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Garvey’s argument is fatally circular. One only has a reason to control the desires that might interfere with one’s perception of risks if those desires are preventing you from perceiving risks. But if one cannot perceive the risks, one has no (internal) reason to control the desires. The desires may blind the actor to the risks he is imposing. But if they do, they likewise blind him to the reasons he has to control them.

Or, to put the point another way, Garvey’s self-deception view conflates a notion of agency that focuses on one’s conscious decisionmaking abilities with a notion of agency that includes conscious and unconscious desires. Blameworthiness, as Garvey concedes, rests on the first notion of agency, but the inappropriate desires are found within the second, broader agency account. Therefore, Garvey cannot maintain (as he does) that the actor is to blame for not controlling his self-deceiving desires, the very existence of which blind him (in the narrow agency sense) to both the desires’ existence and the reasons to act otherwise.

III. The Strongest Counterexample to Our Position

Despite our dissatisfaction with current theoretical defenses of liability for negligence, we realize that both the current criminal law and most people’s intuitions run against us on the issue of whether inadvertent negligence is culpable, so we would like to construct what we believe is the strongest example on the side of majority opinion. Sam and Ruth are a self-absorbed yuppie couple with a small child. They are throwing a dinner party for some socially prominent people who can help both of their careers and social standing, and Sam and Ruth are quite obsessed with making sure the party is a success. They put their child in the bathtub and begin drawing bathwater, but just then the first guests begin to arrive. Sam and Ruth both go downstairs to greet the guests, both realizing that the child would be in grave danger if they failed to return and turn off the water, but both believing correctly that at the rate the tub is filling, they will have plenty of time to return to the child after they have welcomed the guests. Of course, when they greet their guests they become so absorbed with making the right impression that both forget about the child, with tragic consequences.

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If there is ever a case of culpable negligence, this is it.25 Sam and Ruth are not morally attractive people. And their moral shortcomings have played a role in their child’s death. Still, we would argue, they did not act culpably.26 When they went downstairs they did not believe they were taking any substantial risk with their child, perhaps no more substantial a risk than we believe we are taking (for the sake of our careers) when we attend a workshop and leave our children with a sitter. Of course, once Sam and Ruth became engaged with their guests, the child’s situation slipped out of their minds. And once the thought was out of their minds, they had no power to retrieve it. They were at the mercy of its popping back into their minds, which it did not.

Some may worry that by not punishing Sam and Ruth, we are breeding selfish actors, who are then likely to engage in conduct without caring sufficiently about others to advert to risks they are creating. Such actors seem to be rewarded for training themselves to be negligent. This objection can actually be divided into two different concerns. The first is that the law, as formulated, may encourage this behavior. We may be telling people that it is okay for them to act incautiously rather than for them to parse through the risks they are presenting. What should be noted about this concern is its consequentialist nature. Rather than being concerned with punishing culpable action, this objection fears that we are promoting unwelcome behavior. Our project, however, should first be to determine who the culpable actors are. If actors with bad characters such as Sam and Ruth do not warrant punishment, we simply cannot punish them. T he criminal law serves to prohibit bad conduct; it is not a device to make citizens more virtuous.

The second approach to take toward actors who manifest bad character traits by failing to advert to risks is to say that such failure to advert is culpable. But character traits are not under actors’ direct control. We do not choose our characters, nor can we change our characters at will,

25Of course, if they adverted to even the minuscule risk that they would forget about their child in the bath, and their reasons for taking this risk did not justify it, they would have acted recklessly in going downstairs, not negligently. Cf. Andrew Halpin, Definition in the Criminal Law 133 n.236 (2004). But it should be noted that we often expose our children to trivial risks for fairly unimportant reasons.

26Contra Kyron Huigens, “Is Strict Liability Rape Defensible?” in Defining Crimes: Essays on the Special Part of the Criminal Law 196, 202–204 (R. A. Duff and Stuart P. Green, eds., 2005).

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at least not at any given moment in time. The hallmark of criminal responsibility is culpable choice, and negligent actors have not chosen to risk or to cause harm.27 As we argued in response to Tadros’s position, the way in which we understand our own characters and our own failings is limited. We may not know our true character. Our weak character traits may be the very traits that keep us from being aware of our failings. We may not understand how our vices might result in harm to others. Even when we become aware of our flaws, we have limited ability to change our characters. Therapists rarely offer one-time solutions; rather, they offer weekly visits and years of introspection.

As Gideon Rosen, Michael Zimmerman, and Ishtijaque Haji have written, one is culpable only for acts over which one has control.28 If one is unaware that, say, someone has replaced the sugar on the table with poison, then one is not culpable for placing that poison in another’s coffee and thereby killing her. For although one is in control of the conduct of placing the white substance in the coffee, the mistaken belief that it is sugar deprives one of the kind of control necessary for culpability. What holds true for conduct taken in ignorance of its nature or likely consequences also holds true for the ignorance itself. One is not culpable for one’s ignorance unless one is in control of it. And one can be in control of one’s ignorance only indirectly, say, by deliberately refraining from learning something while being aware that one is running an unjustifiable risk of dangerous ignorance.

27Even some who believe we are morally evaluable on the basis of our attitudes, beliefs, and perceptions do not deem us blameworthy or punishable for such attitudes because of our lack of direct control over them. See, e.g., Angela M. Smith, “Responsibility for Attitudes: Activity and Passivity in Mental Life,” 115 Ethics 236, 266–267 (2005). But see George Sher, “Out of Control,” 116 Ethics 285 (2006) (arguing for a more capacious notion of control).

Stephen Garvey concurs, arguing that even racists who honestly perceive as a threat something that they would not have perceived as threatening had they not held racist beliefs cannot be deemed culpable for their mistakes. The mistake was a product of their racism, but they can neither be punished for being racists nor be blamed for having their beliefs affected by their racism. Stephen P. Garvey, “Self-Defense and the Mistaken Racist,” 11 New Crim. L. Rev. 119 (2008). We agree.

28See Gideon Rosen, “Skepticism about Moral Responsibility,” in Philosophical Perspectives 18, Ethics (2004), 295–313; Ishtiyaque Haji, “An Epistemic Dimension of Blameworthiness,” 57 Phil. & Phenomenological Res. 523 (1997); Michael J. Zimmerman, “Moral Responsibility and Ignorance,” 107 Ethics 410 (1997). For an attempt to rebut Zimmerman, see James Montmarquet, “Zimmerman on Culpable Ignorance,” 109 Ethics 842 (1999). See also Peter B. M. Vranas, “I Ought, Therefore I Can,” 136 Phil. Stud. 167 (2007).

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Because the purpose of the criminal law is to prevent harm by giving us reasons to act and to refrain from acting, the criminal law does not reach the negligent actor at the time he undertakes the negligent act. At that time, the negligent actor is not aware that her action unjustifiably risks causing harm, and thus cannot be guided to avoid creating that risk by the injunction to avoid creating unjustifiable risks.29

Now, there may be times when an actor has made a culpable choice that results in her later inadvertence. These cases are not instances of negligence. They are instances of recklessness. Consider the well-known case of People v. Decina.30 Assume that the actor, knowing he is prone to epilepsy, consciously disregards the risk that he might suffer a seizure and kill four people, but decides to drive anyway. At the moment of the seizure, there is no voluntary act. However, if when Decina got into the car, he consciously disregarded the later risk that he might suffer from a seizure, then this choice – the choice to drive anyway – is a culpable choice. It is upon this culpable action that criminal responsibility can rest.

Of course, looking for prior culpable choices is not without its practical problems. When we look back from a negligent act, there may be a prior culpable choice, but there may not be.31

Consider someone who, as he is returning from work and driving into his driveway, notices that his brakes are soft. He realizes that it would be reckless to drive with the brakes in that condition, so he resolves to have them fixed before driving. He also knows that he is likely to forget this by the next morning, so he resolves to write a reminder note to himself when he gets inside his house.

Suppose he does not do so. Then he may be reckless for deciding not to write the note, even if the next morning he remembers to get the brakes fixed, or drives without incident. For he consciously ran an unjustifiable risk of forgetting the brakes, then driving, and then causing an accident.

On the other hand, if his failure to write the reminder note was due to being greeted upon entering the house with the news that his father

29Of course, punishment for negligence may deter the reckless actor who would otherwise believe that his recklessness could not be proved at trial. But it does so at the cost of punishing some who are known or believed to be nonculpable.

30138 N.E.2d 799 (N.Y. 1956).

31Cf. Simons, supra note 7, at 380–386.