Why Indigence Is Not a Justification
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Description
In this essay, I attempt to explain why arguments in favor of accepting indigence as a defense in criminal matters are unlikely to be successful. Although there is an apparent symmetry between exculpation based on indigence and exculpation based on self-defense, there are in fact important differences between the two modes of exculpation. The differences have to do with the moral light that the respective defenses cast (or—in the case of indigence—the moral light that they would cast, if accepted) on the rule the defense calls into question. I argue that in the case of traditional self-defense, exculpation calls in question nothing more than the application of the rule against homicide in a particular instance: a (justificatory) appeal to self-defense is a way of showing that that prohibition is overly inclusive, so far as the particular case is concerned. By contrast, if indigence were accepted as a justification, it would tend to call into question not just the application but the general legitimacy of the rule that was broken (usually a rule of property). One cannot say simply: "This is a fine system of property, but it is overly inclusive so far as this person's indigence is concerned." Overinclusiveness goes to the heart of the justification of property rights (in a way that it does not go to the heart of the justification of the rule against homicide). By that I mean the following: in the case of property, Overinclusiveness goes directly to the issue of social or distributive justice. To say that a particular taking of property (something which would otherwise be a theft, conversion, or trespass) is justified by the taker's indigence is to call into question the justice of the property scheme in general. For this reason, legislators are understandably reluctant to posit this explicitly, and courts are loath to recognize it, as a defense to violations of rules about property to which they are in all other regards committed. Now this may not be true of all indigence-based arguments. In particular, it is unlikely to be true of indigence as an excuse; and it may not be true of incidents of occasional or accidental deprivation—the otherwise prosperous hiker suddenly stranded without food, and so forth. But it does tend to be true of many instances in which a defense of (more or less permanent) indigence would be most directly compelling. I am not making a hard-and-fast argument against recognizing indigence as a defense. Nor am I suggesting that this difference morally justifies the asymmetry between indigence and self-defense. I do believe, however, that it offers a good explanation—in terms of the logic of the law—of the tendency to diminish the importance of indigence as a defense (often to a vanishing point). The law—I argue—is not about to recognize a class of defense whose general tendency, in the cases in which it would be most directly applicable, would be to call into question the legitimacy of the general legal rules of property in a society.
Source Publication
From Social Justice to Criminal Justice: Poverty and the Administration of Criminal Law
Source Editors/Authors
William C. Heffernan, John Kleinig
Publication Date
2000
Recommended Citation
Waldron, Jeremy, "Why Indigence Is Not a Justification" (2000). Faculty Chapters. 1631.
https://gretchen.law.nyu.edu/fac-chapt/1631
