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are unjustified but that, given the inevitable vagueness of standards, they believe they can convince prosecutors or juries were justified. Ex post, prosecutors and juries will have more difficulty applying standards than applying rules, leading to the possibility of either too many prosecutions and convictions or too few.

Despite these considerations, we stand by the preference for standards. Although we believe that there may be times that rules (“proxy crimes”) are in fact necessary, we believe those cases are few and far between. Criminal law as it stands is a standards-based world. And even those situations that appear to require rules, such as speed limits, may not in fact require them.

C. INEVITABLE PROXY CRIMES

Despite our defense of standards over rules, we recognize that there may be cases in which a legislature chooses to reject our arguments. Indeed, according to Carol Rose, the fluctuation between “crystals” (rules) and “mud” (standards) is simply inevitable.146 Rather than dismissing these enactments of proxy crimes as possibly immoral, we believe that it may be better to “get real” and give some guidance to legislatures about how and when proxy crimes should be enacted.

1. Recognizing the Alternatives

The first question is whether there is some sort of halfway house between a broad standard and an overinclusive rule. We wish to introduce four methods for getting the benefits of rules in a standards-based system.

The first method for achieving rulelike precision in a standardsbased world is to move beyond the criminal law. The government has a tremendous array of resources that stop short of the criminal sanction. To the extent the war against drunk driving has been successful, it has not been so solely because of enforcement; it has also achieved success by changing the social norms. It is simply no longer acceptable to the degree that it once was to drink and to drive. Indeed, the government’s ability to create and to reinforce social norms will also indirectly achieve

146 See Carol M. Rose, “Crystals and Mud in Property Law,” 40 Stan. L. Rev. 577 (1988).

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the benefits sought by the criminal law. If public service announcements make clear the risks inherent in any given activity, any given actor will be (1) less likely to minimize the risk and (2) less able to justify the risk he recognizes.

A second method is to allow a legislature to place “commentaries” within the criminal code.147 T his would allow the legislature to elaborate on when a harm is “serious,” or to specify when a particular reason for acting is “evil” as opposed to “antisocial.” The commentaries could also inform citizens that certain “personal considerations” may be valued, such as the liberty interests we all enjoy by driving instead of using public transportation, biking, or walking. These commentaries, when applicable, could also be read to juries. A significant benefit of these commentaries is that they can serve to counteract the possibility of overdeterrence. The commentaries can inform both actors and juries that certain conduct is presumptively acceptable, thus giving actors guidance that, for example, driving at fifty-five miles an hour is generally safe driving in the absence of extenuating conditions.

Another key advantage of the use of commentaries is that they require the legislature to “fit” their commentaries within our framework. This prevents any given legislature from disrupting an entire statutory scheme by introducing new terminology or providing too harsh a punishment for one type of conduct relative to the rest of the statutory scheme. It allows legislatures to achieve some degree of specificity without creating the gap inherent in rules – the norm is still a standard, not a rule – but the commentary provides guidance and structure for decision making.

A third method also seeks to strike a balance between providing the determinacy of clear rules and providing the justice of standards. Legislatures could specify legally protected interests but insist upon a mental state of recklessness as to those interests. A crime that specifies a legally protected interest and requires the mental state of recklessness (as we have refined it) will simply be an instance of insufficient concern.

147See Paul H. Robinson and Michael T. Cahill, “The Accelerating Degradation of Criminal Codes,” 56 Hastings L.J. 633, 654–655 (2005) (proposing this alternative to criminal legislation and reporting that during the authors’ work revising the Kentucky criminal code such a proposal was met with considerable support).

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It will not be an imperfect approximation. That is, if the law states that it is criminal to “recklessly create a risk of death,” this crime is merely a specific instance of the more global prohibition on risking harm, an instance where the type of legally protected interest is specified.

The enactment of these types of crimes, which are delineated simply by the type of legally protected interest, are not overinclusive. However, they are problematic to the extent that they raise the question of when multiple crimes may be charged for the same conduct. That is, they have the potential to resurrect the problems inherent in our current system of individuating offenses. What these “proxies” do not do, though, is create overinclusive crimes.

Finally, the legislature could consider using presumptions. For instance, in defining murder as “extreme indifference to human life,” the Model Penal Code further clarifies that this indifference is presumed when the actor is taking part in one of several enumerated felonies.148 Likewise, it could be “presumed” that one is driving recklessly if one’s blood alcohol level is above a certain percentage, in contrast to making such driving per se criminal. If the use of a presumption is only permissive – for example, one that allows the jury to infer extreme indifference from participation in what is now a discrete felony – then such a presumption would function in the same way that code commentaries would.

Could a jurisdiction go beyond permissive presumptions and employ a mandatory rebuttable presumption, and would such a presumption be constitutional? A mandatory rebuttable presumption would state a rule, but would permit the actor to show, by some burden of proof, that the underlying justification for the rule did not apply. Given that an actor who then violates the rule would have to have good reason – that is, show that she was epistemically privileged or the like – there is some merit in such a rebuttable rule. Such an approach is also better than just enacting an irrebuttable rule, one that would completely bar the actor from showing that she does not fall within the rule’s justification.149

148Model Penal Code § 210.2 (1985).

149See Paul H. Robinson and Michael T. Cahill, Law without Justice: Why Criminal Law Doesn’t Give People What T hey Deserve 205–209 (2006) (advocating burden shifting approaches).

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One substantial hurdle to such a burden-shifting approach is the current state of constitutional law. Because the presumption would undoubtedly apply to an element of our offense (we have no defenses per se), such a presumption violates the requirement that the government prove every element beyond a reasonable doubt.150 Ironically, although such an approach would create greater fairness, it is unconstitutional. In contrast, a rule that is simply overinclusive – without any ability to rebut its applicability – would undoubtedly pass constitutional muster.151

2. Enacting Proxy Crimes

In translating our idealized code into a practical one, we recognize that a legislature might wish to enact “proxy crimes.” A proxy crime is a particular instance of conduct, commission of which risks harming a legally protected interest. But because there is only a risk of harming a legally protected interest, proxy crimes may be overinclusive. That is, they may sweep in the nonculpable actors along with the culpable.

Not all proxy crimes are alike. Although some may be (potentially) justifiable, others may not be. We begin with the latter first.

Unlike proxy crimes that are created because of the inability to craft a standard so as to give sufficient guidance to individual actors, some proxy crimes are created for the benefit of law enforcement. For example, we argued in Chapter 6 that an actor has not committed a culpable act until she has unleashed a risk of harm over which she no longer has control. So, a would-be house thief has not committed attempted theft at the point at which she cases the house or purchases tools for the upcoming act. However, to stop some crimes early, while simultaneously claiming to distinguish between “mere preparation” and “dangerous proximity,” the criminal law has created proxy crimes, such as possession of burglar’s tools. The possession of such tools, however, does not risk harm in and of itself. Rather, it is an early act in the chain of acts leading ultimately to the entry and commission of some fully consummated crime, if, that is, we assume that committing a crime is the reason for possessing the tools.152

150See Sandstrom v. Montana, 442 U.S. 510 (1979).

151See Robinson and Cahill, supra note 149, at 208–209 (noting this difficulty).

152See Moore, supra note 16, at 784 (“The problem with . . . ‘wrongs by proxy’ is that [they] give liberty a strong kick in the teeth right at the start. Such an argument does not even

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We do not believe that these acts should be criminalized, unless, of course, they are committed for the purpose of a later risk imposition and culpably risk causing fear of that future act. It is true that, given such a law, and assuming that our would-be burglar knows the law and chooses to possess the tools, then we are not punishing her on the basis of a prediction of what she might do but for something that she has done. However, the underlying moral justifiability of this law hinges on the creation of a risk to a legally protected interest over which the defendant no longer has control. The act of possessing burglar tools does not in itself create such a risk because the would-be burglar still controls whether the risk will be imposed – that is, whether she will burgle. Therefore, the legislature should not criminalize such conduct.

The same analysis also applies to any crime created because of practical enforcement concerns. Strict liability generally and felony murder specifically have been justified because of the need to “ease the prosecutorial burden.” We see no reason to ease the burden such that an actor who creates no unjustified risk of harm to any legally protected interest may be criminally punished despite having done nothing culpable.153

We believe the proxy crimes that a legislature is justified in enacting are precisely those crimes that give actors significant epistemic guidance. In particular, these rules may be justified in circumstances where agents are particularly prone to rationality errors.154

One area in which we may find “proxies” to be necessary is where there are questions of maturity and capacity. For instance, at some point, a teenage girl becomes sufficiently rational to consent to sexual intercourse. But this point varies from girl to girl. Here, miscalculations may occur on both sides of the equation – some fifteen-year-olds are sufficiently mature that they should be able to determine for themselves whether to consent to intercourse, but many may not be. The putative defendant, who has every incentive to want to believe that his future partner is competent, may not adequately take opposing information

pretend that there is any culpability or wrongdoing for which it would urge punishment; rather, punishment of a non-wrongful, non-culpable action is used for purely preventive ends”).

153Id. at 784 (noting this is just an evasion of the requirement that the government must prove every element beyond a reasonable doubt).

154Husak, Overcriminalization, supra note 3, at 38–39.

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into account. Because we know that these mistakes are bound to happen, a nice clear cut-off point – a set age restriction – gives epistemic guidance to actors who may greatly need it.

Clearly, under these conditions, the criminal law should require recklessness as to this new material element. Indeed, because age is a mere proxy for consent, and we wish to punish only those actors who risk having unconsented-to intercourse, it would make no sense whatsoever to punish the actor who honestly believes the victim was at the appropriate age (and also consenting).

Of course, allowing for any proxy crimes returns us to where we began. What should we do with a person who does not culpably risk the harm but who does violate the proxy crime?155 We advocate a modified rule-sensitive particularist view. If the actor does not risk harm to a legally protected interest, the question is whether he has still shown sufficient respect for the “rule of law.” Here, the jury could be asked whether the actor, knowing that he was violating the law (the proxy crime), (1) gave sufficient weight in his justifying reasons to the chance that he might be wrong about the girl’s capacity to consent, and thus, enough weight to the risk of epistemic error, and (2) gave suf fcient weight to the value of having rules decide these cases for all citizens (i.e., to the risk that he is undermining the moral message of the law). If taking these values into account, his action was still justified – for example, in this particular case, he had excellent reasons to believe the girl had the capacity to consent – then he is not culpable for violating the proxy crime. On the other hand, if he is epistemically arrogant without good reason – she was very mature and gave valid consent, but he had no good reason to believe this – then he may be punished for his failure to show sufficient respect to rule-of-law values.

Of course, this does not completely resolve the problem. The actor may honestly believe that the woman (girl?) with whom he is about to

155Antony Duff favors punishing these individuals because they manifest “civic arrogance.” One might also say “epistemic arrogance.” R. A. Duff, “Crime, Prohibition, and Punishment,” 19 J. Applied Phil. 97 (2002). But Duff ’s view – that we should punish actors because they do not know the rule does not apply – simply ignores the fact that in some cases actors know exactly this fact. Moreover, Duff cannot explain why this arrogance leads to punishment for the underlying offense instead of the arrogance itself. See also Husak, Overcriminalization, supra note 3, at 107–112 (critiquing Duff ’s approach).

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have intercourse is sufficiently mature to consent, no matter what the statutory required age. And the actor may be wrong. He may be wrong because he is weak-willed, foolish, or simply aroused and not thinking straight. Whatever the case may be, these errors that cause him to miscalculate may not be culpable in themselves, and he may not then be culpable for taking the risk of miscalculation. The actor may not be culpable for the underlying rape – his estimate of the risk of nonconsent was sufficiently low – and he may not be culpable for disrespecting the law. He may simply be a fool. But it is not the criminal law’s purpose to punish rationality errors or character flaws per se.

Because we advocate “undermining the rule of law” as its own legally protected interest, there are two related questions we should address here. These are the questions of how to deal with exculpatory and inculpatory mistakes of law.

First, let us consider the type of exculpatory mistake of law that we briefly addressed in Chapter 4. Imagine that Alex intends to have sexual intercourse with Betty, and he accurately assesses that she is sufficiently mature to consent. As it turns out, a proxy crime has been enacted that prohibits females under seventeen from consenting to intercourse. Betty is sixteen. Alex, however, does not know about the existence of the proxy crime.

In our view, if the actor does not know about the proxy crime’s existence, then he should be entitled to a mistake-of-law excuse. Indeed, this “excuse” is built into the nature of the legally protected interest. Because Alex does not culpably risk undermining “the rule of law,” he should not be punished for refusing to follow the guidance of a proxy crime of which he was unaware.

On the other side of the coin, allowing the value of the rule of law itself to be a legally protected interest may allow us to punish actors who until this point have been beyond the law’s reach – those who commit legally impossible attempts. A legally impossible attempt is an action that the actor believes violates the law but does not do so because there is no law of the sort that he believes he is violating. Under our idealized regime, a legally impossible attempter would be someone who believes that he is risking harm to a legally protected interest, but the interest is not protected (dancing on Sundays, perhaps?). With the addition of proxy crimes, one can imagine an actor who believes that it is an offense