I regret that my analytical frame above bounces back and forth between law, justice and the facts of the case. It’s a bit muddled. What I am trying to get at is that the current contours of law are too permissive for deadly force, and also that the law of self-defense is too binary to capture the subtleties and varieties of human actions…
I regret that my analytical frame above bounces back and forth between law, justice and the facts of the case. It’s a bit muddled. What I am trying to get at is that the current contours of law are too permissive for deadly force, and also that the law of self-defense is too binary to capture the subtleties and varieties of human actions and the attendant moral culpability.
I think Rittenhouse’s moral culpability falls somewhere between first degree intentional homicide and reckless endangerment. I don’t know the facts well enough—neither do any of us, since media coverage and even law enforcement investigations rarely capture the true scope of the human incidents—so I can’t say where it falls in that range. But I feel confident he is not free of moral culpability.
But the permissive law for the use of deadly force, and the tragically binary outcome of it’s application in those facts, is likely to end with a dissonance between his moral and criminal culpability. He is not innocent, and should not be acquitted of those deaths. But if he was genuinely afraid for his life in that moment, he may not be morally guilty of murder either. And so the jury should have the opportunity to mitigate, rather than exonerate, based on the facts as they come out at trial.
*Correction: juries don’t “exonerate,” they acquit.
I am, of course, eliding the existence of “imperfect self defense” as a legal defense in some cases. Imperfect self-defense arises where a person believed they needed to use deadly force, but their belief was unreasonable or wrong. It typically arises in an intentional killing, where the defendant thought the victim was armed, but the victim was not.
I don’t recall whether Wisconsin has this defense, but typically it mitigates a some murders to manslaughter. Each State will have their own variants.
But the impairment on Rittenhouse’s moral self-defense claim in this case is not that he was wrong about the threat (though it appears he may have been). His moral self-defense claim is impaired by the fact that without a good justification he chose to provoke violence, and then when it was provoked he claims it as a justification to use deadly force.
So the extant “imperfect self-defense” claim is not a proper vehicle to allocate criminal culpability commensurate with his moral culpability based on any judgment that he provoked the violence by his presence. Something else is needed.
I regret that my analytical frame above bounces back and forth between law, justice and the facts of the case. It’s a bit muddled. What I am trying to get at is that the current contours of law are too permissive for deadly force, and also that the law of self-defense is too binary to capture the subtleties and varieties of human actions and the attendant moral culpability.
I think Rittenhouse’s moral culpability falls somewhere between first degree intentional homicide and reckless endangerment. I don’t know the facts well enough—neither do any of us, since media coverage and even law enforcement investigations rarely capture the true scope of the human incidents—so I can’t say where it falls in that range. But I feel confident he is not free of moral culpability.
But the permissive law for the use of deadly force, and the tragically binary outcome of it’s application in those facts, is likely to end with a dissonance between his moral and criminal culpability. He is not innocent, and should not be acquitted of those deaths. But if he was genuinely afraid for his life in that moment, he may not be morally guilty of murder either. And so the jury should have the opportunity to mitigate, rather than exonerate, based on the facts as they come out at trial.
*Correction: juries don’t “exonerate,” they acquit.
I am, of course, eliding the existence of “imperfect self defense” as a legal defense in some cases. Imperfect self-defense arises where a person believed they needed to use deadly force, but their belief was unreasonable or wrong. It typically arises in an intentional killing, where the defendant thought the victim was armed, but the victim was not.
I don’t recall whether Wisconsin has this defense, but typically it mitigates a some murders to manslaughter. Each State will have their own variants.
But the impairment on Rittenhouse’s moral self-defense claim in this case is not that he was wrong about the threat (though it appears he may have been). His moral self-defense claim is impaired by the fact that without a good justification he chose to provoke violence, and then when it was provoked he claims it as a justification to use deadly force.
So the extant “imperfect self-defense” claim is not a proper vehicle to allocate criminal culpability commensurate with his moral culpability based on any judgment that he provoked the violence by his presence. Something else is needed.
Thanks!
Thank you Dylan. Quite well done and very likely more thoughtfully presented than anything the jury will hear.