Defending Yourself from Blame

J.L. Austin famously argued that when you are accused of acting in a way that is wrong, bad, or even just inept, there are two avenues of defense. You may accept full responsibility for the action, but deny that it was wrong, bad, or inept. This is the justification defense. You accept that you performed the action, but you attempt to justify the action by attempting to demonstrate that it was, in fact, the right thing to do. The second route is to agree that the action was wrong, bad, or inept, but to deny that you were responsible—either fully or partially—for the action. This is the excuse defense. You attempt to excuse the action by attempting to reduce or eliminate your responsibility for the action.1

In the criminal law, almost every crime may be said to have two elements: the first is the forbidden behavior, known as the actus reus (“guilty act”) which can involve failing to do something as well as doing something. The second element is the state of mind of the individual engaging in the behavior, which includes both the knowledge of what one is doing and the choice of doing it; these are known collectively as the mens rea (“guilty mind”). The forbidden behavior must be voluntary in the basic sense that one is in control of one’s behavior; one is not, for example, hypnotized, sleepwalking, or drugged.2 The required state of mind can vary in degree. It can be intentional, as the crime of murder (killing “with malice aforethought”), such as when Todd Alquist shoots Andrea Cantillo on her front porch within view of Jesse Pinkman (“Granite State”). It can be merely knowing, as in the crime of voluntary manslaughter—for example, killing someone when provoked, such as when Spooge’s wife tips the stolen ATM on his head because he is verbally abusing her (“Peekaboo”). It can be merely reckless, as in the crime of (so-called) “involuntary manslaughter,” such as running a red light and killing someone crossing the street as a result; something like this could have happened when Walt was running red lights while driving his car out to the Tohajiillee Indian Reservation to save his money from being torched by Jesse (“To’hajiilee”). Or it can be merely negligent, as in the crime of criminally negligent manslaughter, as seems possible in the case of the negligent error made by flight traffic controller Donald Margolis—a result of his depressed state—that led to Wayfarer 515 colliding mid-air with JM 21 over Albuquerque, killing 167 passengers3 (“ABQ”). In each case, however, it must be true that the person knew, or should have known, what was happening, and that the person chose, or failed to choose, to act.

Defenses by justification and excuse accept that the person committed the “guilty act” and that the person had the requisite “guilty mind.” Nevertheless, they insist that the person is not to be found guilty of criminal or moral wrongdoing. The justification defense says that there is nothing wrong with the

“guilty act,” and that it should not be condemned. The excuse route says that even though there is something wrong with the “guilty act,” and even though the person had a “guilty mind,” nevertheless, the person should not be condemned.

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