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Two of us have of fered somewhat competing conceptions of such a formulation.31 We do not attempt to reconcile them here.

B. CALCULATING CULPABILITY

1. Some Preliminaries

The first task in drafting a criminal code is to identify the types of harms that the criminal law wishes to avert through its prohibitions and to construct a hierarchy (or hierarchy range) of these interests. Although initially one might suspect that there will be widespread disagreement over the ordinal rankings, empirical studies do not bear this out. Rather, in Paul Robinson and Robert Kurzban’s recent empirical study, they found widespread agreement as to the rank order of twenty-four short scenarios that encompassed 94.9 percent of the crimes committed in the United States.32 In contrast, there was less agreement (although still some considerable concordance) regarding the “offenses of drunk driving, prostitution, marijuana purchase, purchase of alcohol for use by teenagers, bestiality, late-term abortion, cocaine purchase, date rape, third felony offense (jewelry grab), large-scale cocaine selling, and very large-scale cocaine importation and distribution.”33 We note that in many of these latter, more controversial, cases, the difficulty arises precisely because the offense is not tied directly to, and clearly articulated as threatening, an interest worthy of legal protection.

Our code also requires a decision regarding how many categories the code should contain. Harms, reasons, capacity – all of these can be placed on continua from more to less serious, more evil to less evil to praiseworthy, greater to lesser – with the result that the culpability level

31Larry Alexander, “The Moral Magic of Consent (II),” 2 Legal Theory 165 (1996); Kimberly Kessler Ferzan, “Clarifying Consent: Peter Westen’s The Logic of Consent,” 25 Law & Phil. 193 (2006).

32Paul H. Robinson and Robert Kurzban, “Concordance and Conflict in Intuitions of Justice,” 91 Minn. L. Rev. 1829 (2007). “The scenarios included such offenses as theft by taking, theft by fraud, property destruction, assault, burglary, robbery, kidnapping, rape, negligent homicide, manslaughter, murder, and torture, in a variety of situations, including self-defense, provocation, duress, mistake and mental illness.”

33Id. at 45.

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that they determine will also be on a continuum. And even if, from a God’s-eye perspective, they could be perfectly placed on their continua, any criminal code will have to yield to epistemic considerations. Although we deal with most of the real world practicalities later in this chapter, we must address here the question of how individualized culpability should be.

For instance, in looking at legally protected interests, we could have a scalar system that allows juries to distinguish between even two ever- so-slightly different types of serious mayhem, or we could group all types of mayhem into one category of “risking substantial harm.”34 The arguments for more and fewer categories are well known. If we have fewer categories, we will make fewer mistakes in assigning conduct to a category;35 but if we have more categories, we will make more mistakes, but the consequences of each mistake will be smaller.

Several different factors determine overall culpability, but for each factor we make only a handful of distinctions here. We are not opposed to the addition of more distinctions or to allowing juries to make finer gradations than the distinctions we make. We also provide for a sentencing “safety valve” determination by the judge.

2. A First Attempt

Our criminal code is quite complex and requires a calculation based upon a series of decisions by the jury. There seems to be something cold and impartial about this calculation, and we do not mean the kind of impartiality with which we want juries to act. Rather, there seems to be something amiss with reducing crime to numbers.

For this reason, we advocate a two-part system. The jury will first be asked to render a general verdict that the defendant was culpable. (Even

34As one of us has argued, “Suppose a defendant charged with aggravated battery or mayhem permanently disfigured his victim by inflicting a facial wound with a knife with the intent to cause a permanently disfiguring injury. The wound might require an extremely broad range of number of stitches to close. The lengthier the wound, the more disfigurement will result. Should a punishment be inflicted proportionate to wound length or number of stitches? . . . I suggest that a principled, consistently applicable fine-grained retributive response in such cases would be impossible. We lack the moral and epistemic resources to use more than a few rough categories to individuate.” Stephen J. Morse, “Equality and Individuation in Punishment,” Law & Phil (forthcoming).

35Id.

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this determination requires a series of instructions, a sample of which we have set forth in the Appendix.) Only after this threshold standard is satisfied would a jury be asked to make the fine-grained calculations set forth here. Moreover, if the jury, after calculating, determined that the actor was not culpable, the actor would then be acquitted. A guilty verdict would thus require both an abstract moral decision and a more nuanced accounting of the actor’s culpability.

In making this second determination, we need a more complex code. The primary function of this latter part of our code, with all the intricacies we now explore, is to guide a jury’s determination regarding the amount of punishment the actor deserves.

A useful starting point for developing our framework is the United States Sentencing Guidelines Manual (USSG). Here is a brief summary of how the USSG works. The actor’s sentence is determined by a matrix – on one axis is the actor’s offense level and on the other axis is the actor’s criminal history. The point at which the actor’s offense level and criminal history intersect locates the sentencing range.

The calculation begins with the offense level. For any given federal offense, the USSG provides a base offense level. For instance, for attempted murder, the base offense level is 33 if the object of the offense would have constituted first-degree murder, and otherwise, it is 27.36 From here, the USSG may provide for specific offense characteristics to increase the offense level. Under the attempted murder provision, if the victim sustains permanent or life-threatening injury, the offense level is increased by four; if the victim sustains serious bodily injury, the level is increased by two; and if the injury lies between the two types, there is a three-level increase.37 If the actor was paid to commit the offense, there is a four-level increase.38

More additions and subtractions may be made. For instance, if the actor was the organizer of the criminal activity, his offense level may be increased by four.39 If the actor accepted responsibility for his offense, he may be entitled to a twoor three-level decrease.40 The USSG then

36See U.S. Sentencing Guidelines Manual § 2A2.1 (2005).

37Id.

38Id.

39Id. at § 3B1.1.

40Id. at §3E1.1.

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has a series of provisions that determine the actor’s criminal history level, and his punishment may be increased based upon the number and type of prior convictions.41

We use the USSG only as a starting point. We recognize that some of the criminal acts it includes may impose risks of several different harms that need to be separately articulated.42 For instance, the crime of arson is both a crime of property damage – the severity of which turns on the value of the property – and a crime that also often risks serious bodily injury or death to other people. “Relevant factors” under the USSG may also need to be translated into facts that we believe are material in order to be incorporated into our code. For instance, the USSG often provide for an increase for the use of certain dangerous weapons. In our view, however, the particular weapon used is irrelevant except to the extent that it increases the risk or increases the risk’s duration.

Our code also needs illustrations and definitions. Although we later turn to how a definition or commentary section will often be a better guide for the judge and the jury than the alternative of a proxy crime, here we simply note that we recognize that terms that we employ such as “serious” and “less serious” are seriously in need of more precise definition.

We are also well aware of the multitude of problems with the USSG. For instance, the USSG allows a variety of (sometimes competing) factors to determine the offender’s ultimate sentence. It also allows factors that we would consider irrelevant – for example, the amount of harm actually caused – to determine the offender’s sentence.

a. Valuing Legally Protected Interests: The jury will have to determine which harms the actor’s conduct risked. The criminal code should predetermine the relative value of these legally protected interests. That is, we do not believe that each individual jury should determine the value of an individual life (although it will do so implicitly by determining whether the actor acted culpably in risking such a life). Rather, questions

41Id. at ch. 4.

42T his is no easy task. For an attempt to peel away the layers of different property offenses, see A. P. Simester and G. R . Sullivan, “On the Nature and Rationale of Property Offenses,” in Defining Crimes: Essays on the Special Part of the Criminal Law (R. A. Duff and Stuart Green, eds., 2005).

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about how serious unconsented-to intercourse is, or the killing of a fetus, or littering on a public highway, are all decisions that should be made ex ante.

Applying the USSG model to our theory of culpability, we might start with base offense levels like those set forth by the USSG:

Death	43
Unlawful restraint, autonomy deprivation	32
Unconsented-to sexual intercourse	30
Harm to government functions (currently bribery
and perjury)	14
Serious bodily injury	14
Minor bodily injury	4

Interestingly, threats to property can become quite serious under the USSG – surpassing even rape – when the amount of the theft is very substantial. That is, while theft’s base offense level is only a six, the loss table provides:

$5,000 or less	No increase
More than $5,000	Add 2
More than $10,000	Add 4
. . . .
More than $100,000,000	Add 26
More than $200,000,000	Add 28
More than $400,000,000	Add 30

We should note that in our view, these levels are better understood as negative numbers (corresponding to negative desert) – the greater the harm, the more negative the number should be.

These numbers are for illustrative purposes only. We recognize that even the numeric rankings provided by the USSG are not the product of any sort of reliable methodology or analysis.43 Although our code would

43See “Dissenting View of Commissioner Paul H. Robinson to the Promulgation of Sentencing Guidelines by the United States Sentencing Commission,” 52 Fed. Reg. 18121– 18132 (1987).

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require a normative theory for the relative weights of various legally protected interests, the USSG provides a useful illustration of how our code would work.

b. Discounting the Harms: After a jury determines which legally protected interests the actor believed himself to be risking, the jury will need to discount these interests by the actor’s belief as to the magnitudes of the various risks he was imposing. These magnitudes might range from virtual certainty (95 percent or above), to high risk (95–60 percent), to risk (40–60 percent), to low risk (20–40 percent), to very low risk (5–20 percent), to virtually no risk (less than 5 percent). Once again, we must ask how many categories there should be. Should the jury discount all “low risks” by 30 percent, the midpoint of the range, or should it attempt to estimate the exact probability?

Here, some empirical work would be useful. We need to know the extent to which people actually think in numeric probabilities. We (from our arm-chair perspective) think it rather unlikely. Thus, we would tend to err on the side of using set discounts for each level of certainty: if “virtually certain,” discount by 5 percent; if “high risk,” discount by 25 percent; if “risk,” discount by 50 percent; if “low risk,” discount by 75 percent; if “virtually no risk,” discount by 95 percent.

Let us work through this calculation with a case of arson. The jury might find that the actor set fire to a building, believing it virtually certain the building would burn down, and believing there to be some risk of death. Calculating the actor’s culpability would require taking a base level for risking harm to property, say −15, and discounting it 5 percent to arrive at a culpability level of −14.25.

The risk of death to others might be a bit trickier. Any given actor may aggregate or disaggregate the risk across multiple persons. An actor might believe that his act imposes a high risk on one (particular) person. On the other hand, he may believe that his action imposes a less significant risk but to more than one person. So, for example, our arsonist may believe that his incendiary device will certainly work and that therefore he will certainly kill the one person inside. Or our arsonist may believe that there is only a 50 percent chance that his incendiary device will work but also believe that if it does work he will certainly kill the two people inside. As a matter of mathematics, the risk of net one death is the same

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in both cases. Moreover, as a matter of culpability, we likewise believe that these cases are morally the same. In either arson example, then, whether the actor believes one death is virtually certain or two deaths are each risked 50 percent, we would take the base level for death (−43), and discount it by 5 percent (the discount for belief to a virtual certainty that the harm would occur), with a resulting total of −40.85.

c. Duration: We must next take into account the duration of the risk as the actor perceived it. Our code will need to break duration into workable increments. Our recommendation is that the increment be rather small – two minutes – but if one considers how many voluntary acts one can commit in two minutes, two minutes seems quite generous to defendants. We propose that for every additional two minutes, the offense level be multiplied by the number of two-minute increments for which the risk continued. Thus, if an episode of reckless driving or battery is twenty minutes long, its base culpability level will be multiplied by a factor of ten.

Here, however, we will need a provision to avoid overpunishing someone who is imposing multiple risks, all of which are accomplished within two minutes. This approach does create a “volume discount” for someone who fires at his victim five times within a two-minute period. Unfortunately, in the real world of rough categories, this result may be unavoidable. (On the other hand, one who fires more often – say, with an automatic weapon – may believe the risk he is imposing is higher than one who fires once.)

To illustrate, assume that Alex commits rape by using (extraordinarily and unimaginable) long thrusts, each of which takes two minutes. He commits 3 willed bodily movements in a six-minute rape. On the other hand, Bob’s six-minute rape includes 200 thrusts, each of which occurs for less than two seconds. Then, although Alex and Bob both committed rape, and both did so for six minutes, Alex’s willed bodily movements will count only for 3 (with no multiplier because each thrust took no more than two minutes), whereas Bob’s same risk imposition will be multiplied by 200 because each bodily movement is calculated separately. Thus, we will need some sort of grouping mechanism, so that if the actor imposes multiple risks for unjustifiable reasons, through several separate willed bodily movements, these risk impositions can be grouped together to count as only one risk imposition if they all

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“occur within” the two-minute interval.44 In other words, although our approach may be a bit underinclusive in allowing for some volume discounts, it will not, at the very least, be overinclusive in grossly overestimating the actor’s culpability.

Now back to the arson example. For our purposes, we will assume that the risks to life and property were of equivalent duration and that the risk lasted for twenty minutes. Multiplying the discounted risk of each by nine, and then adding them yields a total of –551.

d. Quality of Contemplation: Another factor to be considered is the quality of the actor’s deliberation. As we argued earlier, an actor with diminished rationality is less culpable than an otherwise equivalent actor with normal ability. And an actor who plans his culpable actions long and well may be more culpable than the average actor.

There are different methods for accounting for this aggravating or mitigating factor. Once again, we might select some gross categories: substantial impairment (reduce by 75 percent); moderate impairment (reduce by 25 percent); no impairment (no change); better than average deliberation (increase by 25 percent); and excellent deliberation (increase by 50 percent). Of course, in our view, the underlying morality is a continuum; however, blunter categories may be practically necessary.

Unlike the USSG, which allows for only slight reductions for calculations such as “more than minimal planning,” we give this qualitative component a substantial role in aggravating or mitigating the actor’s culpability. If the choice made by the actor is the critical component of the actor’s manifestation of insufficient concern, then we must look at the quality of the actor’s decision making. To be sure, sometimes a rash decision will reflect indifference – but this indifference will be fully accounted for by weighing the risks and reasons. We believe, though, that if we hold risks and reasons constant, an actor who has more time to reflect and still chooses to risk harming another manifests insufficient concern to a greater extent than someone who acts without that opportunity. On the other hand, someone whose rationality is impaired – for

44Cf. U.S. Sentencing Guidelines Manual § 3D1.2 (groups of closely related counts). Unlike the USSG, we are not discounting crimes because different criminal acts are “closely related”; our grouping is simply temporal and thus requires no normative or conceptual judgments.

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whatever reason – is not making a choice that reveals the same degree of indifference.

Taking into account this last factor, all of these calculations would yield an “offense level” or, more aptly, a “risk level.” This level takes into account the risks the actor perceived himself to be creating, his estimate of their probabilities, his degree of contemplation, and the duration that he believed each risk would last. This would yield a series of numbers on one axis of our matrix. If we assume that our arsonist engaged in no more than typical thought, his risk level would remain –495.9.

e.Weighing the Reasons: The other axis of our matrix will be based upon the actor’s reasons for action. For instance, the jury should consider whether the actor’s reasons were evil, substantially enhancing the actor’s culpability; antisocial, enhancing the actor’s culpability; trivial, leaving the actor’s culpability unaffected; decent, reducing the culpability substantially, but insufficient to justify the act; or weighty enough to justify or require the act socially (justification) or personally (excuse).

Here, too, these reasons will have to be spelled out more elaborately. We are not able here to list all of the reasons that would fall into each category. We leave that for future theorists. However, as one illustration, consider the suggestion by Samuel Pillsbury that premeditation be replaced by aggravated murder where the motives to kill are particularly egregious. Listing these motives from, what is in his view, least to most controversial, Pillsbury enumerates killings (1) for profit, (2) to further a criminal endeavor, (3) to affect public policy or legal processes,

(4) out of group animus, and (5) to assert cruel power over another.45 We do not evaluate Pillsbury’s enterprise here. We believe it is sufficient to show that thoughtful theorists (and hopefully thoughtful legislators) will be able to further articulate the types of reasons that fall within each category.

f.Determining the Sentence: Finally, the actor’s sentencing range would be set forth in the matrix. One axis would specify the “risk level,” and the other axis would specify the reasons level. The points at which a risk

45Samuel H. Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter 113–117 (1998).

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level meets a reasons level would contain a sentencing range. For many matches, the matrix would provide for no liability because the reasons would outweigh the risks. There would also be a gray area (providing for limited incarceration, if any) in which a jury could determine whether the actor’s behavior represented a gross deviation from that of a reasonable person and thus merited punishment.

A judge would ultimately impose a sentence within the range the matrix provides. Here, we think it would be appropriate to allow the judge to also consider whether there are any desert criteria (the factors discussed previously) that were not adequately taken into account in the jury’s calculation. Although a judge would be permitted only to depart downward,46 she could do so whenever she believed that the metrics provided failed adequately to account for the actor’s culpability. (Such decisions would then be subject to an abuse of discretion review.) Our code would also allow a judge to decrease the sentence based upon appropriate nondesert considerations, such as cooperation with the government. (The extent to which our code will have to deal with such practicalities of the real world is something we address later in the chapter.)

g. Two Complications: First, does the culpability of one whose purpose is to cause harm vary with the perceived risk? We raised this issue in Chapter 2 in our discussion of how the mens rea of “purpose” could be subsumed by recklessness. One objection to our position was that no matter how small the perceived risk of harm, the actor who imposes that risk for the purpose of causing the harm risked is always more culpable than the actor who consciously imposes a much greater risk of the same harm but who does so for some reason other than to produce that harm. We rejected that position. We believe that the culpability of the second actor can equal or exceed that of the first. If we are wrong, however, then, if the actor imposes a risk in order to bring about the harm risked, his culpability will be equivalent to that of one who believes to a certainty that he will bring about the harm and whose purpose is to do so – no matter what risk of harm he actually believes he is imposing.

46T he structure of our code combined with current Supreme Court precedent would prevent a judge from constitutionally departing upward. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005).

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Second, how should the culpability of one who violates a deontological constraint be determined? A more serious problem, and one to which we also alluded in Chapter 2, is calculating the culpability of one who imposes a risk that is consequentially justifiable but that violates a deontological constraint. We said, for example, that in Trolley, one who switches the trolley to save five but who will kill one acts justifiably; however, one who pushes someone into the trolley’s path to save five does not do so because, in saving net four lives, he violates a deontological constraint against using people as means.

But just how culpable is this second actor? He acts for a noble end (saving lives). He is surely less culpable than an actor who pushes someone into the path of the trolley out of hatred or avarice and unaware that he is saving five lives.

There are two fairly well-known problems associated with deontological constraints. One is the so-called paradox of deontological rights: one cannot violate deontological constraints even to minimize the number of violations of those constraints.47 The other is the problem of “threshold deontology,” a problem faced by anyone who believes that deontological constraints give way if the consequences of abiding by them are bad enough (or the consequences of violating them are good enough).48

The problem of culpability that we are pointing to here is a third distinct problem, though it has a structure much like the problem of threshold deontology. If the culpability of a violator of deontological constraints declines as the expected gains from the violation increase, then the problem is to identify and explain the threshold at which he ceases to be culpable and starts being admirable. If the culpability of the violation is invariant, on the other hand, then the culpability of one who pinches another (without consent) to save a million lives is identical to that of one who pinches another just for the heck of it – a quite counterintuitive result. We offer no solution to this puzzle for those, like us, who believe in deontological constraints. Clearly, however, it is a puzzle that must be resolved in a retributive system.

47T his paradox is discussed in Larry Alexander and Michael S. Moore, “Deontological Ethics,” Stan. Encyc. Phil. (November 21, 2007), available at http://plato.stanford.edu/ entries/ethics-deontological/.

48For a discussion of the theoretical problems faced by threshold deontology, see Larry Alexander, “Deontology at the Threshold,” 37 San Diego L. Rev. 893 (2000).