This article examines popular dissatisfaction with the proportionality standard in self-defense law, which holds that the prevention of harm cannot be achieved by causing harm that is disproportionate. Legal elites, such as prosecutors, judges, and legal scholars, have long championed versions of this standard. But there is an increasingly widespread movement in the United States and Europe to modify elite notions of proportionality.
Common to these movements is the desire to replace complicated balancing tests with clearer rules, which would limit the discretion of prosecutors and judges, and to permit use of deadly force against attackers in more situations. Fueling the movements is the belief that government is not able or willing to adequately protect its citizens. While these reform movements are occurring in many countries, the article focuses on three places in particular: Florida, Britain, and Belgium. For each place, the author discusses events that led to dissatisfaction with existing rules, political debates surrounding reform, and detailed legislative action. Efforts in Florida and Britain show an approach to reform that centers on presumptions that deadly force may be used in certain situations, such as a forcible entry into a home. Efforts in Belgium show another approach, which is in effect an expansion of provocation doctrine: anyone who exceeds the bounds of proportionality because of emotion (fear, anxiety, or panic) caused by attack or threat of attack is not criminally liable. The paper then analyzes the two types of efforts. The author concludes that emotions caused by attack are proper grounds for mitigation, but not for complete exoneration. Reforms that emphasize presumptions may be justified, particularly presumptions about the use of force against those who forcibly intrude into the home.
GW Paper Series
GWU Law School Public Law Research Paper No. 243; GWU Legal Studies Research Paper No. 243
Renee Lettow Lerner, The Worldwide Popular Revolt Against Proportionality in Self-Defense Law, 2 J.L. Econ. & Pol'y 331 (2006).