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this estimate against the actor’s reasons for acting, which must also be discounted by the actor’s estimate that those reasons will obtain. And if the determination of that balance reveals that the actor’s action is unjustifiable, the assessment of the actor’s culpability is still not complete. For, as we have noted, the criminal law must also assess the quality of the actor’s deliberation – a factor that can either mitigate or aggravate the actor’s culpability. Finally, the criminal law must determine the duration of the risk imposed.

The first part of this chapter discusses the mechanics of our idealized criminal code. We begin by normatively defending our “unpacking” of crimes. We then survey the types of interests that the law could potentially protect. We then describe how we believe a criminal code could function under our regime.

In the second part of the chapter, we turn to practical considerations and discuss how our ideal criminal code could be implemented, including how it could be modified for application in the real world. We begin by describing the significant problems with the status quo, arguing that our radical departure from current law should be viewed in the context of the currently problematic system. Next, we argue that the basic difficulties with implementing our code are just instantiations of the rules-standards problem. We ultimately defend a standards-based approach, and we note ways in which the law may be able to give guidance without resorting to “proxy crimes.” Finally, we defend our view against claims that our criminal code encounters problems of legality and enforceability.

I. An Idealized Culpability-Based Criminal Code

A. LEGALLY PROTECTED INTERESTS

Our criminal code must enumerate those interests that it seeks to protect. This requirement raises a number of questions. T he first question is whether, as a normative matter, we should “unpack” criminal wrongs into these building blocks. Although in Chapter 7 we defended such unpacking on conceptual grounds, in the first part of this section we defend this approach on normative grounds. In the second part of this section, we turn to the question of which interests should be

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protected by the criminal law. Although we cannot defend a theory of criminalization here, we raise some of the critical questions concerning punishing risks of harm to self and others, risks of offense, and risks of harmless wrongs. We also briefly discuss the role of consent.

1. A Normative Defense of Unpacking Crimes

In the previous chapter, we argued that it is conceptually preferable to understand a crime as a volition to move one’s body in a way that the agent believes will create a risk (which is unjustifiable) to a legally protected interest. This approach is conceptually superior because it resolves a host of thorny problems ranging from how to treat continuous courses of conduct to how to approach the double jeopardy clause.

Still, one might object that something is missing from a criminal code that does not list wrongs – those specific act types that harm specific legally protected interests. We speak of rape, murder, and robbery, not of unjustifiable risks. Is there not something missing from an account of the criminal law that does not mirror our ordinary understanding of wrongful conduct?

In our view, our approach brings precision, clarity, and deeper understanding to the criminal law. One significant problem with an act-type system is that too much hangs on the ability to place any specific act of risk creation within any given act-type category. As we noted in the previous chapter, rape is a clear example of this. Long ago, Susan Estrich bemoaned the disparate treatment between “date rapes” and “real rapes.” 1 Her claim was that they are all rapes.

We disagree. We do not doubt that date rapes are serious wrongs, and we will assume that the criminal justice system still underpunishes these (and other) serious wrongs. What we question is whether the effort to place the myriad of different unconsented-to acts of sexual intercourse within the rubric of “rape” is a worthwhile effort. Why, for example, should we understand rape, at its core, to be simply about the use of another human being?2 Should not the criminal law take into account whether the victim found the rape pleasurable (as might

1 See Susan Estrich, Real Rape 3–4 (1987).

2See J. Gardner and S. Shute, “The Wrongness of Rape,” in Oxford Essays on Jurisprudence (J. Horder, ed., 2000).

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happen in a case of deception); or whether the victim was sleeping; or whether the victim did not communicate consent but also did not resist; or whether the victim was brutally beaten during the act? Let us be clear – society can accept that all of these acts are criminal. But they present different risks to different legally protected interests. Which interests of those affected are more important? Which acts risk more harm? These are important issues, and they are obscured by the effort to place all of these acts into one criminal act type. We can more readily identify and rank these interests when we look at each one individually. To summarize, one reason to abandon labels of particular types of wrongdoing is because such labels tend to obscure rather than to clarify the underlying normative justifications for punishing these different types of culpable riskings.

A second significant problem with the act-type approach is that the current system will often declare an act criminal and hence punishable without any thought to the interest that is being protected. Although, theoretically, a statute may be subject to a constitutional challenge if it lacks a rational basis, the number of statutes that are currently rationally but remotely linked to actual harms is staggering. Drug offenses, particularly possession offenses, are a classic example of this phenomenon. Although we may be able to articulate the crime of drug possession, one will be hard-pressed to articulate its underlying rationale. What precisely are the harms that are risked by an actor possessing one ounce of marijuana?3 By contrast, our approach equates the crime with its underlying justification by equating crime with culpable acts, and culpable acts with risks imposed for inadequate reasons. Thus, if one cannot articulate an interest excessively put at risk, one cannot articulate a crime.

A third reason to reject act-type categorization is that it creates false distinctions between types of offenses, potentially allowing similarly culpable actors to receive significantly different penalties. Consider murder and manslaughter. Currently, an actor may be guilty of murder on the basis of several different culpability types. He may act

3See Douglas Husak, Overcriminalization: The Limits of the Criminal Law 166–167 (2008). Husak calls this unidentified harm, “harm X.” See also Douglas Husak, Legalize This! The Case for Decriminalizing Drugs (2002).

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purposefully, knowingly, or recklessly if such recklessness manifests a depraved heart. On the other hand, an actor is guilty of only manslaughter if he kills recklessly or negligently. The distinction, then, between murder and manslaughter is a fine one – a jury decision along a continuum. At some point, a homicide becomes so reckless that the jury thinks it warrants more punishment (murder) than does another, slightly less reckless, homicide (manslaughter). The bottom line is that there is no definitive line between murder and manslaughter – they are different in degree but not in kind. Thus, even though it appears that we have clear conceptual categories of homicide – murder and manslaughter – the reality is somewhat different. Both protect the same interest, and the culpability that supposedly distinguishes them is an arbitrary line (and a different one in different jurisdictions with different juries) on a culpability continuum.

Finally, we should discuss the concern that our approach cannot capture a certain type of wrongdoing, and that is the group of inten- tion-drenched wrongs. One cannot lie without the intention to lie. One cannot torture without the intention to cause pain. These crimes are unraveled by our approach not only because we focus on risks to interests and not act types, but because we deny the significance of intention as its own separate culpable mental state.

We believe that nothing is lost by our approach, however. These offenses can and should be analyzed by their discrete elements. Indeed, one of the paradigmatic examples of an intention-drenched crime is the crime of attempt, a crime we have no problem unraveling.4

Moreover, although these crimes entail intention, there is no reason we need to rely on these particular crimes as currently understood. First, as we have argued, conceptually, intention (or purpose) is but a particular species of recklessness so there is no conceptual reason why we cannot speak of recklessness instead of intentions. Even if consciously imposing a high risk that another will be misled is not “lying,” it still may be – or may not be, depending upon the actor’s reasons – a culpable, reckless act with respect to the interest in not being misled.

4T his is a case where even those theorists who believe that crimes can be understood without mental elements, like Paul Robinson, create an exception. See Paul H. Robinson, Structure and Function in Criminal Law 133 (1997).

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Indeed, recognizing the relationship between recklessness and intention may resolve current confusions. For example, New York courts have struggled with the question of whether a depraved indifference murder conviction is appropriate where an actor shoots his victim at point-blank range but the jury acquits on an intentional murder charge. Current New York cases maintain that depraved indifference is inappropriate because intentional killings cannot be depraved heart killings.5 But this conclusion is certainly incorrect. A person who shoots at point-blank range with no good reason has surely manifested extreme indifference to human life. Intentional killings are just one (typical) species of such indifference.

Normatively, there is no reason to restrict punishment to instances of risking with the intent to bring about the harm risked. If the actor consciously disregards an unjustifiable risk of harm, her action is culpable even if she does not want that harm to occur. Indeed, given an actor’s reasons for acting, her “reckless attempt” may be more culpable than another actor’s “intentional attempt.”

Or, consider complicity. When Iago taunts Othello, he may not wish for Desdemona to die. Instead, Iago may believe it sufficient to mentally torture Othello. But when Othello kills Desdemona, Iago is to blame for this action. His conduct – lying about Desdemona’s infidelity – created an unjustifiable risk that Othello would kill his wife. We see no reason why Iago should escape liability because Desdemona’s death was not within the scope of his intention.6

Indeed, although ordinary language and lay intuitions may be useful, they cannot be the last word on drafting criminal codes. Even if, as a matter of semantics, an actor cannot “attempt” a reckless homicide because one cannot intentionally commit an unintentional act, we may alternatively label the reckless actor’s conduct “endangerment”;7 but, labels aside, the only distinction then between the “attempt” and the “endangerment” is the actor’s reason for imposing the risk. We see

5See, e.g., People v. Payne, 819 N.E.2d 634 (N.Y. 2004); People v. Suarez, 844 N.E.2d 721 (N.Y. 2005).

6See Larry Alexander and Kimberly D. Kessler, “Mens Rea and Inchoate Crimes,” 87 J. Crim. L. & Criminology 1138 (1997); Sanford H. Kadish, “Reckless Complicity,” 87 J. Crim. L & Criminology 369 (1997).

7 See generally R. A. Duff, “Criminalizing Endangerment,” 65 La. L. Rev. 941, 960–961 (2005).