Situating guilt: social injustice as a partial excuse

Abstract

The pursuit of social justice in penal matters has regained momentum in Anglo-American criminal law debates. Among the various areas of discussion, a contentious issue is whether the social hardships that contribute to much criminal offending should be considered in the adjudication of criminal responsibility. Against this backdrop, this paper defends the position that chronic – ie long-lasting and ongoing – situations of social adversity can, in principle, warrant consideration in determinations of guilt. It therefore advances a proposal for a situational partial excuse (SPE) applicable to cases where criminal conduct is precipitated by conditions of chronic social adversity that unfairly diminish a person’s opportunity to do otherwise. Importantly, the proposed excuse also accounts for the compounding role of both state and societal neglect in diminishing an individual’s opportunities and resources to avoid wrongdoing. To this end, the paper integrates normative analysis with modern empirical insights into the relationship between adverse social contexts and crime, including through mechanisms of traumatic stress. It then elaborates the theoretical and doctrinal foundations of the SPE, articulates its statutory and evidentiary requirements, and discusses its coherence with core sentencing considerations.