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circumstances, it is still the case that every agent is capable of statistically unlikely behavior that she is not usually disposed to do, and not everyone subject to unusual stresses or temptations responds by offending. The criminal law fairly expects all rational agents to act properly even in the face of unusual circumstances for which the agent bears no responsibility. In summary, to punish for character would be unjust; and to fail to punish merely because a wrongdoer otherwise has good character would be to neglect the positive value of retributive desert.24

There is one final way in which a choice theory can incorporate “character,” and that is in the law’s presumptions about the minimum prerequisites for moral and legal agency. The criminal law presupposes that actors are rational actors who are capable of using reasons to guide their conduct. It also assumes that actors have the capacity for self-reflection. We are also somewhat sympathetic to the view that some level of affective capacity is likewise required. For norms to have meaning, the actor must be able to appreciate the prohibition. Thus, it appears to us that there is a plausible argument for the claim that actors must have substantial capacity to empathize with other human beings and affectively to comprehend the consequences that their actions will have on others before they can rightly be said to violate a moral or legal norm – an argument that may have implications for punishment of psychopaths.

III. Conclusion

The criminal law’s purpose is the prevention of harm in the sense that the norms of conduct the criminal law embodies exist for that purpose. Although harm prevention may be accomplished by making it more difficult to commit a crime or by increasing the punishment for the crime, these methods do not require any measure of proportionality

24But see Tadros, supra note 21, at 31–53, for a defense of punishment on the basis of character. Tadros claims the evaluation necessary for punishment is of the actor, not the act, which may or may not reveal the actor’s character. Given our conception of the grounds of culpability, it is not clear how much ultimately turns on the distinction between act-based and character-based judgments. But we do maintain that the actor’s reasons are relevant, even if in most circumstances the actor gives less weight to those reasons than on the occasion in question.

18	IN T RODUCT ION

between the harm sought to be prevented and the “punishment” that is meted out. We believe that the criminal law does and should reflect retributive principles. It does and should punish people according to desert. The criminal law prevents harm by inculcating and reinforcing norms about how to treat others and operates in accordance with norms about deserved and appropriate punishment for the violation of those norms.

Our subjectivist – “choice” – theory of criminal law is embedded within this moderate retributive theory. General questions about retributivism, including how desert is measured, how great a positive value is retributive desert, and how strong the retributivist side constraint is, are as applicable to our theory as they are to retributivism generally. Throughout the rest of this book, however, our focus is on culpable choices that give rise to retributive desert and not on the retributive theory within which they are embedded. We believe that, both as a side constraint on punishment and as a positive value to be realized through punishment, retributive desert is of sufficient importance to be the major organizing principle of the criminal law. In other words, the criminal law should be primarily structured to ensure to a considerable degree that actors are not punished in the criminal law more than they deserve but are punished to the extent that they deserve. What does and does not contribute to retributive desert is thus our primary focus throughout the rest of this book.

In Part 2, beginning with the next chapter, we argue that the culpability upon which retributive desert turns is a function of the risks to others’ legally protected interests that the actor believes he is imposing and the reasons he has for imposing those risks. Then, in Chapter 3, we argue that unperceived risks do not affect the actor’s culpability – that is, that negligence is not a basis of culpability. In Chapter 4 we examine the justifications and excuses that may nullify or reduce the culpability of what might otherwise be culpable acts.

In Part 3, Chapters 5 through 7, we turn from culpability to culpable acts. In Chapter 5 we argue that the results of culpable acts do not add to or detract from the actor’s culpability and hence his retributive desert. Attempts and successes merit the same amount of punishment.

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In Chapter 6 we consider which forms of inchoate criminality – incomplete attempts, solicitation, conspiracy, and complicity – constitute culpable acts, and we argue that inchoate criminality should be radically reconceptualized to conform to the analysis of culpability in Chapter 2. Simply put, an actor has not committed a culpable act until he engages in conduct that he believes unleashes a risk of harm over which he no longer has complete control.

In Chapter 7 we take up the locus of culpability as well as omissions to act, including crimes of possession and the individuation of crimes. The locus of culpability, we argue, is the willed bodily movement. Omissions, with a few exceptions, are not generally culpable for purposes of retributive desert because they do not impose risks to others’ legally protected interests. They may evince a morally inappropriate lack of concern but not a lack of the concern that can be demanded on pain of punishment.

With respect to act individuation, we argue that, on our approach, acts may pose risks to several interests simultaneously and may do so for varying amounts of time. Culpability is determined holistically as a function of the degree and types of all such risks and their duration. This approach neatly solves what otherwise are quite nettlesome problems of double jeopardy and multiple punishment that currently bedevil criminal law doctrine.

Finally, in Part 4 – Chapter 8 – we sketch what a criminal law code would look like if structured around culpability and thus retributive desert as we have analyzed it. Its most radical effect would be to eliminate the so-called special part of the criminal law – the list of specific criminal offenses – in favor of a list of legally protected interests that should not be put at risk without adequate reasons.

P A R T T W O

The Culpable Choice

C H A P T E R

I I

The Essence of Culpability

Acts Manifesting Insufficient

Concern for the Legally Protected

Interests of Others

The Model Penal Code revolutionized mens rea by reducing mental-state terminology to four concepts: purpose, knowledge, recklessness, and negligence.1 As defined by the Model Penal Code, purpose requires that the forbidden result be one’s conscious object or that one is aware – or hopes or believes – that a forbidden circumstance (e.g., that the property one is receiving is stolen) exists. Knowledge with respect to results (e.g., death, injury, destruction) requires that one be practically certain that one’s conduct will bring about such results. Knowledge with respect to circumstances requires that one be aware that such circumstances exist. Recklessness entails the conscious disregard of a substantial and unjustifiable risk that a forbidden result may occur or that relevant circumstances exist. Negligence requires that one is unreasonably unaware of a substantial and unjustifiable risk that the forbidden

1Model Penal Code (Official Draft and Revised Comments) § 2.02 (1985).

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24	T HE CULPA BLE CHOICE

result may occur or that the relevant circumstances exist. This hierarchy presupposes that purpose is more culpable than knowledge, knowledge is more culpable than recklessness, and recklessness is more culpable than negligence.2

Although we believe that the Model Penal Code brought much greater clarity than the myriad concepts employed by the common law, we still believe that more progress can be made. In this chapter, we reconceptualize culpability. We begin with an analysis of recklessness and argue that the substantiality prong is not independent of the justifiability prong. We also argue that recklessness must be understood subjectively, not objectively. With recklessness thus reformulated, we turn our attention to purpose and knowledge and conclude that when properly analyzed and elaborated, purpose and knowledge are merely forms of recklessness, the culpability of which lies in the insufficient concern the actor displays for the legally protected interests of others. Recklessness is plotted on two axes: (1) the degree of risk the actor believes he is imposing on others’ interests and (2) his reasons for doing so. Knowledge represents the extreme on axis (1), and purpose is close to the extreme on axis (2). Our argument as to why negligence is not culpable will wait until Chapter 3.

With this new uniform conception of culpability, we turn to the details. First, we address possible objections to our approach, and we also distinguish our view from that of “indif erence”f proponents. Second, we turn to how “risks” should be understood for purposes of balancing, and we argue that risks should be assessed holistically. Next, looking to the actor’s reasons that may justify his action, we argue that the actor must be aware of the reasons, but he need not be motivated by them. Finally, we turn to the nature of the action to be assessed, arguing that actions are assessed individually and not holistically, and that it is actions, and not beliefs, that are the proper subject of inquiry.

2But see Douglas Husak, “The Sequential Principle of Relative Culpability,” 1 Legal Theory 493–518 (1995); Kenneth W. Simons, “Rethinking Mental States,” 72 B.U.L. Rev. 463 (1992).