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but metaphysical. These actors believed in a richer ontology than the criminal law contemplates.

Were they nonetheless reckless under our scheme? Or do bizarre metaphysical mistakes exculpate just as do factual mistakes, no matter how bizarre? If one accepted their ontological views the way we argue one must accept actors’ factual views when assessing culpability, then it would be difficult to deem them culpable. Believing one’s victim is a “witch” would be no different in its exculpatory power from believing one’s victim is a scarecrow, not a live human being. Of course, to the extent that the actor is aware of some risk that he may be wrong (she might not be a “witch” despite the fact that “she looks like one”),37 the actor might still be reckless for taking the risk of killing a nonwitch. Whether he would be will depend in how he estimates the competing risks, and what dangers he believes witches present.

4. Deontological Norms and Consequentialist Justifications

In balancing risks and reasons, we must also take into account deontological constraints on when actions may be consequentially justified. This leads to the question of whether we deem an actor who violates a deontological norm in order to do good – for example, he draws blood from nonconsenting X in order to save the lives of Y and Z – to have acted with insufficient concern. We are inclined to say that appropriating another for one’s own purposes, however benign, simply is manifesting insufficient concern toward that person. In such cases, the risks cannot be outweighed by the actor’s reasons. We take up this issue much more fully in Chapter 4, and we raise it again in Chapter 8 when we look at the retributive desert of those who act in ways that are justified by a consequentialist calculus but who violate deontological side constraints.

B. ASSESSING THE RISK

1. The Holism of Risk Assessment

In determining whether the actor is reckless, risk is assessed holistically. That is, we aggregate risks. Suppose, as will ordinarily be the case,

37T his is the test according to Monty Python and the Holy Grail (EMI Films, 1975): “How do you know she’s a witch?” “Because she looks like one.”

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that a given act increases by varying amounts the risks to various legally protected interests. So the actor might believe that act A increases the risk to legally protected interest I1 by R1, increases the risk to legally protected interest I2 by R2, and so on. His culpability for A is a function of the sum of the risks he imposes on those interests. It is not just based on, say, the highest risk A imposes, or on the risk to the most important interest. An armed robbery increases the risk to the bank’s money by a significant amount, to the physical safety of employees and customers by a different amount, to their emotional states by a still different amount, and so on. The risks created are to different interests and are of different magnitudes. Similarly, a speeding car increases risks of death, of bodily injury, and of property damage, and again the risks are of different magnitudes. Even if no one of the risks, viewed in isolation, would render the speeding reckless, the sum of them might. This is what we mean by the “holism” of risk assessment.

This raises the concern that if one were accidentally to kill in the commission of what is, under current law, a petty crime, our analysis would treat the accidental homicide as a reckless homicide so long as the commission of the petty crime entailed an ever-so-slight increase in the risk of an accidental killing (and the actor disregarded this risk). For the petty crime is unjustifiable, making every risk it imposes an unjustifiable risk, no matter how slight. We accept this result. First, as we argue in Chapter 5, results should not matter to desert and punishability. But, second, the holism of risk assessment means that committing a petty crime is reckless, not with respect to any discrete legal interest such as death but with respect to the whole array of legal interests the risks to which it increases. Because the actor believed that the increased risk of accidental death was very small, whereas the increased risk to whatever interest the petty crime is concerned with was much greater, his overall culpability for his recklessness will be pretty low, as compared with one who adverts to a high risk of death and a low risk to a petty interest.38 One is not discretely reckless as to death, discretely

38T his means, of course, that the recklessness involved in committing what is – again, under current law – a petty crime will vary according to the circumstances. One who attempts to kill a deer out of season will be reckless with respect to, inter alia, killing or wounding a human being. But he will be more or less reckless depending on whether he shoots at the deer in a sparsely or heavily populated area, or uses a bow and arrow or a bazooka. One would expect that the culpability for committing and attempting to commit what are

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reckless as to injury, and so forth for a given act; one is just reckless, as determined by the sum of risks and interests, with the level of culpability determined by which interests are subjected to which risks (and, of course, why).

There is a second nettlesome problem lurking in this neighborhood. Consider Frankie, who is driving quite carefully to Johnny’s house, intending to kill him. She is aware that even careful driving increases the risks of death, injury, property damage, and so on. And her reason for driving – to kill Johnny – is surely not a reason that would justify imposing even very tiny risks on anyone. So should we conclude that her driving – remember, it is careful driving – is reckless?

There are two possible solutions that we reject. One is to resurrect the substantiality prong of recklessness; the other is to measure risk by comparison to a counterfactual baseline. Ultimately, it is our view that we should accept that Frankie is reckless, even if she is only slightly so.

First, as we stated previously, we believe there are good reasons to reject the substantiality prong. Actors who play low-risk Russian roulette impose risks (albeit minuscule ones) for bad reasons. We believe these actors are culpable. Moreover, when an actor purposefully tries to harm another, it is immaterial how unlikely the risk of success is; if the actor believes he has even the slightest chance of success, he still acts purposefully and may, under current law, be punished quite severely despite his estimated low probability of success. We see no reason why it is normatively or conceptually desirable to view low-level risk imposition as immune from criminal liability.

The other possibility involves the baseline by which increases or decreases in risk are measured. For example, if Frankie were not driving to kill Johnny, would she be sitting at home watching TV, imposing virtually no risk to anyone of anything untoward, or would she instead be driving to the mall to shop, a route that is more heavily trafficked than the route to Johnny’s house and thus entails higher risks to others from

crimes under current law already includes culpability for the average amount of risk such crimes and attempts create regarding interests other than the interest that is the crime’s primary concern. But if the crime is committed in a way that imposes above-average risks on these other interests, the actor could justifiably be punished for the basic crime or attempt and for the additional amount of recklessness.

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even careful driving? If she would be going to the mall, then her driving to Johnny’s seems to be decreasing, not increasing, risks to others.39

One problem with a counterfactual analysis is figuring out what the actor would have been doing if she had not been doing what she did. There seems to be an endless array of possibilities, and the only thing we know about Frankie is that she chose to do what she did at that time; thus, it seems wholly speculative to predict what she would have been doing had she not made the very choice that she did make, and speculative in a way that seems immaterial to the culpability of what she did choose.

The counterfactual also presents a second problem. A counterfactual analysis takes us outside the subjective decision making of the actor

39T his counterfactual analysis may well be relevant in assessing damages in tort law. See Ariel Porat, “Offsetting Risks” (Olin Working Paper No.316, University of Chicago Law and Economics, 2007), available at SSRN: http://ssrn.com/abstract_id=946764. We argue here only that the counterfactual analysis should not be relevant in assessing culpability and hence criminal liability.

We should point out that were Frankie on a dual purpose trip – if, for example, she were

driving safely to the grocery store, but planned to stop at Johnny’s house en route and kill him – then her driving would not be reckless. Our claim that her driving is reckless is premised on the assumption that killing Johnny is her sole reason for driving. On the other hand, the mere fact Frankie is aware that another person, one in need of groceries, could drive Frankie’s precise route and manner nonculpably does not eliminate her culpability. Someone else’s reasons are not hers. Nor does this point contradict the position we take in Chapter 4 that an actor can be justified in imposing risks if he is aware of the existence of justifying reasons for his precise act, even if he is not motivated by those reasons. Frankie’s awareness that another person, in need of groceries, could nonculpably drive precisely as she is driving does not mean she is aware of reasons that justify her act. (If Frankie’s trip and her route had a dual purpose – kill Johnny and get groceries – then her carefully driving that route would not be culpable.)

Finally, the Frankie and Johnny scenario is useful in illustrating why purpose should be folded into recklessness. For under current law, if Frankie were to kill Johnny in a traffic accident while en route to his house to kill him with her .45, whether her killing of Johnny could be deemed “purposeful” would turn on whether Frankie was pleased, a la the Jackal, to be increasing the risk ever so slightly of killing Johnny by driving (safely) toward his house (rather than walking or biking there) – even though she thought her chances of killing him by shooting him were much, much greater – or whether, instead, Frankie wanted to kill Johnny only by shooting him, either because she wanted to have the time en route to reconsider, or because she wanted Johnny to know that she was going to kill him and to hear her reasons. In the latter case, Frankie’s accidental killing of Johnny is only reckless, in the former case it is purposeful. (Indeed, it would be purposeful through “transferred intent” even if Frankie’s accident killed someone other than Johnny, just as would the Jackal’s killing be purposeful if the bullet struck someone other than de Gaulle.) Yet the culpability in the two cases seems roughly the same.

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and into a hypothetical objective construct. In assessing recklessness, we need to know what the actor perceived her conduct to be risking and what her reasons for imposing that risk were. Certainly, if Larry goes to a nearby shopping mall to randomly fire a machine gun for the fun of it, it would be no defense for Larry to claim that his conduct actually decreased the risk to others because had that mall been closed he would have gone to a mall three blocks farther away, where more people would have been present. Larry and Frankie both impose risks that they are not at liberty to impose.

Our analysis seems to commit us to the claim that because the purpose of Frankie’s trip is illicit, all risks she adverts to are themselves illicit. This is exactly right. Someone who drives 100 miles per hour just to be able to see the first pitch of the game is reckless because his reasons for driving 100 miles per hour do not justify the risks he adverts to; likewise, even Frankie’s low level of advertent risk imposition is unjustifiable given her reasons for action. A carefully driving would-be murderer is acting recklessly in driving to the scene of the crime. As we argue in Chapter 6, those whom the criminal law now deems guilty of “inchoate crimes” – solicitation, conspiracy, and (incomplete “substantial step”) attempts – are not in fact culpable for the risks they have as yet failed to unleash. They are, however, culpable for the perceived risks they are currently unleashing en route to their ultimate criminal objective.

We suspect that the reason why Frankie’s case seems so intuitively problematic is because she is driving. Driving has become an absolute necessity in many areas of the country – people must drive to get to work, to go grocery shopping, and so on; and yet, driving surely imposes a myriad of risks on others. We are forced to tolerate these risks to some extent, and speed limits set a presumptive level of permissible risking. We allow people to drive within this level of risk creation, even when their reasons do not justify it. Thus, even if Deborah (mentioned earlier) only slightly liked driving, so long as she is driving carefully, we do not stop to ask her reasons for action. In principle, though, we should. Simply put, we should not be driving if we do not have a good reason for imposing the risks of driving on others. Once we get outside of the driving context, Frankie no longer appears problematic. If she walks to Johnny’s house with a gun strapped to her back and it misfires (a lowlevel risk she was conscious of), she is certainly reckless (and would