Abstract
My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.
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Notes
See Model Penal Code, § 3.02(2); § 3.09(2).
Because having caused someone’s peril is one of the grounds for imposing a duty to rescue backed by criminal sanctions, Alice, had she not diverted the river onto Ben’s farm, would have been guilty of knowingly causing loss of life, property damage, etc. A duty to rescue does not exist where the rescue would require commission of a crime that was a greater evil than the evil avoided by the rescue. One’s affirmative duty, say, to rescue one’s child from an oncoming trolley does not allow one to divert the trolley to a track on which five workers are trapped. But in Alice’s case, flooding Ben’s farm is a lesser, not greater, evil than letting the town be flooded.
People v. Decina, 138 N.E. 2d 799 (N.Y. 1956).
For me, of course, results do not matter, so I would not distinguish Decina’s attempted homicide from his successful homicide. See Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory Criminal Law (2009), ch. 5.
Shane (Paramount Pictures, 1953).
Death Wish (Paramount Pictures, 1974).
Notice that the actions of Bronson and Palance are in certain respects analogous to the actions of those engaged in police and private “sting” operations. Undercover officers, for example, pose as Johns to catch prostitutes, prostitutes to catch Johns, drug buyers to catch drug sellers, Arab shieks to catch corrupt judges, etc., etc. They commit the “crimes” of soliciting prostitution, the sale of drugs, or bribery for the law enforcement justification of catching and convicting criminals. Bronson and Palance commit the actus reus of homicide in self-defense after having provoked the attacks on them. The undercover officers commit the actus reus of solicitation with a law enforcement justification. They are all purposely trying to incite criminal responses in order to kill (in self-defense) or to arrest.
Dolores Claiborne (Castle Rock Entertainment, 1995).
William Shakespeare, The Tragedy of Othello, the Moor of Venice (est. 1603).
See Alexander and Ferzan, supra note 4, at 136–138.
Alan Brudner agrees with this conclusion. See Alan Brudner, Constitutionalizing Self-Defence, 61 U. Toronto L.J. 867, 871–872 (2011).
The expression comes from the movie Sudden Impact (Warner Bros. Pictures, 1983), in which detective Harry Callahan, played by Clint Eastwood, tells the murder suspect, who is considering drawing a weapon, “Go ahead, make my day!”.
Acknowledgments
I wish to thank the participants at the conference on Acto Libera in Causa for their comments.
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Alexander, L. Causing the Conditions of One’s Defense: A Theoretical Non-problem. Criminal Law, Philosophy 7, 623–628 (2013). https://doi.org/10.1007/s11572-013-9221-1
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DOI: https://doi.org/10.1007/s11572-013-9221-1