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culpable with respect to risking the harms that these proxy crimes are designed to minimize should not be deemed culpable with respect to risking the proxy conduct when he is ignorant that risking that conduct is illegal.79

We return in Chapter 8 to this topic when we examine how our theory of criminal liability should be implemented in terms of doctrine. But however the theory should be implemented, ignorance of proxy crimes defeats culpability. One may be culpable for risking this ignorance for insufficient reasons. A gun collector would likely be culpable for failing to read the latest laws pertaining to gun ownership when aware that laws regulating gun ownership have been enacted. But culpability for unjustifiably running that risk (of ignorance of criminal regulations) will be different from the culpability attached to knowingly risking violating a known proxy crime – much as the culpability for getting intoxicated will differ from the culpability for consciously risking the specific harms one causes inadvertently because of intoxication.

C. IMPAIRED RATIONALITY EXCUSES

1. Excuses versus Exemptions

Before discussing when an individual’s rationality may be sufficiently impaired to warrant either an excuse or mitigation, we should begin by distinguishing excuses from exemptions. Irrational people are exempt from the criminal law. Rationality is the cornerstone of responsible agency. If an actor cannot comprehend or respond to norms,80 then it cannot be said that laws or morality are properly addressed to the actor.81 Young children, and the very insane, lack the capacity to reason sufficiently about their actions and are thus exempt from criminal liability.82

One problem in this area is how to deal with psychopathy. T he psychopath appreciates that his reasons do not legally justify the risk

79For an excellent discussion of ignorance of the criminal law, see Peter Westen, “Two Rules of Legality in Criminal Law,” 26 Law & Phil. 229 (2007).

80On rationality, see generally Moore, supra note 6; Stephen J. Morse, “Rationality and Responsibility,” 74 S. Cal. L. Rev. 251 (2000).

81See Moore, supra note 6, at 62.

82Id. at 64–65.

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he is imposing, but his understanding of why they do not morally justify the risk is beref t of the affective aspect of moral understanding. In the limiting case, the psychopath understands “morally wrong” as “others will get angry if you do it.” It is the understanding that small children have.83 The psychopath lacks empathy and lacks the reactive emotions associated with moral understanding, such as indignation and guilt.84

The issue of psychopathy, of course, raises the general question, If failure to understand moral reasons at all is exculpatory, why should not every misperception of the strength of reasons be exculpatory? Why is failure to understand the reason against killing exculpatory, but failure to understand that that reason is weightier than, say, the countervailing reason of thrill seeking is not exculpatory? After all, we have no control over how weighty reasons appear to us any more than we have over how the facts appear to us. Even if we have the general mental capacity to understand the proper weights of various reasons, on any given occasion we may have a temporary malfunction of reason so that a bad reason appears to us as good, or a less weighty reason as weightier. This issue obviously becomes part of the general freewill–determinism–moral responsibility issue and its implications for culpability.

2. Insanity

To understand how mental illness might eliminate culpability, we must again assume an actor who otherwise meets the criteria for culpability. He acts believing he is imposing a risk of a certain magnitude for reasons that do not justify imposing a risk of that magnitude.

So one way mental illness obviously can affect culpability must be put to the side. Mental illness can affect the actor’s estimate of the riskiness of his behavior, making him believe the risk to be lower than he would otherwise have estimated it. Or it may cause him to believe in the existence of facts that, if they did exist, would provide him with

83See Westen, supra note 16, at 364 (discussing why children are excused).

84See David Shoemaker, “Moral Address, Moral Responsibility, and the Boundaries of the Moral Community,” 118 Ethics 70 (2007); Peter Arenella, “Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral Accountability,” 39 UCLA L. Rev. 1511 (1992).

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good reasons for imposing the risk that he estimates. He may believe, because of his mental illness, that switching the trolley is not risky to the worker because the worker is an inflated balloon, not a human being. Or he may believe that he is saving five workers, although the five workers are in actuality only the product of a hallucination. In these cases, the actor is not culpable, and his mental illness plays an explanatory role. However, his mental illness is not itself material to his culpability or lack thereof.

In the criminal law there have traditionally been thought to be two ways that mental illness may defeat culpability when the criteria establishing culpability – the perceived risks and the reasons for imposing it – are otherwise present. One way is by mental illness’s effect on the actor’s ability to appreciate the wrongness of imposing the risks for the reasons he has for doing so. The other way is by its effect on the actor’s ability to refrain from acting culpably – that is, by its effect on his volitional control.

We are quite dubious about the volitional control prong of the defense of insanity, the so-called irresistible-impulse prong. We are skeptical that anyone can distinguish between an impulse that is truly irresistible – and remember, we are dealing with choices, not tropisms or reflex movements – and an impulse that is just not resisted.85 We have no doubt that some who are mentally ill act quite impulsively. But we do not see any reason to separate the impulsive and mentally ill actors from the larger group of impulsive but not mentally ill ones. Impulsivity undoubtedly affects the clarity with which actors perceive the risks of their acts and their ability to weigh reasons for and against those acts. But impulsivity is a different malady from insanity.

With respect to the cognitive prong of the insanity defense, again we must keep in mind that we are concerned with those actors who but for their mental illness would be culpable – they have acted for reasons that are insufficient to justify the risks that they themselves have perceived. So their mental illness must somehow cause them to fail to understand

85See Stephen J. Morse, “Culpability and Control,” 142 U. Pa. L. Rev. 1587 (1994); Stephen J, Morse, “Uncontrollable Urges and Irrational People,” 88 Va. L. Rev. 1025 (2002). See also Tadros, supra note 6, at 341–346 (arguing that for mental illness to undermine culpability by its effect on volition, the desire must be both inconsistent with the actor’s values and sufficiently strong to induce action regardless of its inconsistency).

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why their reasons do not justify those risks, and to fail to understand in a way different from how culpable actors fail to understand. It must render them unable to be guided by a proper balance of reasons in a way that the culpable are not unable so to be guided.86

3. Degraded Decision-Making Conditions

a. Altered States of Consciousness: Sometimes D will impose a risk on V while sleepwalking, or under hypnosis, or in a dissociative state known as automatism. D will, in some sense, be conscious of the risk he is imposing. And D will be acting for reasons, reasons that are insufficient to justify the risk. Yet because of the altered state of consciousness D is in, we may hesitate to deem him culpable.

Why are those in the grip of somnambulism, hypnotism, or automatism arguably nonculpable? If those states rendered them unaware of what they were doing, or made what they were doing completely unresponsive to their beliefs and conscious reasons, then their lack of culpability would be obvious. T hose in such altered states, however, are responsive to beliefs and reasons. One can carry on conversations with them. They do not stumble about, bumping into walls. They appear, rather, to be responsive to their environment.87

Criminal codes, however, do deem the somnambulant, the hypnotized, and those in states of automatism to be nonculpable. Although these actors meet the ordinary criteria for culpability by virtue of their awareness of the risks they are imposing and the absence of sufficiently weighty reasons for imposing that risk, their awareness of the risk and their reasons for imposing it operate at such a low level of consciousness that the law excuses their conduct.88

86For a sophisticated version of the view that insanity should not be excusing so long as the actor believes he is imposing a risk that would not be justified by the facts as he believes them to be, and so long as the actor can control whether he acts or not, see Christopher Slobogin, Minding Justice: Laws That Deprive People with Mental Disability of Life and Liberty 42–57 (2006).

87For a description of somnambulism and a survey of some of the medical and legal literature on the topic, see Mike Horn, Note, “A Rude Awakening: What to Do with the Sleepwalking Defense?” 46 B. C. L. Rev. 149 (2004).

88In Chapter 2, we argued that D may be held accountable for the preconscious aspects of his conscious choice. In the cases presented here, no part of the actor’s decision making occurs at the level of consciousness.

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Perhaps the leading work on altered states of consciousness as they bear on the criminal law is Robert Schopp’s Automatism, Insanity, and the Psychology of Criminal Responsibility:

The defense of automatism is appropriate when the offense involves behavior performed “in a state of mental unconsciousness or dissociation without full awareness, i.e., somnambulism, fugue.” Normal consciousness includes the person’s awareness of himself, his environment, and the relation between the two. The difficult cases in which the defense of automatism is raised are those in which some event, such as physical trauma or an epileptic seizure, has induced some degree of clouding of consciousness. When consciousness is clouded, the person experiences a state of reduced wakefulness and awareness. His ability to perceive and apprehend his environment and his situation in it is impaired, leaving him with an incomplete and inaccurate grasp of his environment and his place in it. In effect, the person is deprived of access to information regarding himself, his environment, and the relationship between the two. This condition of partial isolation from access to orienting information is directly relevant to the process by which an actor’s wants and beliefs characteristically produce his actions.89

After describing normal practical reasoning, Schopp continues:

A central ingredient in this account of a competent practical reasoner is access to a relatively complete array of information regarding himself, his environment, and the relationship between the two – that is, normal consciousness. A person who acts in a state of impaired consciousness is acting in a state of distorted awareness and attention such that his acts may be caused by an action-plan, but the plan is selected with access to only a small and nonrepresentative portion of his wants and beliefs. The actor’s wants and beliefs do not cause his acts, therefore, in the manner characteristic of ordinary human activity. Such an actor acts on an action-plan, and thus the relation specified by the culpability level between the act-token constituting the objective elements of the offense and the action-plan can obtain. Yet, the act is not voluntary because the process by which the actor’s wants and beliefs cause the

89Robert F. Schopp, Automatism, Insanity, and the Psychology of Criminal Responsibility: A Philosophical Inquiry 137 (1991) (footnotes omitted).

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act is impaired by his state of clouded consciousness, which limits and distorts his access to his own wants and beliefs.90

In other words, if Schopp is correct, we have to imagine that an actor in such a state of altered consciousness is aware that he is imposing a risk for a reason that does not justify the risk imposition, but he is unaware that there is another reason that is his that counsels against imposing the risk and outweighs his reason for doing so. He is unaware of this reason that he normally would act upon because his condition prevents him from accessing that reason.91

One hallmark of the altered states of consciousness characteristic of somnambulism, hypnotism, and automatism is the actor’s inability to recollect acts committed in those states. That in turn raises the question whether acts committed on “automatic pilot” might also be nonculpable.92 We have all experienced driving on a familiar route while daydreaming or engrossed in serious thought (about matters other than our driving) and finding ourselves at our destination with no ability to recall the trip. We obviously negotiated it successfully, attentive to risks and directions; yet we have no present recollection of having done so. Were we in the “fugue state” characteristic of the hypnotized or the somnambulant? Would we have been culpable had we imposed undue risks on others?

Finally, it must be kept in mind that even if those in certain altered states of consciousness are nonculpable for unjustified risk impositions, they may be culpable for imposing unjustified risks by getting into such states – by drinking, taking drugs, failing to take medications, undergoing hypnosis, and so on. Moreover, they are, as excused rather than justified actors, innocent aggressors, and they cannot be aided by third parties who lack their excuse. Their position in this regard is identical to those acting under duress or on mistaken beliefs.

b. Habitual, Impulsive, and Compulsive Conduct: We frequently act out of habit. If we attend too closely to the mechanics of bicycle riding or the golf swing, we will usually perform these actions poorly. And sometimes when acting out of habit, we consciously impose unjustified risks.

90Id. at 145.

91See also Westen, supra note 16, at 368.

92See also our discussion in Chapter 2.

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Habitual conduct is in many respects similar to impulsive conduct. Both are characterized by lack of deliberation. With respect to the question of culpability, both habitual and impulsive actors are in some sense conscious that they are imposing a risk at a magnitude that is not justified by their reasons for doing so. But they are acting so much on automatic pilot that their consciousness of the risk is, as with altered states of consciousness, both dim and not fully accessible.93

The criminal law does not, however, treat habit or impulse as an excusing condition, despite the similarity of each to altered states of consciousness with respect to access to beliefs and desires. The interference with such access is, to be sure, somewhat different. In the case of habits and impulses, the interference is a function of a sort of preprogrammed response that precludes deliberation, whereas in the case of altered states there is usually some unusual causal factor – physiological or, with hypnotism, influential.

It is also the case that most habitual or impulsive conduct has a conscious aspect to it. Although an actor may type the letter “t” out of habit (or on an impulse), she is very conscious of each and every word that she is typing. Thus, to the extent that acts committed out of habit or impulsively are accompanied by a conscious mental state with respect to risk, there is no reason to excuse the actor. Moreover, causally complex actions are typically committed at the fully conscious level (with the exception, perhaps, of reckless highway driving). We do not habitually pull the trigger, break and enter, force intercourse, or sell narcotics; nor do we execute those complex acts completely impulsively.

The criminal law is also not sympathetic to claims of weakness of will or, in general, claims that the actor’s desires did not conform to his values and yet overpowered his will to act in accord with those values. Compulsive desires to engage in otherwise-culpable risk imposition confront the actor with “hard choices,” just as do those threats that give rise to the excuse of duress. The alcoholic may have a compulsive desire to drink himself into a state of intoxication, which he realizes unreasonably risks harms to others. But unlike the “hard choices that

93See, e.g., Tillman Vierkant, “Owning Intentions and Moral Responsibility,” 8 Ethical Theory & Moral Practice 507 (2005) (raising doubts about occurrent responsibility for habitual conduct); Bill Pollard, “Explaining Actions with Habits,” 43 American Phil. Q. 57 (2006) (claiming that we are responsible for habitual acts).