Culpability in Creating the Choice of Evils

Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created culpability" is circumstantial data that bears crucially on the criminal law's retributivist function—that wrongful conduct deserves punishment, not praise—and its inverse relationship to justification. Failing to account for criminal created culpability renders the concept of justification itself defective because it ignores precisely what is at the heart of any plausible theory of justification: that under certain circumstances an otherwise criminal act is not wrongful and should not be punished. This Article explains the relationship between criminal created culpability and justification, and suggests a rebuttable presumption procedure to ensure that the retributivist concerns animating created culpability are incorporated and weighed appropriately in assessing whether conduct is justified.