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Revolt against proportionality in self-defence
A paper by Prof. Renee Lerner, of George Washington Univ. law school.
Its theme: self-defense is an area where the views of the legal elite and the rest of the population collide. In the eyes of the legal elite (and thus the law), the lives of the aggressor and of the defender have equal or almost equal value. Thus the defender can only use lethal force if he reasonably fears that the aggressor is about to use the same force; the tie goes to the runner, or the defender, but otherwise they are equal.
To the rest of the world's population, tho, they are not at all of equal value. The life of a burglar and of a good citizen homeowner are not at all of equal value, nor are those of a person minding their own business and someone who attacks and tries to do them harm. Years ago, a local prosecutor told me that he'd told his boss they might as well give up prosecuting homeowners who shot fleeing burglars in the back. It was illegal, but they'd had three cases of that type and lost three jury verdicts in a row, and if juries will not convict, then it is legal in the real world, regardless of what the statutes say.
Her paper has an interesting point; many European codes are actually more liberal toward the defender than is American law. And some have provisions that, if the court finds the defendant hasn't proven self-defense, but they acted under a state of mind that was motivated by the fear or anger caused by the attacker, then the charge is reduced. They shouldn't have done it, but still the aggressor bears a good part of the blame.
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The whole question seems based in the supposed "equality" of rights. It is as if the the aggressor had as much right to to the deed as the defender has to oppose it.
I was reminded of this anecdote:
"When I was in law school, an elderly professor told a story about a Texas Judge from long ago who was chided about the fact that in Texas the penalty for second degree murder was a shorter prison sentence than horse stealing. The judge’s response professor Rhodes told me was 'We got some folks down here that need killin’, we don't have any horses that need stealing'.”
from a blog by Kent Mitchell
Mr. Hardy,
I have only thusfar read the Introduction and its footnotes.
Thank you for sharing this paper.
Of course, much has likely changed in 14 years and I am wondering if you have already come across other related and more current papers ?
Finally, as you imply in the second paragraph above, jury nullification is an element of the discussion of self defense laws. While Prof. Lerner's Introduction does not (that I noted) touch on such, are you aware of others who have explored the interaction among those two facets of prosecutions of those claiming "self-defense" ?
Lerner also wrote an article comparing substantial and procedural rights, it appeared and was criticized on Volokh Conspiracy just over a month ago.
Useful lens. Not comprehensive, but useful.
That "presumption" and "proportionality" go into fantasies about what a perpetrator might or might not have done if the victim hadn't resisted. He was just taking "property", while ignoring the number of witnesses who get dead, or the overpowered victims who get raped or kidnapped.
I have no obligation to assume goodness in an individual who is showing that he is a "bad" law breaker. I do not have to depend on the "mercy" of an individual who is showing no mercy in an attack. I would be a fool to do so.
"Unarmed" means I will get beaten to death by an individual with greater strength or who finds something he can use as a weapon against me.