134	T HE CULPA BLE CHOICE

the culpable victim can be culpable, the actor’s perceptions of both the risk from and the culpability of the victim, the actor’s alternatives for avoiding the risk, and the actor’s implication in the victim’s culpability. To resolve these issues would require a separate book. For our purposes here, raising them suffices.

Finally, in Chapter 8 we ask whether these various factors that bear on the actor’s culpability are best dealt with by making fine-grained, case-by-case determinations of culpability or are instead best dealt with by blunt, coarse-grained rules. The latter will, of course, treat some truly nonculpable actors as culpable and thereby deserving of punishment for the purpose of securing a better match of verdicts of culpability to actual culpability over the long run of cases. Whether that is itself a “using” (of the nonculpable) and violative of a deontological constraint is a serious question. On the other hand, the fine-grained approach tells citizens nothing more than that they may not impose “unjustified” risks. It is surely possible that such a vague standard of behavior will produce more unjustified risk imposition among the well-meaning but epistemically limited – and among those who are not well meaning but who believe, rightly or wrongly, that they can convince a trier that they are – than will coarse-grained but much more determinate rules. We return to this issue when, at the end of the book, we ask what an ideal culpability-based criminal law would look like.

III. Excuses

Even when an actor’s conduct is not justified, because of a peculiarity of the actor or the situation in which she finds herself, she may be nonculpable. Under current law, duress and insanity offer the actor an excuse in certain instances where the actor lacks the capacity or fair opportunity to know the nature and quality of her act, to know that it is wrong, or to conform her conduct to the requirements of law.56

We believe, however, that the current law should be modified in a number of ways. First, we believe that the doctrine of duress should be expanded so that it excuses not only actions that currently are criminal

56 See Model Penal Code §§ 2.09, 4.01 (1985).