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Finally, with respect to (4), A will estimate the risks and costs to himself of the various courses of action considered in (3). What is the chance of his drowning if he goes in? Of ruining his new suit? Of suffering great fatigue or emotional distress? And so on.

A may be culpable either for doing nothing or for choosing one method of rescue rather than another of which he was aware. What will not be material to A’s culpability is what actually happens to V. Nor will it be material to A’s culpability whether T actually exists, whether V was actually in peril, whether the alternative acts would or would not have been successful, or whether they would or would not have harmed or imposed costs of certain magnitudes on A. All that is material to A’s culpability is what he chooses to do given the various probabilities he estimates in (1) through (4), and what his reasons are for so choosing. Culpability for omissions mirrors culpability for risk impositions, the only difference being the complexity of the risk analysis. Instead of being concerned merely with the various risks of harm A estimates his specific act will impose on V, and A’s reason for so acting, we now must be concerned not only with the risks to V that various alternative actions will reduce rather than impose but also with A’s reasons for choosing or avoiding the various possible actions and with A’s estimate of the probability that he has no duty to act at all. A may estimate that it is 50 percent likely that he has a duty to rescue V – V is, say, 50 percent likely to be A’s son, or so A estimates; A may believe that it is 75 percent likely that V will drown if A does nothing, 50 percent likely that V will drown if A hails a lifeguard, but only 25 percent likely that V will drown if A attempts the rescue himself; and A may estimate the risk that he will drown at 5 percent if he attempts to rescue. If A hails the lifeguard because of the 5 percent risk of drowning, then the question will be, given his other estimates, is A culpable for not rescuing V himself? And, again, it will be immaterial whether V in fact drowns, whether V is A’s son, or whether A underor overestimated the risk (relative to others’ estimations) that he would drown or that hailing the lifeguard would succeed.

C. THE CRIME OF POSSESSION

Possession of many items – for example, narcotics and various firearms – is criminalized under current criminal codes. Possession crimes

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almost never represent imposition of undue risk of harm to others or even the actor himself. They must therefore be considered proxy crimes, where being in possession of certain substances is highly correlated with anticipated impositions of undue risks of harm.

We discuss proxy crimes at some length in the next chapter, so we do not discuss this aspect of possession crimes here. Nor do we spend any time on the point that possession typically – almost exclusively – is a crime of omission rather than commission. Although one can possess by the act of physically grasping something, more typically one possesses an item by having it be within one’s dominion and control. Because the latter can occur without any voluntary act, the crime of possession usually is predicated on omitting to relinquish dominion and control over the item.

Leaving aside the vagueness of dominion and control (and the vagueness of its correlative of relinquishing such dominion and control), notice that to go from the state of finding oneself in possession to that of having relinquished possession requires some minimum amount of time. If Al notices that someone has left a bag of cocaine on his coffee table, there is some minimum amount of time that it will take Al to cross the room, pick up the cocaine, and dispose of it in whatever way would render him no longer in possession. Until that minimum amount of time has passed, Al cannot be deemed culpable for being in possession of the cocaine, for he has made no culpable choice regarding that possession.

Al might be able to sprint to the cocaine, pick it up, and flush it down the toilet in fifteen seconds. If Al takes twenty seconds to do so, is he culpable for whatever choice left him in possession the extra five seconds? What if he finished his cup of coffee and went to the bathroom before getting rid of the cocaine, costing him an extra five minutes of possession? Would he be culpable for those choices? Because it is not necessary that the extra time of possession increase the risk of harms to others (or to Al), it is not clear how the law should answer these questions. Al’s reasons for delay – to finish his coffee and so forth – are not offset by any significant increases in risks of harms and thus appear otherwise justifiable. Perhaps all the law can do here is specify an arbitrary time period – though occasionally an actor who exceeds it will have made no culpable choices en route to doing so.