Kendall Hamilton *

“Truly humane societies are those . . . that have decided to begin the long march down the road toward the abolition of violence . . . . [and] every once in a while, stop along the way to take stock, and then decide to continue.”[1]

Our criminal justice system rests upon the fundamental notion that a defendant’s punishment will match her level of culpability.[2] In other words, the defendant should be a “fair candidate for punishment.”[3] Accordingly, when punishment outweighs culpability, effectively over-punishing a defendant, the legitimacy of our criminal justice system erodes because the system in which we have bestowed our trust has not produced a fair candidate for punishment. The intersection between Virginia’s self-defense laws and the realities surrounding domestic violence demonstrate this over-punishment problem.

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*   J.D., 2014, University of Richmond School of Law; B.A., 2007, Johns Hopkins University. Thank you to my family for their support before, during, and after law school. Their continued guidance and encouragement is truly invaluable. Special thanks to Professor Tate for helping develop this comment in the early stages, and to Jonathan Tan and Samantha Fant for encouraging me to take the final steps towards its completion. Lastly, thank you to Tara Badawy and the University of Richmond Law Review’s editors and staff for their hard work throughout this process.

[1].    Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 15 (1989) [hereinafter Walker, Terrifying Love].

[2].    See Kyron Huigens, On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 445 (2005) (“Notice that we refer to the absence of culpability in cases in which a person is not a fair candidate for punishment . . . . In contrast, in cases in which fault is at issue, we talk not only about the absence of culpability, but also—on the positive side, so to speak—about the varying degrees of culpability.”).

[3].    Id.; see also Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy, 105 Colum. L. Rev. 1233, 1241 (2005) (“Herbert Wechsler, Paul Tappan, and Louis Schwartz, . . . developed the Model Penal Code . . . [and] understood the Kantian argument that respect for offenders’ moral autonomy requires that they be punished in proportion to the seriousness of their crimes.”). This comment recognizes that legal scholars disagree as to the exact theory of punishment to be utilized, but despite such disagreement, most are still interested in incorporating a theory of punishment that is fair; namely, a punishment that is “politically legitimate, morally just, or otherwise institutionally necessary.” Marc O. DeGirolami, Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen, 9 Ohio St. J. Crim. L. 699, 706 (2012).