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New Criminal Law Review


When someone performs a criminal act, there is a rebuttable presumption that she is particularly blameworthy and liable to a particularly severe punishment for the act. The presumption is rebutted when the criminal actor has an exculpatory defense. Such defenses mitigate how much a criminal actor is blameworthy and liable to be punished for her act. In this paper, I begin by spelling out a taxonomy of the main types of exculpatory defenses. Then I argue that a restorative signaling theory of punitive desert best explains why such defenses have their mitigating effects. According to the theory, how much someone is blameworthy and deserves to be punished for performing a criminal act corresponds to the severity of the burdens she is obligated to undertake to restore the conditions of trust she undermined by performing the act. The theory explains the mitigating effects of exculpatory defenses by explaining why they mitigate the severity of burdens that a criminal actor must undertake to fulfill the obligation of restoration she incurs from performing her act.

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