid defense CITATION: Theodore Y Blumoff, The Neuropsychology of Justifications and Excuses: Some Problematic Cases of Self-Defense, Duress, and Provocation, 50 Jurimetrics J 391-424 (2010) *Professor of Law, Mercer University, Macon, GA My sincere thanks to many individuals who have helped along the path to this manuscript, including Oliver Goodenough, Owen Jones, Karen Kovach, Harold Ixwis and Stephen Morse I thank the many friends and colleagues who provided useful comments and suggestions on earlier versions of this paper, including the anony? mous reviewer at Jurimetrics As always, I am grateful for the ongoing support of Mercer University School of Law and Dean Daisy Floyd

Abstract: Writing in 1984, Professor Greenawalt described cases on the excuse/justification border as “perplexing.” He concluded that two of the most frequently articulated reasons for distinguishing between justifications and excuses - warranted versus unwarranted conduct, objective and general versus subjective and individual - are not as descriptively clean as they sometimes purport to be. The “conceptual fuzziness” that Greenawalt documents is inherent in the nature of the acts themselves; they are neurobiologically indistinct. Justifications and excuses in the boundary cases trigger both our emotional and cognitive processing areas almost simultaneously. The emotions tend precede the cognitive but only long enough to focus attention on the immediate threat. The conceptual blur will continue as long as our jurisprudence categorizes rigidly conduct that exists only on a continuum. This is not a new problem. The law tends to break down into categories - guilty or not guilty, for example. But the world is not binary; it is continuous and categorical thinking tends to distort our view of the world. The drafters of the Model Penal Code’s mens rea provisions, which divide into four categories and which the drafters concede exist only on a continuum and cannot be rationally determinate without question-begging, constitute implicit recognition of the way in which our control functions actually operate. It is time to acknowledge that these problematic excuse/justification cases defy categorization and thereby eliminate the confusion by adopting an advertently hybrid defense.

Abstract: I. FOR AND AGAINST THE FELONY MURDER RULE: THE WELL-WORN ARGUMENTS A. Traditional Arguments in Opposition B. Traditional Arguments Supporting the Rule II. WHAT KIND OF FELONY MURDER STATUTE? GOOD ONES AND BAD ONES A. "Good" Felony Murder Definition (Although "Good" Is Always in the Eye of the Beholder) B. "Bad" Felony Murder Definition (Although "Bad" Is in the Eye of the Beholder, Too) III. EVALUATING THE NEWER ARGUMENTS AGAINST THE FELONY MURDER RULE A. Restatements of Traditional Arguments B. Newer Arguments Against the Rule CONCLUSION The felony murder doctrine has long been a target for detractors. (1) In some instances, the criticisms have had merit, or at least they have had merit when aimed at certain ill-considered formulations of the rule. (2) In other cases, however, the critics have articulated poorly reasoned arguments. Surprisingly, this group includes the drafters of the Model Penal Code (MPC) (3) and the Michigan Supreme Court, (4) which saw no arguments whatsoever for the rule. There was a time when virtually no commentator could find anything to say in favor of retaining the rule, even though it had proven extraordinarily durable over time and almost every state had chosen to retain it. (5) That history ought to have prompted scholars to consider whether there might be valid reasons for the near-universal retention of the felony murder doctrine, but for most of the rule's existence, few scholars did so. In 1985, my co-author and I attempted to do what had been neglected up until that time: describe the policies that are arguably served by the felony murder rule. (6) The resulting article, In Defense of the Felony Murder Rule, appeared in the Harvard Journal of Law and Public Policy, has been cited by a wide variety of courts, and appears in almost every criminal law casebook. (7) Our conclusion was that the question whether to retain the felony murder rule could be argued either way, but that the decision should not be made with a blind eye toward the reasons for retaining the rule. Since that time, the debate has changed. Opponents of the rule still exist, and they should. But with relatively few exceptions, academics no longer argue that the felony murder rule is without any support. (8) The debate continues, of course. It largely--although not entirely--consists of arguments that detract from the felony murder rule. But there are two remaining questions. First, what arguments, if any, can furnish answers to the newer criticisms of the rule? As was the case years ago, many of the criticisms are subject to answers or counter-criticisms, but the answers have not been uniformly developed. Second, given that most jurisdictions still retain the felony murder doctrine in some form, how should a statute expressing the rule be designed? As is the case with any other legal principle, there are both good and bad versions of the felony murder doctrine. This Article is an attempted reply to the rule's opponents, including the newest critics. It also contains an appraisal of different types of felony murder laws. Part I briefly summarizes the older rationales for and against the felony murder doctrine, including the arguments contained in the earlier article referred to above. Part II describes various forms that the felony murder rule takes in different states and under a variety of statutes today. Some of the versions are sound; others are not. Part III considers some of the most salient new criticisms of the rule. This discussion illustrates that the relative merit of the criticisms depends heavily upon which version of the rule is at issue. The Conclusion recognizes that retaining the felony murder rule is a policy decision that can be argued either way, but contends that the decision should not be made with a one-sided bias. In addition, the Conclusion includes the observation that when evaluating the criticisms, a great deal depends upon which version of the felony murder doctrine the critics choose to denounce. …

Abstract: For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded. The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages. Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work.

Abstract: Most modern statutes and the Model Penal Code dispense with the distinctions between principals and accessories, and hold persons legally accountable if they commit the act, solicit the commission of offense, aid in commission, or, in some instances, fail to take proper efforts to prevent it. In order for a person to be convicted of a crime, the prosecution must show that the person charged committed a prohibited act or failed to act when he or she had the legal obligation to do so. This principle, referred to as actus reus, may involve an actual physical movement or may consist of verbal acts. However, one cannot be punished for evil intent without an act, nor for a violation of a statute that makes status alone a violation. Although in the usual case an affirmative act is required to support a conviction, in some instances, liability can rest upon the failure to act if there was a legal responsibility to do so.

Abstract: On June 13, 2007, Paul Formella, a junior at Hanover High School in New Hampshire, and two friends were studying at the town library near school. The school had a regular early dismissal day that afternoon, releasing the students at 2 p.m. After studying for about two hours, Paul and his buddies returned to school to retrieve some books from their second-floor lockers. Upon entering the school, they encountered a group of six students who said they intended to steal the mathematics final exams from the third floor. Paul's threesome agreed to serve as lookouts from the second floor, with instructions to yell, "did you get your math book?" up to the third floor to alert the thieves if someone was coming. Paul and his two friends collected their books from their lockers and had second thoughts about alerting the thieves. They decided to head back to the first floor to wait for the other group. As they headed down the stairs, they encountered two janitors, who told them to leave the building. They did so but waited in the parking lot for the other group. When the others arrived, all of the students shared the exam questions, which included those for Advanced Math Honors that Paul was scheduled to take two days later. Eventually, 40 to 60 other students reportedly accessed the stolen exams. The following week, the assistant principal learned that some students had stolen the exams. The assistant principal called police, who interviewed Paul as part of their investigation. He admitted his involvement in the theft, leading to charges and ultimately conviction of acting as an accomplice. Convicted of this crime, Paul appealed his conviction to the state's highest court, because New Hampshire does not have an intermediate, appellate court. He claimed two reversible errors: 1) that the evidence was insufficient for guilt beyond a reasonable doubt, and 2) that the trial judge's failure to make factual findings of the timing of his withdrawal from the theft and the timing of the completion of the theft precluded application of the defense in the accomplice provision of the state's criminal code. Specifically, said provision excludes from accomplice culpability a person who "terminates his complicity prior to the commission of the offense and wholly deprives it of effectiveness ... or gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent commission of the crime." On November 21, 2008, the Supreme Court of New Hampshire rejected Paul's arguments, thus affirming his conviction as an accomplice to theft. (1) The judges were unanimous that--subject to their disposition of Paul's second claim--the evidence met the requisite quantum of proof based on Paul's confession to the captain of the Hanover police department, who testified credibly at the trial. Indeed, he did not dispute the precedent that agreement and action to serve as a lookout suffices for accomplice liability. For Paul's second claim, the judges reached the same conclusion by two different routes. At issue was whether 1) Paul terminated his complicity, 2) the termination was prior to the commission of the crime; and 3) Paul wholly deprived his complicity of effectiveness. Paul met the first of these required elements. But the Model Penal Code and its accompanying commentary require an affirmative overt act, such as making one's disapproval known to the principals sufficiently in advance of the commission of the crime to allow them time to reconsider. The majority of the justices concluded that Paul did not meet this requirement. Instead, recalling Paul's testimony that he and his companions had simply left the scene after initially checking to "confirm or dispel" whether anyone was around, the court observed: He did not communicate his withdrawal, discourage the principals from acting, inform the custodians, or do any other thing which would deprive his complicity of effectiveness. …

Abstract: After learning that the man she loves is the son of her "great enemy," Juliet goes to her window and speaks: "What’s Montague? It is nor hand, nor foot, Nor arm, nor face, nor any other part belonging to a man. O, be some other name!" Unaware that Romeo is listening from the Capulets’ garden below, she continues her now-famous reflections: "What’s in a name? That which we call a rose by any other word would smell as sweet." Like Juliet, numerous criminal law scholars have assumed that names are merely arbitrary symbols, capable of being changed with impunity to avoid unwanted connotations. According to these critics, the mellifluous names and definitions of criminal law are "amorphous," "broad," even meaningless. The defining characteristic of murder, malice aforethought, is said to be "inscrutable on its face" and "a term of art, if not a term of deception." The premeditation-deliberation formula is criticized as a "mystifying cloud of words." And the various definitions of Depraved Heart Murder are dismissed as "notoriously unhelpful," "a collection of colorful verbiage" that "tend[s] to carry more flavor than meaning." Disdaining criminal law’s figurative language, with its inevitable ambiguity, legal scholars have urged replacing the traditional terms with words whose meaning is precise and consistent. In a concrete manifestation of this ambition, the American Law Institute sponsored the creation of the Model Penal Code, which has been adopted in part by roughly half the states. The explicit purpose of the Code is to "dispel the obscurity of the Common Law." In contrast to these critics, Professor Duncan’s article seeks to show that the Common Law language of Criminal Law is valuable for its meaning, its beauty, and its rich historical resonance. Rather than being a failed attempt at precise language, the Common Law terms are, she proposes, a different kind of language altogether. It is what philosopher Philip Wheelwright calls expressive or depth language, whose ambiguity stems not from sloppiness but from an effort to unite diverse associations and thereby invent new meanings.

Abstract: Introduction It is very important that the instructor--at the outset--compare and contrast the similarities between the criminal law and the civil (i.e., tort) law. In tort law, a private party plaintiff may sue a defendant for an assault or battery while the same defendant might be charged by the government (i.e., the state) for criminal assault or criminal battery. For each alleged criminal misconduct, the state must prove that an act occurred (actus reus) which violated a federal or state statute and that the defendant had the intent to commit such act (mens rea). The district attorney'fs office makes the determination as when to prosecute for criminal misconduct based upon the evidence in the case and the willingness of the victim to press charges (New York Times, 2007). The student should be encouraged to ask why prosecutors pursue charges in some sport incidents and not others. For example, why do Canadian jurisdictions prosecute misconduct during a hockey game substantially more than the American counterparts? A lot depends upon the locales expectations regarding what degree participants impliedly consent to certain conduct and to what extent the conduct be characterized as illegitimate (unacceptable) violence (Clarke, 2000; Katz, 2000; Harary, 2002; Yates & Gillespie, 2002; Barry, Fox & Jones, 2005). Assault and Battery Beginning the study of the criminal law in sport with assault and battery before moving on to the other subjects is quite effective. The crimes of assault and battery involve the unwelcome and excessive physical contact between two or more persons. Definitions of assault and battery differ among the states and the student should be advised to research their own state statutes. However, the instructor should mention that the Model Penal Code was drafted to assist state legislatures in defining what constitutes criminal misconduct and to standardize and create more uniformity throughout the country with regard to the criminal law. It divides criminal assault into two categories: simple or aggravated (Osborne, 2006). A person is guilty of simple assault if he attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or negligently causes bodily injury to another with a deadly weapon; or attempts by physical menace to put another in fear of imminent serious bodily injury. Similarly, a person is guilty of aggravated assault if there was the attempt to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon (Model Penal Code [section] 2.11.1; Osborne, 2006). Implied Consent In sports such as boxing, football, hockey, wrestling, and others, aggressive physical contact is an expected part of the contest. Some courts recognize this as the implied consent doctrine: that is, participants voluntarily assume certain risks of injury or violence during a sport activity. However, at what point does aggressive participation cross over into an excessively violent act in which a possible crime occurred? Is there a bright-line test in which participants, referees, coaches and spectators recognize that the type of violence which occurred is so far beyond the expected rules of the game that the participant could actually be charged with a crime such as assault or battery? The instructor carries the burden here of presenting such challenges for judges, and students must recognize that there is no clear-cut answer and each act of aggression or violence is different (Harary, 2002; State v. Guidugli, 2004). In the Washington state case of State v. Shelley, a pickup basketball game turned into a brawl in which one player punched another in the face, breaking his jaw. In addition to the criminal charges, the court in the civil case utilized the Model Penal Code's [section] 2. …

Abstract: The Model Penal Code identifies, "conduct during hypnosis or resulting from hypnotic suggestion," as an exception to a, "voluntary act," that is a requirement for responsibility for a crime, on the basis that such cases are involuntary and thus not the responsibility of the actor involved. This paper argues that this exception is not sufficiently well grounded in experimental evidence or known instances of criminal activity under the influence of hypnosis to justify such a general exception in the law, and that allowing such an exception has the potential to create a moral hazard by making hypnosis an excuse for criminal conduct. While such cases of coercive hypnosis may genuinely occur, the circumstances under which it may occur are narrower than the exception describes. This paper summarizes the empirical evidence from studies of hypnosis and past cases in the criminal law where hypnosis was alleged to have produced involuntary criminal actions and argues against the MPC's hypnosis exception to a voluntary act.