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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.1

I. 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.2

We disagree.3 The world is full of risks to which we are oblivious. Or, more accurately, because risk is an epistemic, not ontic, notion, we frequently believe we are creating a certain level of risk when someone in an epistemically superior position to ours would assess the risk to be higher or lower than we have estimated. Sometimes the epistemically superior position is the product of better information: for example, the doctor knows that what we believe is just a mole is in fact a life-threatening melanoma. At other times, we have failed to notice something that another might have noticed, or we have forgotten something that another might have remembered. Once in a while, our lack of information, failure to notice, failure to make proper inferences from what information we do have, or forgetfulness results in our underestimating the riskiness of our conduct and causing harm.4

1 Model Penal Code § 2.02(2)(d) (1985).

2Michael D. Bayles, Principles of Law: A Normative Analysis 295–300 (1987); H. L. A. Hart,

Punishment and Responsibility: Essays in the Philosophy of Law 132–140 (1968); James Brady, “Punishment for Negligence: A Reply to Professor Hall,” 22 Buff. L. Rev. 107, 107–122 (1972); George Fletcher, “The Theory of Criminal Negligence: A Comparative Analysis,” 119 U. Pa. L. Rev. 401 (1971); Jerome Hall, “Negligent Behavior Should Be Excluded from Penal Liability,” 63 Colum. L. Rev. 632 (1963); Richard A. Wasserstrom, “H. L. A. Hart and the Doctrines of Mens Rea and Criminal Responsibility,” 35 U. Chi. L. Rev. 92 (1967).

3 T his section draws from Larry Alexander, “Reconsidering the Relationship among Voluntary Acts, Strict Liability, and Negligence in Criminal Law,” 7 Soc. Phil. & Pol’y 84 (1990).

4It should be borne in mind that the negligent actor is negligent irrespective of whether his act actually causes harm. He may estimate the risk from his act as lower than the nonnegligent, “reasonable” actor would have estimated, and it may turn out that his estimate is actually closer to the true risk – zero – than his nonnegligent counterpart.

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We are not morally culpable for taking risks of which we are unaware.5 At any point in time we are failing to notice a great many things, we have forgotten a great many things, and we are misinformed or uninformed about many things. An injunction to notice, remember, and be fully informed about anything that bears on risks to others is an injunction no human being can comply with, so violating this injunction reflects no moral defect. Even those most concerned with the wellbeing of others will violate this injunction constantly.6

II. Attempts at Narrowing the Reach of

Negligence Liability

Indeed, because people can make momentary mistakes, and because acts of clumsiness and stupidity hardly seem to be the sort of things for which we wish to hold people criminally liable, even those theorists in favor of punishing for negligence often seek to restrict its reach. That is, even for these theorists, the failure to live up to the “reasonable person” test is not alone sufficient for criminal liability. The challenge for those who wish to punish for negligence, then, is to find a principled way to distinguish those people whose substandard conduct renders them criminally liable from those who do not.

A. SIMONS’S CULPABLE INDIFFERENCE

Ken Simons argues that it is appropriate to hold a negligent actor accountable when she is culpably indifferent. Assume Alice and Betty both fail to appreciate a particular risk while they are driving. Alice fails to do so

5To be fair, the proponent of negligence liability requires that the risk be unjustifiable. Our view, that one is not culpable for taking risks of which we are unaware, perforce, extends to the subset of unjustified risks.

6It also does not help to say the actor should have gotten more information before he acted. Sometimes, when there is time to wait, the actor will be reckless for acting rather than waiting and inquiring further. He will be aware that even though he now perceives the risks of his acting to be low, waiting will reveal whether his perception of the risk is warranted. If his reasons for not waiting are insufficient to justify acting even in the face of the low risk that he perceives, his taking the low risk is unjustifiable. But again, all that shows is that the actor was reckless. It is not a case of negligence.

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because she is distracted by a call that a friend is in the hospital. Betty fails to do so because she is putting on lipstick using her rear-view mirror. Whom should the criminal law punish? In an early article, Simons argued that the determination should be made using a counterfactual test: if the person had been aware of the risk, would she have proceeded anyway?7

Unfortunately, this test raises new difficulties because it conflicts with our conception of free will (or, perhaps more aptly, our view that actors should be treated as capable of responding to the right reasons at the critical moment of action).8 It punishes an actor not for what she has done, but for the choice she might have made had she been presented with the choice. Under Simons’s theory, we should punish Betty if she has the sort of character on the basis of which we would predict that she would choose to take this risk had she adverted to it. Yet, many actors in a given set of circumstances might resort to crime, but we should not punish them until they have actually made that choice and acted on it. Responsibility should not turn on the prediction of future choices. Nor should it turn on assessments of the types of people we are.

Indeed, Simons recognized that his theory of culpable indifference creates a “significance in action” problem.9 That is, feelings about causing harm are passive, so how does one tie culpable indifference to an act? Simons argued that perhaps this desire (or lack thereof) must figure as a factor in the actor’s practical reasoning in performing the action.10 Such an approach, however, looks as if it collapses culpable indifference into our conception of recklessness. The actor is making a choice that involves consciously disregarding the interests of others and is indifferent to these interests in that sense.

Alternatively, Simons asserted that the relationship between indifference and the actor’s choice need only be causal.11 If by causal Simons meant that the indifference figured causally in the actor’s deliberations without figuring consciously in them, then, as Michael

7Kenneth W. Simons, “Culpability and Retributive Theory: The Problem of Criminal Negligence,” 5 J. Contemp. Legal Issues 365 (1994).

8T 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).

9 Simons, supra 7, at 391–394.

10Id. at 392.

11Id.

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Moore has noted, there are problems with relying on that type of causal approach. For example, when a man forgets his appointment with his girlfriend, “this failure to arrive at the appointed time shows that he does not care, not that he adopted this behavior as a means to show the woman that he no longer cares. His emotion, or lack of it, explains his behavior, but does not mean that he chose, even unconsciously, that specific behavior as the means of achieving some particular desire.”12

A causal account, moreover, is inherently problematic, as it opens the floodgates to problems associated with determinism. If everything is caused, are we then morally responsible for everything caused through our agency? Or are we responsible for nothing?

In his most recent work on the subject, Simons adopts a six-factor test to resolve the “significance in action” problem.13 Among the factors that he proposes is the “deflationary” requirement: “The basis of this prediction [that the actor would have acted in the face of a greater risk] is that when the actor is initially prepared to take the action, he possess the ‘higher’ mental state of knowledge, but by the time he acts, his mental state has ‘deflated’ to recklessness.”14 In contrast, Simons rejects punishing “inflated” mental states, where we predict the actor would have continued in the face of a greater risk because of “the principle of respecting the actor’s autonomy.”15 This restriction is important. However, for us, it does not go far enough, whereas for negligence proponents it may go too far. For the latter, Simons’s test fails to punish negligent Betty because that would require “inflating” her culpability. On the other hand, we fail to see why Simons’s reasoning that “the actor should be free to change his mind, even if at one point in time he firmly intends to commit a serious crime” does not apply as well to “deflationary cases” in which the actor does not act in the face of a greater risk but simply the lesser one that he now perceives.16 In a deflationary case,

12Michael S. Moore, “Responsibility and the Unconscious,” 53 S. Cal. L. Rev. 1563, 1631 (1980).

13Kenneth W. Simons, “Does Punishment for ‘Culpable Indifference’ Simply Punish for ‘Bad Character’? Examining the Requisite Connection between Mens Rea and Actus Reus,” 6

Buff. Crim. L. Rev. 219 (2002).

14Id. at 275.

15Id. at 280.

16Simons views his account to be an extension of Alan Michaels’s acceptance theory. See Alan Michaels, “Acceptance: The Missing Mental State,” 71 S. Cal. L. Rev. 953 (1998). In our