Document Type
Article
Publication Title
American Criminal Law Review
Publication Date
2006
Volume
43
First Page
1317
Abstract
The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures. Currently, the criminal law deals with such acts of minority defendants through the excuse approach. It begins by relying excessively on the individual discretion of judges, prosecutors and law enforcement officials to achieve just results in such cases. When discretion fails, the status quo then employs the legal fiction of ill-fitting excuse defenses like temporary insanity and extreme emotional disturbance. The troubling message of the current approach is that minority defendants commit wrongful acts but are not blameworthy because they suffer from the defect or disability of their culture. The proposal of the Article is to replace this current excuse approach with a justification approach. In Part II, it explains the theoretical distinctions that separate excuse from justification and offers some elements and limits to a justification defense. It even describes some available doctrinal vehicles through which the criminal law can adopt the justification approach. In Part III, the Article applies the justification approach to three famous cultural defense cases. It uses the cases to make a powerful comparison of the relative weaknesses and strengths of the excuse approach and the justification approach. Adopting justification will eliminate the use of legal fictions, will force the criminal law to directly confront the difficult moral questions posed by such cases and will advance the cause of cultural pluralism in the criminal law.
Comments
Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=895276