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actor’s purpose to take the computer, which he believed to be X’s. Or it could mean it was the actor’s purpose to take X’s computer (he would not have taken it were it abandoned by X and free for the taking). The latter purpose seems worse than the former. Combine this insight with the facts that (1) the risk the actor estimates of successfully accomplishing his purpose can vary from just > 0 to 100 percent, and (2) the actor’s ulterior purposes (the further purposes his purpose to harm serves) can vary in their positive or negative weight, and it seems almost beyond cavil that some cases of culpable purpose are less culpable than some cases of recklessness.30

III. A Unified Conception of Criminal Culpability

Criminal culpability is always a function of what the actor believes regarding the nature and consequences of his conduct (and the various probabilities thereof) and what the actor’s reasons are for acting as he does in light of those beliefs. Recklessness, minus its substantiality of risk requirement, perfectly expresses these two dimensions of culpability. In the last part of this chapter, we turn to more specific questions about this culpability calculation.

A. UNDERSTANDING INSUFFICIENT CONCERN

As defended in the preceding sections, we believe that, as a conceptual matter, purpose and knowledge are simply species of recklessness. Culpability, at bottom, is just about risks and reasons. Because of the novelty of our view, we wish to respond to some potential (and not so potential) objections.

30T he folding of purpose into recklessness also helps with certain “lit fuse” situations. Suppose, for example, D lights a fuse with the purpose of burning down V’s business. D is obviously reckless the instant he lights it, as there is some chance he will not be able to snuff it out even if he has a change of heart. He has imposed this risk – which increases as time passes – for no good reason, in this case a purpose to destroy. Now suppose D does have a change of heart in time to snuff out the fuse, but he has an epileptic seizure before he can do so, and V’s business burns down. Did D burn it down purposefully, because he lit the fuse with that purpose, or only recklessly, because he had a change of heart? Both answers have their temptations. On our theory, there is no need to decide.

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1. How Many Categories Do We Need?

The first concern is that our view “flattens” culpability.31 Rather than recognizing four distinct mental states, we reduce it all to one. How in the world can all the shades of culpability fit within one mental state? Our response – that we actually recognize finer gradations – seems to throw us into Charybdis, as other critics may worry about unfettered discretion in the hands of juries and prosecutors.32 These objections are quite different, but both certainly cannot be right.

The first question, we believe, should be the conceptual one. How many different mental states are there really? If purpose and knowledge require that we look to both risks and reasons, then they function in exactly the same way as does recklessness. Although acting with purpose or knowledge regarding forbidden conduct, results, or circumstances appears presumptively unjustified, nevertheless, as we argue earlier, justifications may be available in such cases.

Moreover, despite the fact that our view appears to reduce all culpability to one level, it does quite the opposite. We can recognize shades of gray that current legal formulations cannot. Our view explains why some instances of extreme indifference to human life are just as culpable as some purposeful and knowing killings. In addition, our view can accommodate the intuition that harming someone purposefully can be a very bad reason for acting. That is, we may think that a person is more culpable for trying to harm someone than she is if she merely foresees and tolerates it. On the other hand, there seem to be many other reasons that may be just as bad as aiming at the evil. If an actor blows up an airplane and kills the pilot, we might think him no more culpable for killing the pilot to marry the pilot’s wife (purpose) than for blowing up the plane for insurance money and killing the pilot as a side effect (knowledge). Identifying with and aiming at evil are extremely culpable, but so, too, is the indifference manifested in acting for weak reasons while risking atrocious harm.

As noted previously, our ability to accommodate these nuances comes at a price; it may afford greater discretion to courts and juries.

31Joshua Dressler, “Does One Size Fit All? Thoughts on Alexander’s Unified Conception of Criminal Culpability,” 88 Cal. L. Rev. 955 (2000).

32Alexander, supra note 3, at 953 n.62.

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This may be true, but we doubt this objection is all that forceful. In terms of legitimate error, there may be more errors under our scheme, but they will likely be smaller than when juries are forced to place the actor’s mental state into one of four (supposedly hierarchical) categories. Moreover, because all subjective mental states are notoriously difficult to prove, and all rely on inferences made by juries, we think there is little reason to believe that juries will misuse our unified conception in ways that they cannot already misuse current mental state categories.

Finally, we contend that the law should continue to require that 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.33 The criminal law should not be concerned with those actors who, although they impose risks that are not justified by their reasons, are only minimally culpable (because their reasons almost justify the risks they perceive). Moreover, by requiring a gross deviation, the risk of juror error is reduced.

2. Indifference Compared

Some criminal law theorists argue that we should add indifference as a distinct type of culpable mental state.34 To us, such proposals turn on what one means by “indifference.”35 Consider the following example. Danielle decides to play Russian roulette with Andrew. Danielle does not particularly care for Andrew and is wholly equivocal as to whether Andrew is killed. Danielle pulls the trigger, and Andrew dies.

Contrast Darla who plays Russian roulette with Abe. Darla is very fond of Abe; indeed, the two are dating. Yet, Darla and Abe enjoy the rush that comes from playing Russian roulette. Darla pulls the trigger, and Abe dies.

In the first example, Danielle can be said to be indifferent in two different respects. First, her desire state about Andrew’s fate is one of

33As suggested by Dressler, supra note 31.

34See, e.g., Simons, supra note 2; Kenneth W. Simons, “Culpability and Retributive Theory: The Problem of Criminal Negligence,” 5 J. Contemp. Legal Issues 365, 371 (1994); R. A. Duff,

Intention, Agency, and Criminal Liability: Philosophy of Action and the Criminal Law

162–163 (1990).

35T his section draws from Kimberly Kessler Ferzan, “Opaque Recklessness,” 91 J. Crim. L. & Criminology 597 (2001) and Kimberly Kessler Ferzan, “Don’t Abandon the Model Penal Code Yet! Thinking Through Simons’s Rethinking,” 6 Buff. Crim. L. Rev. 185 (2002).

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indifference. She cares not whether he lives or dies. Second, she may be said to be indifferent because, although faced with imposing the risk of death, she chooses to pull the trigger.

Darla, on the other hand, is indifferent only in the latter sense. That is, Darla does care, indeed she cares deeply, about Abe. She is not indifferent toward his death. Nevertheless, we may still say that her choice, to play Russian roulette, manifests culpable indifference to human life.

The first meaning of indifference reflects attitudes that the actor has irrespective of how she chooses. The latter sense represents a normative evaluation of the actor’s choice. For the normative sense of indifference, we do not care about how the actor feels when we label her indifferent. Rather, no matter what she may wish, hope, or desire, we may decide that she does not care enough.

We are not opposed to the term “indifference” in the latter sense. Whether we employ the term “recklessness,” “indifference,” or “insufficient concern,” all three seem to encompass the disrespect for others that makes reckless conduct culpable. To us, culpable indifference is exhibited by the choice to engage in reckless conduct, the willingness to risk the bad side effects of one’s action for insufficient reasons. It is the outcome of the actor’s practical reasoning that is problematic. For us, all recklessness exhibits culpable indifference, and some reckless choices, because of the degree of their unjustifiability, exhibit extreme indifference.

On the other hand, we deny that indifference as an attitude is itself sufficient for culpability. First, we are opposed to this conception of indifference insofar as it might license punishment in the absence of conscious choice, as we discuss in our argument against punishment for negligence in the next chapter. But we are likewise unconvinced that this approach places responsibility on the correct aspect of the actor’s practical reasoning. For example, assume David runs the red light to get to the Knicks game, and he recognizes that there is a substantial risk of harm to others. But his desire to go to the game is so great that he decides to run the light anyway. We believe that David is reckless because, although he appreciates the substantiality and unjustifiability of the risk, he chooses to disregard it. But in deciding to disregard the risk of harm to others, David’s practical reasoning might go a variety of ways: David might value