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IV. Proxy Crimes

Some crimes may usefully be distinguished as “proxy crimes.” 67 As Richard McAdams explains, a proxy crime refers to prohibited behavior that, “while not inherently risking harm, stands in for behavior that does risk harm.”68 McAdams points out that “frequently the origin of a proxy crime is a modification of a pre-existing offense where the conduct did inherently risk harm. The legislature decides, however, that it is difficult for the prosecutor to prove all the elements of the standard crime, so [it removes] . . . certain hard-to-prove elements, including ones that produced a necessary risk of harm. The result is a prophylactic crime, that bars conduct that neither causes nor risks harm but is correlated with conduct that is harmful or risky.”69

If we substitute for the ultimate harms we wish to prevent the conduct proscribed by the proxy crime, then just as we can have culpable risking of ultimate harms, we can have culpable riskings of that conduct, or so it might seem. The actor may believe that what he is doing creates the risk R that he will engage or is engaging in the proxy conduct. If the actor’s reasons are insufficient to justify risk R, the actor appears to be culpable.

But is he? Suppose the actor believes he is creating risk RP of the proxy conduct but only a much lower risk RH of the ultimate harm. And suppose his reasons justify taking risk RH. Then no matter how high RP, one could argue that the actor is justified in taking that risk. In other words, if the actor is justified in risking the ultimate harm, he cannot be unjustified in risking the proxy conduct.

It is perhaps for this reason that McAdams says that retributivists will reject proxy crimes and that only consequentialists regarding

67Richard H. McAdams, “A Tempting State: T he Political Economy of Entrapment,” 43 (Working Paper No. 33, Illinois Law and Economics, 2005). The first use of the term “proxy crime” that we are aware of appears in Moore, supra note 28.

68McAdams, supra note 67, at 44.

69Id. We should note that proxy crimes may be created not merely to relieve the prosecutor of the need to prove hard-to-prove matters but also to relieve actors of difficulties in estimating whether particular conduct is unduly risky. See, e.g., R. A. Duff, “Criminalizing Endangerment,” 65 La. L. Rev. 941, 960–961 (2005).

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punishment can justify them.70 For the moment, however, we accept proxy crimes into our repertoire and advert to their possibility from time to time in the following chapters. In Chapter 8, however, when we take up how our theory might be operationalized in a criminal code, and particularly whether the components of culpability may be rebuttably or conclusively presumed from proof of certain conduct,71 we return to proxy crimes and their legitimacy at much greater length.

We should also point out that a problem structurally identical to that raised by “proxy crimes” for culpability-based punishment is raised by formal legal exclusion of specific justificatory reasons because of slippery-slope, consequentialist fears. Suppose, for example, that some cases of voluntary euthanasia – indeed, some cases of nonvoluntary euthanasia as well (mercy killings) – are in fact justifiable. Suppose also, however, that there is a real risk that if a euthanasia justification is legally countenanced, many more cases of unjustified killings will occur. People in good faith will believe they are in circumstances that justify killing when they are not. And others in bad faith will kill unjustifiably believing that they will escape punishment by convincing a court that their killing was justified, whether or not they in fact do escape punishment. Society may decide that net fewer unjustified killings and forgoings of justified killings will take place if euthanasia is forbidden even in cases where it would otherwise be justifiable. In that event, an actor who commits otherwise justifiable euthanasia, aware of the justifying facts, will still be punished. But is such an actor culpable, and if not, is his punishment justifiable?72 We take this issue up again in Chapter 8 when we take up “proxy crimes.”

In this chapter, we have sought to clarify insufficient concern, which we take to be the essence of culpability. Insuffi cient concern entails choosing

70McAdams, supra note 67, at 44. See also Douglas Husak, “Crimes outside the Core,” 39

Tulsa L. Rev. 755 (2004).

71For an excellent analysis of this question, though not from a retributivist perspective, see Frederick Schauer and Richard Zeckhauser, “Regulation by Generalization,” (AEI-Brookings Joint Center for Regulatory Studies, Working Paper No. 05–16, 2005), available at http://ksgnotes1.harvard.edu/Research/wpaper.nsf/rwp/RWP05–048.

72See Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules and the Dilemmas of Law 92 (2001).

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to take risks to others’ legally protected interests for insufficient reasons. We have argued that a modified version of recklessness embodies insufficient concern, as a comparison of risks and reasons, and that purpose and knowledge may be normatively and conceptually folded into this evaluation. We have also addressed particular questions about how risks and reasons are identified and balanced. In the next chapter, we argue that negligence does not manifest insufficient concern and is not an appropriate target of the criminal law.

C H A P T E R

I I I

Negligence

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

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