58	T HE CULPA BLE CHOICE

However, nothing in this section undermines the fact that the opaquely reckless actor should be considered reckless whenever the actor recognizes on a conscious level that her behavior is “risky” and is aware on a preconscious level why her conduct is “risky.”

Thus, we believe that where the actor consciously recognized that her conduct was “dangerous” and, at the preconscious level, appreciated the reasons why her conduct was dangerous, she may be said to be “conscious” of those risks. Whether she is reckless turns on whether her reasons for acting outweigh the degree of risk that she recognizes (even preconsciously).

3. Genetic Recklessness

Sometimes the actor’s act at T1 creates an unjustifiable risk that the actor himself will engage in nonculpable but highly risky behavior at T2. Suppose, for example, that the actor gets highly intoxicated at T1, so intoxicated that he cannot be deemed a responsible actor at T2. He might, at T2, drive a car dangerously and kill someone, or brandish a weapon and do so. He might cause lesser harms. Or he might luckily avoid injuring anyone. The same goes for an actor who deliberately fails to take his antipsychotic medication, or for the actor who deliberately fails to take his antiseizure medication before driving a car.

The Model Penal Code approach is to wait until T2 to assess the actor’s culpability. If he harms someone through risky behavior that he would have realized was too risky had he been sober or on his medications, then the Model Penal Code deems him guilty of recklessly causing the harm.60 If he does not cause harm or engage in conduct that itself would be the crime of reckless endangerment,61 he is not guilty of any crime.

The proper analysis is to view the actor’s act at T2 as the result of his reckless act at T1. If results do not affect culpability, as we argue in Chapter 5, what the actor does or does not do at T2 should be immaterial. If the actor’s act at T1 created, for insufficient reasons, what the

concluded that any prior choice likely lacks the requisite degree of culpability, and that the “choice” of perception priorities is elusive.

60Model Penal Code § 2.08(2) (1985).

61As we have shown, the notion of conduct itself being objectively reckless despite not causing harm requires the incoherent notion of “objective risk.”