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an innocent. That is so, we believe, because one cannot understand whom one is punishing without recognizing that one is punishing this innocent actor. Accordingly, if one intends to punish a person whom one knows to be innocent, one is violating the deontological constraint even if it is formulated as a constraint on what one does intentionally.

Although we do not resolve this problem here for the retributivistdeontologist, erring on the side of caution, we do endorse a standardsbased view here. As we have said, whether recognized or not, our criminal law is currently chock full of standards. Every recklessness calculation entails an unguided balancing of the actor’s reasons and the risks she has created. Of all the problems that currently exist within the criminal law, implementing and understanding recklessness would not make it into the top one hundred.

4. An Empirical Experiment

One likely objection to our proposal is that it is not practically workable. We will not be able to sell it. Converting criminal law rules into mushy standards will cause widespread public outrage. It is, some might claim, the end of the world as we know it.

Well, we feel fine. At the outset, we doubt that this change is as monumental as it first appears. As noted previously, many, many, many criminal law “rules” contain standards.

However, there are cases in which a switch from rules to standards might seem more profound. One might imagine speed limits to be such a case. In this section, we explore the “real” possibility of a standardsbased speed limit.

Now, initially, we should note that we find driving to be a particularly tricky question. After all, if Heidi decides to attend a conference on “Intention” in Death Valley, California, that requires her to drive two hours, does her increase in knowledge justify the life and limb that she endangers on the road? If she had to internalize that activity cost, would she even drive?121 It seems that driving has become part of the American identity, and no campaign for public transportation seems likely to change that. Our decision to drive, our choice of cars, and so forth has become as self-defining as our choice of sexual partners or whether to

121 Cf. Steven Shavell, “Strict Liability versus Negligence,” 9 J. Legal. Stud. 1 (1986).

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procreate.122 Thus, it seems that driving, even for trivial or slightly important reasons, may be more “justifiable” than would otherwise appear.

But back to the empirical question. What would happen if we deleted speed limits and just required actors not to take unjustifiable risks? Well, for a few years, Montana did just that. In 1999, Robert King and Cass Sunstein investigated the effect of this law.123 From 1955 to 1974, Montana had a law that required citizens to drive in a “careful and prudent manner,” at a reasonable rate of speed, taking into account the traffic, condition of the vehicle, condition of the roadway, and visibility conditions.124 In 1974 Congress imposed a mandatory speed limit of 55 m.p.h.125 Montanans implemented the requirement in name only, ticketing violators only five dollars.126 With the enactment of the National Highway System Designation Act, Montana once again had control over the regulation of its highways.127 And, on December 9, 1995, Montana’s standard of reasonable and prudent driving once again became law.128

According to King and Sunstein, the effects of Montana’s action varied. First, the change from rules to a standard did not significantly alter driving behavior.129 The authors attribute this lack of change to the treacherous road conditions in Montana – drivers ultimately had to do what was safe because that was in their own self-interest. The authors did find, however, that Montana became a destination for “speed tourists,” those who came to Montana just so they could drive fast.130 According to King and Sunstein, this led to some coordination problems because in-state and out-of-state drivers had different norms.131 In our view, however, this gap is better viewed as one between Montanans, who understood that the standard was still law, and out-of-state drivers who thought that no speed limit was equivalent to no regulation. The fatality figures were inconclusive, suggesting a possible increase in unsafe driving by

122Cf. Lawrence v. Texas, 539 U.S. 558 (2003); Griswold v. Connecticut, 381 U.S. 579 (1965).

123See Robert E. King and Cass R. Sunstein, Essay, “Doing without Speed Limits,” 79 B.U. L. Rev. 155 (1999).

124Id. at 158.

125Id. at 158–159.

126Id. at 159.

127Id. at 161.

128Id. at 162.

129Id. at 161–162.

130Id. at 164.

131Id. at 167.

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1997, but, according to the authors, it is hard to draw this conclusion, given that fatality figures typically fluctuate year-to-year.132

The most significant problem with the law was its effect on law enforcement. There were administrative costs. Police officers had to debate with motorists whether the motorists deserved their tickets.133 More motorists went to trial.134

Additionally, there was doubt as to what type of driving the standard required. The requirement seemed “subjective,”135 as different police officers believed different speeds were dangerous. Moreover, judges did not always agree with police officer’s ticketing practices, causing officers to feel that dangerous drivers were being set loose onto the streets.136 King and Sunstein concluded:

The cause of the “standards” problem emanates not only from the law’s vagueness, but also from patrolmen’s and judges’ variable interpretations of the Basic Rule’s expressed “reasonable and prudent” standards. Those officers and judges who establish their own, perhaps idiosyncratic, numerical limits and uniformly stop or convict defendants under fi xed guidelines might be thought to endanger both the spirit and the letter of the Basic Rule, in turn creating an uncertain patchwork of rule-free and rule-bound law enforcement.137

The experiment in standards-based speed limits ended in 1998, when the Montana Supreme Court held that the standard was unconstitutionally vague.138 During oral argument, the Montana Supreme Court was particularly troubled that the attorney general could not articulate any speed at which it was permissible to drive.139 The court claimed the result was not just the allowance but the requirement that law enforcement act arbitrarily and discriminatorily.140

132Id. at 170–171.

133Id. at 179.

134Id. at 180.

135Id. at 181.

136Id. at 182.

137Id. at 184.

138Id. at 188; State v. Stanko, 974 P.2d 1132 (Mont. 1998).

139Stanko, 974 P.2d at 1137.

140Id.

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Interestingly, the court claimed that there were just too many factors for any individual to calculate and no guidance as to how much each factor should be weighted.141 But the conclusion that follows is quite limited – Montanans cannot be punished for “speed alone” without notifying them about the appropriate speed.142 We doubt, however, that the court would have reached the same view if the driver who had the prudent driving standard declared unconstitutional had killed another person and had been prosecuted for manslaughter. Indeed, we need not guess about this: the Montana Supreme Court upheld the constitutionality of punishing Stanko for reckless driving.143

What conclusions should we draw from this experiment? Well, let us note its limitation. What works for Montanans might not work for Californians, and certainly not for New Yorkers. Montana is a thinly populated state, with vast stretches of highway, and a particularly libertarian population.144

Still, it seems to us that the sense that speed limits are the paradigm of a necessary rule is completely unfounded. Montanans were not driving any faster with the standard than with specific speed limits. Indeed, the difference in discretion – between Montana’s standard and the typical rule – may be illusory.145 After all, speed limits are rarely enforced exactly. Rather, every driver knows that going some indeterminate amount above the speed limit may be permissible, and this amount varies from highway to highway, of f ceri to officer. The critical question is whether actors and enforcers need guidance, but, as we address in the next section, there may be ways to give guidance without enacting rules.

We do not wish to deny the problems with standards. Their failure to provide the guidance of rules and to settle determinately what ought to be done creates problems ex ante and ex post. Ex ante, actors may be chilled from taking justifiable risks. Alternatively, they may take risks that they believe are justifiable but that are not, or risks that they know

141Id. at 1138.

142Id.

143Id. at 1139.

144King and Sunstein, supra note 123, at 157 and 177.

145Husak, Overcriminalization, supra note 3, at 27 (making the point that discretion of this sort is incompatible with the rule of law).