Why Don’t We Punish People Who Kill in Self-Defense?

My colleague Janie Kim has a fascinating new article on SSRN called The Rhetoric of Self-Defense. In the article, she explores a surprising difficult problem in criminal law theory: why we don’t punish people who kill in order to save themselves from deadly attacks. I say “surprisingly difficult” because the self-protection defense is a well-established, noncontroversial aspect of criminal law. Compared to, say, the insanity defense, self-protection provokes little deep-seated opposition. Indeed, some purported self-defenders (like Bernhard Goetz, pictured above) have become folk heroes of sorts. Given its intuitive appeal and widespread support, the self-protection defense must rest on a firm theoretical foundation, right?

It turns out, though, that the dominant strands of criminal law theory have a hard time providing a compelling justification for the defense.

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Priorities for the Next President: Criminal Justice Policy

I’ve just received the latest issue of the Federal Sentencing Reporter, which is entirely devoted to ideas for criminal justice reform for the next Administration. The contributors are an amazingly diverse and well-credentialed bunch, including two U.S. Senators, two Congressmen, two representatives of the U.S. Department of Justice, a judge of the Missouri Supreme Court, the head of the Minnesota Sentencing Guidelines Commission, the former special projects director of the U.S. Sentencing Commission, and representatives of the Heritage Foundation, the Cato Institute, the National Association of Criminal Defense Lawyers, the American Bar Association, the Federal Defenders, the private defense bar, and the legal academy. The contents are more specifically described through links here. (Unfortunately, little besides the table of contents is available for free download, although my own humble contribution to the issue is described in this post.  As an author, I do have a few extra copies that I would be happy to give away; please e-mail me your address if you are interested.) I look forward to reading what looks like a rich set of ideas by some of the most interesting thinkers and influential leaders in the criminal justice field.

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The Culpability of Passive Abuse

Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system.  What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather.  Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison.  Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes? 

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