Principles of Justification

Cydney Chilimidos & Zachary Nemirovsky—An Overview of Justification   

     Of the various defenses presented in the Robinson excerpt, justification is unique in that it applies when, despite all of the elements of an offense being met and being proved, the criminal justice system goes farther than merely forgoing punishment. If conduct is justified, it is not considered wrongful, and perhaps even desirable. This is because the law considers a defendant’s justified actions to be at least a, or the, desirable outcome.

     For example, if X breaks into Y’s house, eats all the food in the fridge, and stays the night, that is both criminal trespass and burglary. Breaking into a house and stealing the owner’s food is ordinarily bad conduct. But what if X was trying to escape a blizzard and had not eaten in three days? Justification makes their actions affirmatively the right outcome. What exactly makes this conduct (or any otherwise wrongful conduct) justified? Why is it that a defendant who kills to protect their child from a lethal attack is justified, but a defendant who kills to protect their pet is not justified? Or is there even a difference?

     There is, unfortunately, no single theory that tells us why some actions are justifiable, while others are not, but the following four theories are often discussed when analyzing various principles of justification: “public benefit”, “moral forfeiture”, “moral rights”, and “superior interest / lesser harm.”

Public Benefit Theory:

     At common law, one of the premier theories of justification was one of public benefit, see Eugene R. Milhizer, Justification and Excuse: What They were, What They Are, and What They Ought to Be at 841, which justified actions so long as they were taken: (1) for the public good and (2) by  public officials (such as police officers or prison wardens) or private parties acting in such roles.

     So, for example, a police officer who arrests and handcuffs a suspect is justified under the public benefit for what would otherwise be criminal assault. Paul H. Robinson, John M. Darley, Testing Competing Theories Justification at 1096-97. The executioner who kills also commits no crime under the public benefit theory, because of the lawful command to do so. In the private sphere, this theory usually only grants justification to private citizens if they are protecting the public from “forcible, atrocious felonies.”1

     One advantage of this theory is that it limits self-defense (and as such, justified killings) by private individuals to truly justified circumstances - preventing atrocious felonies. However, public benefit theory has also been criticized for its near blanket sanction of public acts committed by public officials, and alternatively for its limited conception of private self-defense. Milhizer, supra, at 841. For example, because a felony would have to be forcible and atrocious, strict public benefit does not allow for even non-lethal use of force in the defense of property. Id. at 841-42. 

Moral Forfeiture Theory:

     The moral forfeiture theory “is based on the view that people possess certain moral rights or interests that society recognizes through its criminal laws, e.g., the right to life…. but which may be forfeited by the holder of the right” through their misconduct.2 For example, suppose that X repeatedly shoplifts from a store. The owner may ban X from the premises, and morally justify themselves by saying that X has lost the right to enter the store. In the realm of self-defense, moral forfeiture theory says that a lethal aggressor has lost their right to life, and the defendant may use lethal force to defend themselves. One immediate draw of this theory is that it clearly comports with the reality that by committing certain acts, people may forfeit certain rights.3

     While there are many rights one has and could forfeit, in self-defense cases we are concerned with the right to life. The question of what types of misconduct cause someone to forfeit their right to life is an imprecise and open one. For example, does a burglar who breaks into a home forfeit their right to life? What about a robber who holds up a store at gunpoint? Or a perpetrator who violently assaults someone? It’s possible to think that one never forfeits their right to life (for example, 22 states no longer use the death penalty for any crimes), but some candidates might be murder or other felonies deemed forcible and/or atrocious. This also points, however, to perhaps the largest drawback of the theory (at least in the self-defense context). The right to life, unlike any other right felons may forfeit, cannot be restored once taken away and can be unalienable.

Moral Rights Theory:

     The moral rights theory justifies otherwise wrongful conduct because the actor has a right to protect their own interests - most often, their life or bodily integrity. This theory very easily fits the example of the “burglar-by-necessity”, discussed earlier, who broke into a home during a blizzard to save their own life. This theory is in some ways the counterpart to moral forfeiture.4

     In the context of self-defense, this theory justifies a person who kills a lethal and threatening aggressor because they are protecting their own right to life.  The actor may also be justified in killing to thwart their own kidnapping, as they are asserting their right to autonomy. In states with “Stand Your Ground” laws, this theory is on full display, allowing someone to kill to defend themselves without any requirement of retreat. Crucially, it is not that the aggressor’s death is morally irrelevant (as in the moral forfeiture theory), but that the actor acts to protect their own right.5

     One draw of this theory is that it is very intuitive. The concept that each of us has certain moral rights, which we are morally entitled to defend, is an easy concept to support. It’s also hard to deny, at least in the case of a right to life. But this theory also doesn’t devalue the right to life of the aggressor (as moral forfeiture or even public benefit, to an extent, do). Application of this theory must be cautious, however, because in an unlimited form it abandons any pretense of proportionality. For example, without any proportionality, if my right to property is sacred, then I am allowed to kill a pickpocket or a trespasser to defend it. Milhizer, supra, at 843-44. Proportionality is essential to this theory.

Superior Interest (Lesser Harm) Theory:

     Lesser harm theory acknowledges that the death of the decedent is a harm, but justifies conduct so long as it was the lesser harm of the possible outcomes. “Pursuant to this principle, the interests of the parties, and, more broadly, the values that they seek to enforce, are balanced.”6

     Under this theory, for example, one cannot kill a trespasser in their home because the harm of trespass is less than the harm of death. An aggressor can be killed only if their death is the lesser harm (or at least an equally lesser harm) of the possible outcomes, such as to avoid the death of the actor. As such, this theory is the most utilitarian in nature.

     Lesser harm theory provides a very high bar for when the death of an aggressor is justified, consistent with the view that human life is of the utmost value. The drawback here is if that is the case, then one is always required to endure horrific abuse (so long as it is not lethal) if killing the aggressor is the only option.7

The Theories Applied:

     Consider the following hypothetical: A police officer is investigating a string of nonviolent burglaries when she spots the perpetrator fleeing the scene of the crime. She gives chase, but the burglar is fast, and she begins to lose him. The officer knows that if he gets away, the burglar will strike again and again. She shoots and kills him. Which of the four theories of justification justifies the officer’s actions?

     The officer was not protecting any of her own rights, so “moral rights” theory does not help her. The burglar has never used violence, and most people (certainly, all states) would agree these were non-capital offenses; the burglar did not, then, forfeit his right to life. Also, because of the paramount value of human life, the “lesser harm” theory would dictate that he be allowed to escape. But the officer is a public official, acting for the public benefit, and so “public benefit” theory may justify her actions.

     What about the following alternatives: (1) the officer was actually a vigilante homeowner, defending her property from the burglar; (2) the burglar’s prior burglaries were aggravated, using force, and even once resulted in the death of an innocent; or (3) the burglar had their own gun, and turned around to shoot the pursuing officer. Do additional theories of justification help in any of these cases?