Objectifying and Identifying in the Theory of Excuse

By Anders Kaye*

Volume 39.2

*Associate Professor, Thomas Jefferson School of Law.


As fundamentally social creatures, healthy and normal human persons have a deep and well-developed capacity for identification with other persons.  We are susceptible to such identification when we see others as similar to ourselves, and especially when we have extensive, particularized knowledge about such other persons.  In this Article, I argue that identification plays an important role in our excusing practices.

To date, the leading naturalist and psychological accounts of excuse have made no room for identification.  Instead, they follow an influential naturalist account (“the objectification account”) in which all our excuses are explained by reference to either our “reactive attitudes” or the “objective attitude.”  In this Article, I offer an alternative naturalist account of excuse that makes room for identification; I describe identification and parse it into component judgments and attitudes; I show how these component parts are conducive to excusing and how they drive some of our most important excuses; and I explain how identification can help us understand a long-standing mystery in excuse law (tout comprendre, c’est tout pardonner).  Finally, I suggest that identification helps us understand why certain long-standing controversies in excuse theory persist, including debates about rotten background excuses and about the significance of causation and determinism for excuse.

Having laid out the identification account, this Article also shows that identification has important ramifications for excuse theory.  First, where the conventional objectification account makes excusing a disreputable practice, the identification account shows that excusing is connected to our social and imaginative capacities, and thus to some of the best parts of our psychology.  Taking identification into account, then, should make us more receptive to innovation in and expansion of the criminal law excuses.  Second, where the objectification account resists excuses rooted in formative character influences, the identification account is open to such excuses.  And, third, where the objectification account denies the possibility of causal excuses, the identification account offers reasons to think such excuses are plausible.  These are deep and important differences between the two accounts, differences that do not emerge clearly until we have a systematic account of identification in mind.

In the end, the identification account gives us a naturalist account of the excuses with which we can identify.  Where the objectification account yokes excuse to a weird and detached psychological outlier (the objective attitude), the identification account connects excuse to a central and valued feature of our social psychology.  In this way, it gives us a picture of the excuses that feels natural, intuitive, and connected to what we value most in ourselves, and it helps us understand why we persist in the practice of excusing.

Qualified Support: Death Qualification, Equal Protection, and Race

By Alec T. Swafford*

Volume 39.1

* J.D. Candidate, The University of Texas School of Law, 2012; B.A., 2009, Rice University.  Law Clerk to the Honorable Phyllis Kravitch, United States Court of Appeals for the Eleventh Circuit, 2012–2013 term.  The author would like to thank Professor Cary Franklin for her advice, guidance, and critiques.  Also, the author would like to thank Clinical Professors Rob Owen, Maurie Levin, and Jim Marcus for being constant sources of inspiration in their representation of inmates on Texas’s death row.


The trial of Mumia Abu-Jamal, an African-American, for murder demonstrates how pernicious death qualification can be for minority prospective jurors.  In Philadelphia, which at that time had a population that was forty-four percent African-American, the prosecutor was successful in striking twenty African-Americans from the venire using death qualification. The prosecutor then used his peremptory challenges to strike another eleven African-American prospective jurors who had not expressed any opposition to the death penalty, resulting in a jury that did not have any African-American members. Prosecutors in general have been known to utilize the death qualification process to produce a jury they believe is more favorable to the state.

Death qualification has been described as an ethnic cleansing of the jury pool in capital cases due to its disproportionate effect on minority populations. Jurors must be “death qualified” in order to sit on a capital jury. During death qualification, prospective jurors are questioned concerning their attitudes on the death penalty. Prospective jurors may not be challenged for cause based on their views on capital punishment unless those views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oath.

Death qualification has a significant racial dimension.  Much of the academic literature and litigation concerning death qualification has focused on its tendency to create juries that are more “guilt prone.” The racial effects of death qualification are just as dangerous.  I will argue that death qualification should be ruled unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.  I will also argue that the Equal Protection Clause, as interpreted in Batson v. Kentucky, could be applied to racially discriminatory applications of death qualification in particular trials.

In Part II, I will show how current Supreme Court jurisprudence on death qualification has created a system that accords too much discretion to the actors at the trial level, allowing room for racial discrimination to flourish.  In Part III, I will explore the historical and sociological evidence behind the public support of capital punishment and the opposition to it.  Support for capital punishment, which is directly related to the likelihood that a juror will be struck for cause under death qualification, continues to be heavily influenced by general racial attitudes and by past and present racism in the implementation of capital punishment.  I will then explore the damaging effects death qualification has on the criminal justice system in Part IV.  In Part V, I will discuss the most important challenge to death qualification to date, Lockhart v. McCree. Finally, in Part VI, I will apply Equal Protection analysis to death qualification.

Providing Immigration Advice During Criminal Proceedings: Preempting Ineffective Assistance of Counsel Claims When Non-Citizen Aliens Seek to Withdraw Guilty Pleas to Avoid Adverse Immigration Consequences

By Maryellen Meymarian*

Volume 39.1

*J.D., C.P.P., Adjunct Professor, George Mason University; former Associate Legal Advisor and Assistant Chief Counsel for the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and former Assistant District Attorney for the New York County District Attorney’s Office.


Criminal aliens have long been deported from the United States.  In the past decade, U.S. Immigration and Customs Enforcement (ICE) has stepped up efforts to identify, detain, and remove criminal aliens incarcerated across all jurisdictions. The possible immigration consequences of criminal actions are now at the forefront of many criminal pleas.  The Supreme Court’s recent decision in Padilla v. Kentucky now mandates that defense counsel inform non-citizen alien clients whether a possible criminal plea carries a risk of deportation.  The complexities of the Immigration and Nationality Act (INA) only add to the difficulties faced by defense attorneys when providing advice to non-citizen aliens concerning pleading to criminal dispositions.  Failure to provide competent and accurate advice concerning potential deportation consequences now clearly constitutes a Sixth Amendment violation.  This Article examines how an alien’s residence status may be altered by a criminal plea; how all parties in the criminal justice system need to understand the potential immigration consequences of a given plea; and steps that should be taken to preempt future attempts to withdraw convictions based on a failure to inform an alien of potential immigration consequences.