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we may have better evidence about what an actor would have otherwise done, but punishment in such a case is still punishment for a choice the actor did not make but (very well) might have made under different circumstances. From either perspective, Simons takes an untenable middle position.

B. TADROS’S CHARACTER APPROACH

Victor Tadros has also sought to narrow negligence.17 He claims, first, that as agents, what we believe reflects on our character. We are therefore responsible for those things we believe and do not believe if those beliefs are attributable to our virtues and vices. Second, of those beliefs (or lack thereof) for which we are responsible, we should be held criminally responsible for those beliefs that manifest insufficient concern for others’ interests.

We have our doubts about both parts of this test.18 First, consider Tadros’s argument that we are responsible for the way that we form beliefs. According to Tadros, our belief formation reflects our character, and we are responsible for those actions that reflect our character. He further claims that the “character” for which we are responsible is evidenced by our desires, including not only those desires with which we identify but also those desires that are alien to us if we make no attempt to change them.

But there is a significant gap between our omitting to get rid of a desire and our actually causing harm to another. First, we might ask at what point the actor becomes aware of this vicious trait. Sometimes we learn about our values only when we act. (Nor would hours of navel gazing or therapy usefully help us to divine some of our own values.) If we do not know we have a desire, how can we be said to accept it? Second, the very character trait that leads to insensitivity to others may prevent

view, Michaels’s account is quite different as it seeks to track an actual psychological state of the actor – not to punish the actor for a mental state she would have otherwise had. See Kimberly Kessler Ferzan, “Holistic Culpability,” 28 Cardozo L. Rev. 2523, 2531–2532 (2007). Indeed, Michaels himself does not seek to extend acceptance beyond those cases in which the actor is already aware of the risk. Michaels, supra note 16, at 962 n.26.

17Victor Tadros, Criminal Responsibility ch. 9 (2005).

18T his section draws from Kimberly Kessler Ferzan, “Act, Agency, and Indifference: The Foundations of Criminal Responsibility,” 10 New Crim. L. Rev. 441 (2007).

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the actor from recognizing her own character flaws. Finally, even if we know we have a particular desire, is it fair to say that we know what its implications are? How often will an actor recognize that her flaws could result in harm to other people?

As for the second part of the test, we are uncertain as to how an act can manifest insufficient concern for others in the absence of some sort of culpable choice by the actor. The driver who believes that she can put on mascara while driving may have a flawed character, but how exactly is it that her action manifests her insufficient concern? Tadros has the very same “significance in action” problem that we saw with Simons’s approach.

C. GARVEY’S DOXASTIC SELF-CONTROL THEORY

Stephen Garvey has recently produced a sophisticated argument for why some cases of inadvertence to risk are culpable.19 To the question of how retributive punishment of those who inadvertently create lethal risks can be warranted, Garvey gives this reply:

The answer I propose is this: An actor who creates a risk of causing death but who was unaware of that risk is fairly subject to retributive punishment if he was either nonwillfully ignorant or self-deceived with respect to the existence of the risk, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor does not consist in any choice to do wrong, but rather in the culpable failure to exercise doxastic self-control, i.e., control over desires that influence the formation and awareness of one’s beliefs. An actor who is nonwillfully ignorant allows desire to preclude him from forming the belief that he is imposing a risk of death when the evidence available to him supports the formation of that belief, while an actor who is self-deceived forms that belief but allows desire to prevent him from becoming aware of it. In either case the actor could and should have controlled the wayward desire, thereby allowing the relevant belief to form and surface into awareness.20

19Stephen P. Garvey, “What’s Wrong with Involuntary Manslaughter?” 85 Tex. L. Rev. 333 (2006).

20Id. at 337–338.

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Garvey goes on to argue that not just any desire that prevents one from becoming consciously aware of a risk that one either does subconsciously recognize or possesses the information required for recognizing suffices for culpability. He contrasts the case of Walter and Bernice Williams, whose desire not to have their son Walter taken from them by the welfare authorities perhaps prevented them from perceiving Walter’s urgent need for medical care and the risk of death he faced, with the fictitious Sam and Tiffany, whose desire to further social climbing by putting on “the party of the decade” caused them to fail to recognize a similar risk to their child.21 For Garvey, the less admirable desire of Sam and Tiffany, given its causal role in their not adverting to the risk to their son, renders them culpable for their inadvertence, while the Williams case is a much closer call.

Garvey makes it clear that no one deserves punishment merely for possessing base or nonadmirable desires.22 It is only when the desire interferes with the actor’s perception of risk that culpability ensues. The actor in that case is culpable because he does not resist the desire that blocks his formation of the belief about risk that he otherwise would form. The actor has failed to exercise “doxastic self-control.” 23

But what puts the actor on notice that he should exercise such doxastic self-control? For Garvey, it is the awareness that his act is somewhat (but not unduly and hence culpably) risky.24

All of our acts are potentially risky, however. Suppose Sam and Tiffany recognize that there is some risk their son needs prompt medical attention. They would not be any different from any parent who rightfully does not rush her child to the pediatrician at the drop of a symptom. (Any common complaint – a headache, a sore throat, an upset stomach – can be the sign of an emergency, although it usually is not; and we do not deem the average parent, who surmises “it’s just a cold,” reckless for not seeking immediate medical attention.) So why then would Sam and Tiffany be culpable for continuing with their party planning?

21State v. Williams, 484 P.2d 1167 (Wash. Ct. App. 1971); Garvey, supra note 19, at 333–337.

22See Garvey, supra note 19, at 362–363.

23Id. at 365.

24Id. at 368–369.