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The Psychotic Aggressor — A Generation Later

Published online by Cambridge University Press:  04 July 2014

George P. Fletcher
George P. Fletcher
Affiliation:
Beckman Professor of Law, Columbia University School of Law.
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Extract

Some twenty years ago my imaginary character the “psychotic aggressor” made his debut in the pages of the Israel Law Review. Of all the hypothetical cases I have devised over the years, the story of the psychotic aggressor in the elevator, attacking someone who must defend herself, has become one of the most vigorous and long-lasting. This unlikely case has proven to be a useful medium for understanding the difference between claims of justification and claims of excuse in structuring criminal liability. Everyone assumes that the person attacked should be able to defend herself; the problem is whether the defense is right and proper (justified) or whether it is simply the human response and therefore free from blame (excused). This classification has implications, in turn, for whether third parties may come to the aid of the person attacked and whether the psychotic aggressor, in turn, has a right to defend himself against efforts to kill him. These issues have given rise to considerable debate over the last two decades, and much of it can be traced to the conundrum whether resisting a psychotic but purposeful aggressor should be treated as right in itself or, alternatively, wrong but free from blame.

Type
Articles
Information
Israel Law Review , Volume 27 , Issue 1-2 , Winter–Spring 1993 , pp. 227 - 246
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1993

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References

1 “Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory” (1973) 8 Is. L.R. 367.

2 For a sampling of the literature, see generally the essays in the two volume reader, Fletcher, George and Eser, Albin, Justification and Excuse (1987); Paul Robinson, Defenses to Crime (1984) Vol. 2, pp. 1–468Google Scholar; Smith, J. C., Justification and Excuse in the Criminal Law (1989)Google Scholar; Byrd, Barbara Sharon, “Wrongdoing and Attribution: Implications Beyond the Justification-Excuse Distinction” (1987) 33 Wayne L. R. 1289Google Scholar; Greenawalt, Kent, “The Perplexing Borders of Justification and Excuse” (1984) 84 Colum. L. R. 1897CrossRefGoogle Scholar; Gur-Arye, Miriam, “Should the Criminal Distinguish Between Necessity as a Justification and Necessity as an Excuse?” (1986) 102 L. Q. R. 71Google Scholar; Kremnitzer, Mordechai, “Proportionality and the Psychotic Aggressor Another View” (1983) 18 Is. L. R. 178Google Scholar; Robinson, Paul, “Criminal Law Defenses: A Systematic Analysis” (1982) 82 Colum. L. R. 199CrossRefGoogle Scholar; Williams, Glanville, “The Theory of Excuses” [1982] Crim. L. R. 732Google Scholar; Eser, Albin, “Justification and Excuse” (1976) 24 Am. J. Comp. L. 621.CrossRefGoogle Scholar

3 “Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases” (1968) 77 Yale L. J. 880.

4 The other catergories are object of the offense, eubjective side and objective side of the act.

5 Fletcher, supra n. 1, at 375.

6 Kant, Immanuel, The Doctrine of Right 235Google Scholar, in The Metaphysics of Morals (Gregor, Mary trans., 1991) 60.Google Scholar

7 For some of literature on this problem, see Arenella, Peter, “Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability” (1992) 39 UCLA L. R. 1511Google Scholar; Lacey, Nicola, State Punishment, Political Principles, and Community Values (1988).Google Scholar

8 See Dan-Cohen, Meir, “Boundaries of the Self” (1992) 105 Harv. L. R. 959CrossRefGoogle Scholar; Moore, Michael S., “Causation and the Excuses” (1985) 73 Cal. L. R. 1091.CrossRefGoogle Scholar

9 Immanuel Kant, supra n. 6, at 60 [235]: “For the issue here [referring to the case of the shipwrecked sailor] is not that of a wrongful assailant upon my life whom I forstall by depriving him of his life….”

10 14 Q.B.D. 273 (1884).

11 A third sailor, Brooks, participated in the cannabiliem, but was not indicted for murder. Apparently he did not aid or abet the killing. See Simpson, , Cannabiliem and the Common Law (1984).Google Scholar

12 Immanuel Kant, supra n. 6, at 60 [235].

13 Kent Greenawalt, supra n. 1, at 1903.

14 Admittedly, not all defenses represent “warranted” action. Presumably, the psychotic aggressor has neither a “warrant” nor a “reason” for his act.

15 Nussbaum, Martha, The Fragility of Goodness (1986) 63–79.Google Scholar

16 This point is captured in the apt title by Tribe, Laurence, Abortion: Ttie Clash of Absolutes (1990).Google Scholar

17 See generally Fletcher, George, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial (1988).Google Scholar

18 Aristotle, , Nichomacfiean Ethics 1135a–1136a.Google Scholar

19 Kent Greenawalt, supra n. 1.

20 Ibid., at 1908.

21 Ibid., at 1908–09.

22 People v. Young, 11 N.Y.2d 274, 183 N.E.2d 319, 229 N.Y.S.2d 1 (1962).

23 Greenawalt, supra n. 1, at 1919.

24 Ibid., at 1904.

25 Ibid., at 1909.

26 Ibid.

27 Ibid., at 1910.

28 Ibid.

29 Ibid., at 1911.