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Excuses get a doctrinal foothold in our theory in two ways. First, by judging the actor’s conduct to be a gross deviation from what a reasonable person would do, our theory already encompasses the realm of reasonable actions that are excused, such as those taken because of duress. Second, the question of whether the actor has consciously disregarded a risk for unjustifiable reasons should take into account the quality of the actor’s deliberations. To the extent that the actor’s rationality is partially or fully impaired, he is entitled to mitigation or a complete excuse.

We devote the vast majority of this chapter to explicating how justifications and excuses fit within our model. We explore the normative questions raised by many of these doctrines. Although we do not answer all of the questions we raise, we show how they fit within our schema.

At this point, however, we wish to address some preliminary questions. There is significant debate over the nature of justif ication and excuse, and over the way these doctrines can and should operate. Because our view radically revises the terrain, we begin by discussing the anticipated objections to our remodeling.

A. EVISCERATING THE OFFENSE-DEFENSE DISTINCTION

Some will argue that our model collapses important moral distinctions. For example, George Fletcher argues that the distinction between offenses and defenses is substantive, not formal. The prima facie norm tells people, “Do not kill,” and then a defense allows people “to kill only when threatened with deadly force by another.” Collapsing these two, Fletcher contends, is equivalent to treating the unlawful aggressor like a “fly” because we eliminate the prima facie norm against killing other people.17

We disagree. It is difficult to see why an offense definition cannot embody both a prima facie norm and its negation. Offenses are more complex than prima facie norms. Many require mens rea terms that, at least according to some theorists, are not part of the norm itself but part of the grounds for attributing the offense to the actor. Offenses can also require that the actor’s conduct be, or the actor believes his conduct to be, justified. Indeed, a significant number of laws are risk-creation

17See George P. Fletcher, “The Nature of Justification,” in Action and Value in Criminal Law (Stephen Shute et al., eds., 1993).

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offenses, in which we tell people that it is permissible to risk harm for certain reasons but not for others. If, ultimately, the message to citizens is that it is permissible to kill culpable attackers, there is no reason why this message, rather than requiring a separate defense, cannot be embodied within the definition of the offense.

B. ELIMINATING THE WRONGDOING-CULPABILITY DISTINCTION

A similar distinction that our formulation eliminates is that between wrongdoing and culpability. In our view, the focus of the criminal law should be on whether the actor has committed a culpable act. We do not believe that the criminal law should concern itself with nonculpable harmings, such as when an actor, unaware of the risk of death he is imposing, kills another human being.

Those who believe that justifications must be understood to be the mirror image of wrongdoing, and excuses the mirror image of culpability, may object that our model conflates justification and excuse.18 Justifications, they claim, are mind independent; excuses, on the other hand, look to the mental states of the actor.

Our theory, however, is perfectly consistent with various understandings of justifications and excuses. Our justification formula is about whether the reasons for acts outweigh risks those acts impose. We excuse those who are substantially rationally or volitionally impaired. As we discuss later in this chapter, we are also quite sympathetic to the view that justifications are objectively defined. However, because on our view the criminal law’s concern should be culpability, whether the actor’s conduct is justified because of the facts that actually exist or alternatively because of his beliefs about such facts will not matter because his culpability is not affected by any mistaken beliefs. Whether these alternative theories of justification matter in terms of their implications for third parties is a matter we discuss later in the context of self-defense.

Additionally, we doubt that all justifications can be understood independently of the subjective mental states of the actor. Consider Ken who decides to kill Leo. After Ken shoots Leo, we learn that Leo was

18 See Hurd, supra note 9; Westen, supra note 16.