244	T HE CULPA BLE ACT

Of course, adding duration as an element increases the complexity of determining the actor’s culpability. And, as we just mentioned, the critical determination will be the actor’s assessment of the risks, the reasons the actor believes are available (discounted by the probabilities of their actually obtaining), and the actor’s belief regarding the durations of the various risks he is imposing. All of these factors combine with the fact that the actor will often not simply act in a way that imposes a risk but will then omit to stop the harm from occurring.

To illustrate, assume D1 lights a bomb fuse that he knows will take twenty minutes to detonate. D1 immediately boards a plane to Paris. D2, in contrast, lights a twenty-minute fuse but decides to stay there, figuring he can snuff out the fuse at any time.

D1’s only act is lighting the fuse. His culpability is a product of the risks he believes he is imposing times the duration of that risk in light of his reasons for acting. Holding reasons constant, it seems that D2’s initial act will be less culpable because he will assess the risk to be lower (given that he thinks he may later want to snuff out the fuse). However, D2 has a duty to snuff out the fuse because he, unlike D1, retains the ability to do so. Over the course of the twenty minutes, the risk that D2 realizes he is creating by not snuffing out the fuse increases – he realizes that even if he has a change of heart, he may confront obstacles to snuffing the fuse and have insufficient time to overcome them – so he becomes more culpable over time, with his total culpability approaching that of D1 as its limit.

IV. Individuating Crimes

Doctrinally, questions of crime counting arise under the double jeopardy clause. The double jeopardy clause has multiple aims: it forbids reprosecution for the same offense after conviction, reprosecution for the same offense after acquittal, and multiple punishments for the same offense.26 But to prevent reprosecution for the same offense or to prohibit multiple punishments for the same offense, one must know when conduct constitutes the same offense as that for which the

26 See generally “Double Jeopardy,” 35 Geo. L. J. Ann. Rev. Crim. Pro. 422 (2006).