The Model Penal Code revolutionized mens rea by reducing mental-state terminology to four concepts: purpose, knowledge, recklessness, and negligence. As defined by the Model Penal Code, purpose requires that the forbidden result be one's conscious object or that one is aware – or hopes or believes – that a forbidden circumstance (e.g., that the property one is receiving is stolen) exists. Knowledge with respect to results (e.g., death, injury, destruction) requires that one be practically certain that one's conduct will bring about such results. Knowledge with respect to circumstances requires that one be aware that such circumstances exist. Recklessness entails the conscious disregard of a substantial and unjustifiable risk that a forbidden result may occur or that relevant circumstances exist. Negligence requires that one is unreasonably unaware of a substantial and unjustifiable risk that the forbidden result may occur or that the relevant circumstances exist. This hierarchy presupposes that purpose is more culpable than knowledge, knowledge is more culpable than recklessness, and recklessness is more culpable than negligence.
Although we believe that the Model Penal Code brought much greater clarity than the myriad concepts employed by the common law, we still believe that more progress can be made. In this chapter, we reconceptualize culpability. We begin with an analysis of recklessness and argue that the substantiality prong is not independent of the justifiability prong. We also argue that recklessness must be understood subjectively, not objectively.
As we have established, primarily in Chapter 2 and by exclusion of inadvertent negligence in Chapter 3, an actor's culpability is the product of the risk(s) to others' protected interest(s) that he believes he has unleashed by a temporally fixed act of his will and the reason(s) he had for so willing. We believe that the criminal law should intervene at the point at which the imbalance of risks and reasons represents a gross deviation from the standard of care that a law-abiding citizen would observe in the actor's situation.
This formulation – encompassing both a comparison of risks to reasons and a comparison of the actor to the law-abiding person – contains within it much of the current doctrines of justification and excuse. That is, whenever the actor's reasons are sufficient to justify the risk, the actor is justified. Even if the actor's actions were not justified, if she has lived up to all that we can fairly expect of her, then she is excused. Despite the fact that much of what currently constitute defenses are subsumed within our culpability calculation in Chapter 2, we offer our thoughts here on those special reasons that justify risks often thought to be “justifications,” and we offer our view on how excusing conditions should be construed.
We begin with agent-neutral justifications. First, we discuss the lesser-evils defense, the paradigmatic consequentialist justification. We also explore deontological side constraints on the consequentialist calculus.
Our entire book has been devoted to the implications of having criminal liability turn on the pivots of the risks the actor perceives and the reasons for which he chooses to impose those risks. In many respects, our analysis and prescriptions are clear departures from criminal law orthodoxy, both doctrinal and theoretical. Although we believe that our approach is perhaps not as radical as it might appear to be – after all, many critics are uncomfortable with making inadvertent negligence a basis for criminal liability; many (theorists, at least) are persuaded that results should not matter to criminal liability; recklessness, with its axes of risks and reasons, is already a fundamental component of criminal law; and inchoate criminal liability is a controversial and confusing domain – we concede that all our proposals taken together will be sufficiently dramatic that the burden of persuasion we carry is properly a heavy one. Nonetheless, we believe we have met it. At the very least, we believe we have presented and justified an internally coherent version of a criminal law based on meting out retributive justice.
Having argued that results are neither necessary nor sufficient for blameworthiness or punishability, we must still answer the question of what type of action is necessary for the actor to be said to have acted culpably. Although this problem is traditionally addressed within the doctrinal rubric of the actus reus for incomplete attempts, the problem for us applies more generally. We must specify an actus reus formulation for all crimes.
There are various potential actus reus formulations, drawn along the continuum from the time the actor forms an intention to impose a risk of harm to the time when he believes he is unleashing that risk and it is no longer within his (complete) control. We contend that it is only at the time the actor engages in the act that unleashes a risk of harm that he believes he can no longer control (through exercise of reason and will alone) that he has performed a culpable action.
In this chapter, we begin by setting forth the principles that underlie our adoption of the “last act” formula. We then survey the various points along the inchoate crime continuum, from the formation of the intention to impose the risk, to the Model Penal Code's intention plus “substantial step,” to the common law's intention plus “dangerous proximity,” to the last act.
Unlike purpose and knowledge, negligence cannot be collapsed into recklessness. To be negligent, one does not advert to (in the sense of “be aware of”) the unreasonable risk that one is creating with respect either to the proscribed result or to the proscribed nature of one's conduct. It is adverting to such risks that converts one's negligent conduct into recklessness. True negligence is inadvertent creation of unreasonable risks. What distinguishes negligence from strict liability is that the negligent actor's unawareness of the risk is a failure to meet the objective “reasonable person” standard.
The Model Penal Code's definition of negligence is representative:
Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
Why Negligence Is Not Culpable
Essentially, those who deem negligence to be culpable argue that failure to advert to a risk that one had a fair chance to perceive (had one tried) is culpable, even though it does not entail a conscious choice to produce or to unreasonably risk harm.
At this point, we still need an account of what the unit of action is. Given that we deny that the results of an action increase the actor's blameworthiness, and that we believe instead that the sole locus of culpability is an act that unleashes an unjustifiable risk of harm over which the actor no longer has complete control, we should explicate exactly what “a culpable act” is. Because we view crimes as culpable risk creations, what is it exactly that creates that risk? And are failures to act, which cannot create risks themselves, also culpable?
Moreover, we need an account of how to individuate such culpable acts. Having reduced all criminality to risk creation, we need to explain when one risk creation stops and another begins. There are continuous courses of conduct that can be divided – or not – into multiple acts of risk imposition. Take a kidnapping, where the victim is moved over a period of time from A to B, which, as in Achilles and the tortoise, consists of a number of movements approaching infinity over lesser distances. There are also different acts that can occur within one course of conduct. For instance, in a rape case, what determines the number of rapes that have been committed when there are several different forced sexual acts? Then, there are single bodily movements that result in multiple harms. What of an arson during which the actor ignites a building with two people inside?
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