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114 J. Crim. L. & Criminology 1 (2024)

handle is hein.journals/jclc114 and id is 1 raw text is: 0091-4169/24/11401-0001 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 114, No. 1 Copyright © 2024 by Paul H. Robinson, Jeffrey Seaman, and Muhammad Sarahne Printed in U.SA. RETHINKING THE BALANCE OF INTERESTS IN NON-EXCULPATORY DEFENSES PAUL H. ROBINSON,* JEFFREY SEAMAN,** AND MUHAMMAD SARAHNE*** Most criminal law defenses serve the criminal law 's goal of shielding blameless defendants from liability. Justification defenses, such as self- defense and law enforcement authority, exculpate on the ground that the defendant's conduct, on balance, does not violate a societal norm. Excuse defenses, such as insanity and duress, exculpate on the ground that, while the defendant may well have violated a societal norm, it was done blamelessly. That is, it is the excusing conditions, not the defendant, that is to blame. In contrast, a third group of general defenses, which have been called non-exculpatory defenses, bar liability in instances where the defendant may have clearly violated a societal norm with full blameworthiness yet nonetheless is exempt from criminal liability because giving the exemption advances some societal interest independent of and in conflict with the criminal law 's goal of imposing deserved punishment in proportion to an offender's blameworthiness. Non-exculpatory defenses openly sacrifice doing justice in order to promote the competing non-justice interest. A wide variety of non-exculpatory defenses are commonly recognized, including, for example, statutes of limitation, executive and legislative * Colin S. Diver Professor of Law, University of Pennsylvania. The authors gratefully acknowledge the research assistance of Sarah McAlpine Robinson, Erin Kelly, Catherine Lewis, Dushaun Thompson, Melissa Nong, and Yosef Weitzman. ** Bachelor of Arts in Philosophy, Politics, and Economics, 2022, and Master of Science in Behavioral and Decision Sciences, 2023, University of Pennsylvania. JD candidate, University of Pennsylvania Carey Law School Class of 2027. *** S.J.D., 2020, and LL.M., 2017, University of Pennsylvania; LL.B. in Law and B.A. in Psychology, Hebrew University of Jerusalem, 2011. Sarahne is currently an attorney in the Criminal Department of the State Attorney's Office in Israel, representing the state in criminal matters before the Israeli Supreme Court. 1

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