Retributivism refined-or run amok?

University of Chicago Law Review

Volumn 77, Issue 1, 2010, Pages 551-584

  Simons, Kenneth W ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 77955502341     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (66)

1. This is the standard term employed in the literature on criminal attempts. See Joshua Dressier, Understanding Criminal Law § 27.06[B][2] (Lexis 5th ed 2009) (defining the "last act" test). It refers to an act by which the defendant believes that he has done all that he must in order to produce the intended result (such as the death of a victim or the burning of a building). I put the term in quotes because the authors are also including risky acts that are not intended to produce harm, such as dangerous driving (pp 198-216).
2. If D retains complete control of the risk-that is, if he believes that there is no chance that the risk will cause harm to a legally protected interest-then, on their view, criminal culpability is unwarranted (p 19). The authors also emphasize that the defendant must be able to control the risk of harm he has created "through exercise of reason and will alone" (p 197).
3. I say "criminal culpability" and not "criminal liability" because the authors do acknowledge that consequentialist values could militate against criminal liability in some situations even though the actor is criminally culpable (pp 321-24) (discussing the burden of proof, plea bargaining, and other sentencing considerations).
4. "Counting crime types," the authors assert, "is easy for us: we have only one crime - manifesting insufficient concern for others' legally protected interests" (p 246).
5. The authors provide a comparable example, Frankie. discussed below in Part III. A.2.
6. The second position, I must say, is precariously proximate to the precipice of the preposterous.
7. For example, the authors provide intuitively powerful counterexamples to the claim that results should matter for criminal liability. In "The Satanic Cult." twenty people, in order to join a gang, each fire a gun at the victim, knowing that only one rifle contains a live shell, but not knowing whether he has fired the deadly shot; the authors plausibly argue that we should not care which one is the actual killer (p 175). "The Broken Window" is a similar case of two children creating equivalent risks of harm, but only one actually breaking a window (p 176). The authors also identify an underappreciated problem with the "results matter" position: if negative results increase blameworthiness, why do fortuitous positive results not decrease blameworthiness (pp 178-80)? With respect to their claim that anything short of the "last act" of risk creation is insufficient for criminal liability, they offer strong reasons for rejecting the alternative view that firm intentions are sufficiently culpable acts (pp 199-210). Those reasons include the conditional - ity of such intentions and the opacity and indeterminacy of the actor's associated beliefs about the risks he is running and about his reasons (pp 203-06).
8. "Even Superman commits a culpable act by firing a gun because the sudden appearance of kryptonite may prevent him from stopping the speeding bullet" (p 199 n 2). A nice example, but misleading: To be culpable under the authors' approach, Superman must be reckless; he must actually consciously believe that there is some chance that he will suddenly be exposed to kryptonite and thereby be disabled from catching up to the bullet. If Superman is superconfident or is simply oblivious to that chance, he will not be culpable. Of course, if the actor is aware of some chance that the victim will suffer fear as a result of his inchoate act of brandishing the gun, the actor is, on the authors' theory, culpable for unleashing the risk of causing fear, though not necessarily for unleashing the risk of causing physical injury (p 218). I think the authors are too quick, however, to assume that an actor who intends to harm a victim and has come perilously close to doing so almost inevitably will actually believe that he has unleashed a risk that he cannot fully control (p 220). (Suppose he is about to light the fuse of a bomb or about to pull a loaded gun from his pocket.) Very often, actors who are bent on harming another form no specific beliefs of this sort; at most, they believe (in a vague sort of way) that they will probably succeed in what they are trying to do. In Part III.B, I discuss in more detail the requisite particularity, and degree of consciousness, of beliefs under the authors' theory.
9. Specifically, under the authors' approach, there is no need for separate crimes of solicitation, conspiracy, and accomplice liability. All are just cases of recklessly increasing the risks that others will commit crimes, through unjustifiably risking, encouraging, or aiding others' criminality. This approach also avoids the need to prove that the actor had the purpose to assist some specific crime, as opposed to proving that he risked that the other might commit any one of a range of crimes (pp 223-24).
10. The authors note that this problem is analogous to the problem of justifying a threshold version of deontology (p 287).
11. For example, the authors rely heavily on standards rather than rules to define criminal conduct. They justify this, in part, by the assertion that our current codes also rely very heavily on standards (p 292). But this claim is an exaggeration. Although legal criteria of reasonableness, negligence, and recklessness do require that a risk be unjustifiable, and thus do employ standards, such criteria only rarely are decisive. Indeed, they are often not at all significant in routine criminal prosecutions. For example, even if a theft or drug offense formally requires recklessness as to the amount of property stolen or drugs possessed, it would be extraordinarily rare for the justifiability of the actor's theft or possession to be a genuine issue. By contrast, their proposal, if implemented, would dramatically expand the use of standards in routine cases.
12. The actor's reasons for action include not only the reason or reasons that motivate his conduct but also any other reason that might justify his conduct of which he is aware. These reasons should be accorded weight by (1) their positive or negative force and (2) the actor's perception of the likelihood that the facts underlying the reasons do or will obtain (p 328). Although the authors do suggest that the criminal code might codify the weight of different legally protected interests and of different reasons for creating risks, and might provide clarifying commentary, they also propose that the jury first make the extremely open-ended determination whether the risks outweigh the reasons (pp 278-79).
13. Of course, what counts as culpable action in the first place-an action that triggers the state's right to punish according to what the actor deserves-often depends on the specific future harms or wrongs the actor intended or risked. Attempted murder depends on an intention to kill; reckless driving depends on the anticipated future risks of harm. But this is a completely distinct point. The mere fact that we often properly take an ex ante perspective in determining culpability does not convert a nonconsequentialist theory into a consequentialist one. See Kenneth W. Simons. Tort Negligence, Cost-Benefit Analysis, and Tradeoffs: A Closer Look at the Controversy, 41 Loyola LA L Rev 1171, 1188-89 (2008) (arguing that justifications like self-defense similarly take an ex ante perspective, a perspective that can be explained through a consequentialist assessment of risk and future harm, but that can also be explained on moral and nonconsequentialist grounds).
14. The authors' approach might also appear to be too consequentialist insofar as it requires a comprehensive, systematic balancing of risks, reasons, and duration of risk, in determining whether the risky act is culpable. Some will object that this is just a utilitarian cost-benefit analysis, similar to the Learned Hand test of tort negligence, and equally indefensible if one is a genuine nonconsequentialist. I am happy to leap to their defense here. I agree that we must balance the advantages and dis-advantages of taking a precaution to judge an actor's negligence in tort law. And we might similarly want to balance the risks and the reasons for choosing to take a risky course of action when we are judging criminal culpability. But in both cases, the balance need not, and should not. aim simply to maximize utility or welfare. See id.
15. For a tentative negative answer, see Kenneth W. Simons, Exploring the Intricacies of the Lesser Evils Defense, 24 L & Phil 645, 653-54 (2005) (explaining that if permission either to choose or not to choose the lesser evil is autonomy-based, then arguably an actor who chooses to act forfeits any objection to then being required to choose the least rather than lesser evil).
16. I am surprised, however, at the authors' criticism of the willful blindness doctrine, under which a mens rea of knowledge is deemed to include some cases in which the actor lacks knowledge only because she deliberately avoids confirming the relevant facts (pp 33-35). That doctrine is intended to accomplish just what they want to achieve with their two-variable recklessness criterion: avoid the inflexibility of the knowledge-recklessness distinction and treat certain especially culpable cases of cognitive recklessness as harshly as cases of knowledge. See Kenneth W. Simons, Should the Model Penal Code's Mens Rea Provisions Be Amended?, 1 Ohio St J Crim L 179, 196-98 (2003) (arguing that an exclusively cognitive criterion for distinguishing between knowledge and recklessness is too narrow).
17. In their example, a mule knows there is a 1 percent chance that his suitcase contains illegal drugs. The willful blindness doctrine would treat him as "knowing" if the reason why he does not inquire into whether his suitcase contains drugs (though he could easily do so) is in order to remain part of the criminal gang and obtain illegal profits (p 34). The doctrine thus is entirely consistent with the authors' approach, which looks both at the perceived risk and at the (good or bad) reasons for running the risk. Here, the mule has a socially unacceptable reason for not inquiring further, and this plausibly elevates his 1 percent estimation of the risk that he is smuggling to roughly the level of culpability of another (knowing) actor who is 90 percent sure that his suitcase contains illegal drugs. Deeming such a reckless actor to be "knowing" is not "absurd" (p 34), but is simply a way of expressing their comparable culpability. By contrast, if the mule is willing to take a 1 percent risk that he is smuggling drugs for a much less culpable reason, for example to show friendship to a person he admires, he is not comparable in culpability to a knowing actor.
18. Perhaps the authors' objection is that automatically classifying willful blindness as "knowledge" oversimplifies the analysis, given that knowledge can be more or less culpable than recklessness, depending on context. But the point of the willful blindness doctrine is to underscore that even though in many or most contexts cognitive recklessness (in the sense of awareness of a substantial but not very high risk of harm) is less culpable than knowledge, sometimes it is just as culpable.
19. In philosophical discourse, holism is a concept quite distinct from aggregation of risks: it is the idea that the whole cannot be reduced to any simple, invariant formula combining the parts, or that the meaning and significance of the parts depend on the larger whole of which they are a part. See Jonathan Dancy, Moral Particularism, in Edward N. Zalta. ed, The Stanford Encyclopedia of Philosophy, online at http://plato.stanford.edu/archives/ spr2009/entries/moral-particularism (visited Oct 29,2009).
20. Ned Block, Holism, Mental and Semantic, in Edward Craig, ed, Routledge Encyclopedia of Philosophy Online (Routledge 1998), online at http://rep.routledge.com/article/W015 (visited Oct 29,2009) ("Mental (or semantic) holism is the doctrine that the identity of a belief content (or the meaning of a sentence that expresses it) is determined by its place in the web of beliefs or sentences comprising a whole theory or group of theories.").
21. See Simons, 41 Loyola LA L Rev at 1172-73 (cited in note 12): In the famous Learned Hand formulation [of negligence, an actor] should take a precaution if, but only if, the marginal costs (or "burden," "B") of that precaution (in the form of the tangible costs of the precaution or the lost benefits that taking the precaution would entail) are less than its marginal benefits (in the form of reduced risks of injury, measured by multip-lying the probability ("P") of the injury times the magnitude ("L") of the injury if it occurs). Judge Learned Hand first announced this test in United States v Carroll Towing Co, 159 F2d 169. 173 (2d Cir 1947).
22. See MPC § 2.02(2)(c) (stating the requirement for recklessness that the actor "consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct").
23. The authors seem to concede as much (pp 42-43). I do agree with the authors that the Model Penal Code's "substantial risk" threshold for recklessness should be rejected, or at least supplemented by a provision that if the actor has an especially unjustifiable reason for imposing the risk, he may not impose even a "less than sub-stantial" risk (p 27). See Simons. 1 Ohio St J Crim L at 190-92 (cited in note 15).
24. Elsewhere, the authors indicate that relevant features of "reasons" include their "weight" (p 27), and whether the reasons are "misanthropic" (p 27) or "frivolous" (such as obtaining a thrill) (p 33).
25. Similarly, the authors concede that if a circumstance (such as the victim's nonconsent) is a motivating reason for the actor's engaging in sexual intercourse with her. that is more culpable than if the actor is simply aware of that circumstance (or. I would add, than if the actor merely hopes or desires that she does not consent even if he is not motivated thereby) (p 40). See Kenneth W. Simons, Does Punishment for "Culpable Indifference" Simply Punish for "Bad. Character"? Examining the. Requisite. Connection between Mens Rea and Actus Reus, 6 Buff Crim L Rev 219, 243-47 (2003) (arguing that some causal but nonmotivational desires are relevant to criminal liability).
26. Compare an example from a leading criminal law casebook: D gives a gift of an airplane ticket to his hated aunt, hoping the plane will crash, which it does. If this result is genuinely fortuitous-that is, D has no reason to believe that this plane is more unsafe than any other-then someone in the position of V might be happy to accept the ticket as a gift. (Suppose D is a crazy, wealthy person who gives away thousands of plane tickets, hoping thereby to kill some of the recipients.) Given that each recipient expects to benefit ex ante from the gift, D's risk creation might well be justifiable. See Sanford H. Kadish, Stephen J. Schulhofer, and Carol S. Steiker, Criminal Law and Its Processes: Cases and Materials 227-28 (Aspen 8th ed 2007) (proposing the example).
27. The authors are correct that we perhaps assume too readily that "driving" is an innocuous and justifiable activity, merely because it is so familiar and commonplace. As they point out, if Frankie instead walked to the victim's house with a gun strapped to her back and it misfired, we would not hesitate to judge her reckless (pp 50-51). This is so, I would add, even if the risk she believed the gun posed was no greater than the risk she believed she would have posed if she had driven carefully to the house. Nevertheless, careful driving, even for an improper purpose, may indeed be justifiable if its risks are quite small and are consented to, whereas it is much less likely that the endangered public does or hypothetically would consent even to the very small risks posed by a person carrying a gun.
28. The authors do address some of these nonconsequentialist features. They point out, for example, that there might be a moral distinction between imposing risks on "statistical" rather than identifiable victims: Suppose, for example, that the risks of tunnel building were concentrated on one known individual-Sam. Sam lives near the construction site, has a rare medical condition such that repetitive jack-hammering will eventually cause him to die. and cannot be moved. If tunnel building's benefits justify the loss of several statistical lives, does it likewise justify the killing of Sam? It is possible that some acts are justifiable only if. from our ungodlike epistemic vantage point, the risks of an act are borne by many individuals rather than concentrated on one-even if God knows the one on whom the harm will actually fall, and whose risk is therefore one (p 65).
29. In their sketch of how a factfinder should combine the "risk versus reason" variables in an actual sentencing decision, the authors assume a simple aggregative formula: (1) for each type or degree of harm, we multiply the perceived probability and the associated harm, and (2) we then sum these results (pp 282-85).
30. Kenneth W. Simons. Negligence, 16 Soc Phil & Pol 52,65 (1999).
31. Indeed, the authors devote several pages to a critique of the argument that "culpable indifference" or similarly culpable forms of inadvertence should operate as a criterion of culpability (pp 71-77) (analyzing the views of Simons, Victor Tadros, and Stephen Garvey). I agree with the authors that the criminal law should not simply ask whether an actor's attitude towards the victim or the victim's fate is "indifferent" or "insufficiently caring." We must indeed consider whether the actual choices and actions of the actor display indifference. "Culpable indifference" is not negated simply because the Russian roulette player or the murderer feels enormous remorse after killing the victim. See Simons, 6 Buff Crim L Rev at 220-22, 260-67 (cited in note 21). However. I do not have space here to respond to the authors' critique of my views on this issue.
32. This is my own example. The authors' actual examples are either much less plausible instances ot justified action (a surgeon kills an innocent person to save five patients who need the victim's organs to survive) or much more plausible instances (D borrows a rowboat to save several lives) (pp 101-02).
33. See notes 32-36 and accompanying text.
34. See generally Kenneth W. Simons, Dimensions of Negligence in Criminal and Tort Law, 3 Theoretical Inq L 283 (2002).
35. Id at 311-15.
36. See also pp 83-84 (containing further discussion of the "no internal reason" argument).
37. See Kenneth W. Simons, Self-Defense: Reasonable Beliefs or Reasonable Self-Control?, 11 New Crim L Rev 51,61-62 (2008).
38. Criminal culpability should depend on a serious type and degree of moral fault. Not every instance of negligent inadvertence or negligent lack of skill or competence should suffice for criminal liability, even if it would suffice for tort liability or for ascription of minimal moral responsibility.
39. Consider T.M. Seanlon, Moral Dimensions: Permissibility, Meaning, Blame 62-69 (Belknap 2008) (asserting that there may be no answer to the question which of two intentions "caused" or motivated my action).
40. The authors validly point out certain difficulties, such as the problem of identifying the relevant reference class, with conceptions of objective risk. But they move too quickly to the conclusion that any nonsubjective conception is completely arbitrary. One who drops a bowling ball from the top of a building to measure the force of gravity for himself, and who believes there are people below whom he is putting in extreme danger, is reckless This is true despite the fact that his companion believes the risk is greater than he does; the building's doorman would have estimated the risk to be slightly lower; and a window washer, with a better view below, knows that there are very few people below so that dropping the ball is unlikely to injure anyone. It simply makes no sense to allow the actor's liability to hinge not upon what he knows, or God knows, but upon the arbitrary selection among the friend, doorman, and window washer for the correct perspective for assessing "objective risk" (pp 29-30). However, the authors ignore an option that is both non-arbitrary and plausible, namely, the risk as perceived by a reasonable person in the shoes of the actor. See text accompanying note 30.
41. The authors might plausibly reply that, in the end, all that matters for criminal culpability is what probability of harm the D believed she was creating, in light of the reasons she had for imposing the risk. Whether erroneous or confused reasoning produces that bottom-line probability is arguably irrelevant. But this reply does not entirely solve the problem, since D might not consciously come to any specific conclusion about how to combine the two probabilities. Recall that, in the preconscious category of cases, the authors are willing to consider what the actor means when she vaguely recognizes the dangerousness other conduct (p 52). Should one similarly not ask what the actor means when she vaguely recognizes that two distinct probabilities must interact in producing a final probability?
42. See Kimberly Kessler Ferzan, Beyond Intention, 29 Cardozo L Rev 1147.1185-90 (2008) (analyzing the difficult problem of matching the actor's intention with what the criminal law prohibits).
43. Michael S. Moore. Placing Blame: A General Theory of Criminal Law 449-59 (Oxford 1997) (discussing whether intent should affect the level of culpability for a result).
44. The authors offer an intriguing example of forgetting that not only displays the radical subjectivism of their approach (under which results are entirely irrelevant), but also demonstrates, once again, why we should not always demand that the actor be consciously aware of the legally relevant facts. Consider someone who, as he is returning from work and driving into his driveway, notices that his brakes are soft. He realizes that it would be reckless to drive with the brakes in that condition, so he resolves to have them fixed before driving. He also knows that he is likely to forget this by the next morning, so he resolves to write a reminder note to himself when he gets inside his house. Suppose he does not do so. Then he may be reckless for deciding not to write the note, even if the next morning he remembers to get the brakes fixed, or drives without incident. For he consciously ran an unjustifiable risk of forgetting the brakes, then driving, and then causing an accident.
45. On the other hand, if his failure to write the reminder note was due to being greeted upon entering the house with the news that his father was deathly ill. or that his daughter had been severely injured in a soccer collision-news that completely occupies his attention and crowds out his resolution to write himself a reminder about the brakes-then his failure to write the note will not be reckless, again irrespective of what it leads to the next day. The cost of averting one's attention from, say, news of a family crisis in order to write a reminder note about one's car is high relative to the risks (of forgetting to write the note, then forgetting about the brakes, then driving, and then having an accident). Forgetting is itself involuntary. Failing to act to avert forgetting is voluntary and may be culpable depending on the reasons for failing to act. But very often, those reasons will be good reasons and will not display insufficient concern for others' welfare (pp 80-81).
46. This analysis is problematic, however. The authors suggest that if one has a good enough rea-son for failing to write the note, one would not be reckless for not doing so. But under their approach, it should not matter whether one has a good or bad reason for failing to write the note. If the actor does not write the note because he gets a call from his partner in crime about the bank robbery they are planning, and this causes him to forget to write the note, he is still not reckless, under their theory. Once he gets the call, he is no longer adverting to the risks from the bad brakes. It should not matter, on their approach, why he does not advert to the risks. By contrast, under an approach that permits punishment for some forms of culpable indifference or unreasonable failure to be aware of or to infer the existence of risks, the reason why an actor is not aware of a risk is indeed legally relevant. (Their actual example is consistent with their theory only if the actor consciously decides not to write the note when he gets the phone call: however, that is not a very realistic scenario.)
47. The issue is actually a bit more complicated. If Dl deliberately drinks herself into an unconscious stupor, knowing that she is likely to harm V while in that state, she might not be negligent at the time that she harms V (assuming that she is then entirely unconscious), but of course her prior culpable act justifies criminal liability. Compare permanently unconscious D2. who indeed cannot be negligent because at no point in time was he capable of recognizing legally relevant risks.
48. For example, this "high alertness" strategy might be counterproductive if it causes the actor to be less responsive to dangers than if he attended both to the risks and to how carefully he is engaging in the risky activity. Drivers who focus only on who might be victimized by their driving might pay too little heed to how carefully they are driving.
49. For some valuable discussions of capacity and its relationship to moral and criminal responsibility, see George Sher, Who Knew?: Responsibility without Awareness 109-10, 113-15 (Oxford 2009) (arguing that moral and prudential demands only apply to those actors with suffident cognitive capacity).
50. R.A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law 57-77 (Hart 2007) (arguing that in situations where an actor has an exculpatory justification for her actions, she can be held morally responsible, but not answerable, for those actions).
51. John Gardner, The Gist of Excuses, 1 Buff Crim L Rev 575, 580-85 (1998) (arguing that capacity should be understood in relation to the actor's social role).
52. H.L.A. Hart, Punishment and Responsibility 155 (Oxford 1968) (rejecting the "mistaken assumption that the only way of allowing for individual incapacities is to treat them as part of the 'circumstances' in which the reasonable man is supposed to be acting").
53. George Sher, In Praise of Blame 57-59 (Oxford 2006) (arguing that moral blame attaches to moral failings but not to failings caused by mental or physical defects).
54. The source of the reference to the "law-abiding" person is the Model Penal Code, which uses this phrase in its definition of recklessness instead of the "reasonable" person language it employs in its definition of negligence. See MPC § 2.02(2)(c)-(d). But it is doubtful that the different formulations were meant to have different meanings. See Simons, 1 Ohio St J Crim L at 186 (cited in note 15) (pointing out that the Model Penal Code commentary gives no explanation of the difference between the terms).
55. The authors argue for a gross deviation rather than a simple deviation from the standard of the law-abiding or reasonable person: "The criminal law should not be concerned with those actors who, although they impose risks that are not justified by their reasons, are only minimally culpable (because their reasons almost justify the risks they perceive)" (p 43).
56. The authors emphasize that their "gross deviation" requirement is both a crucial principle of lenity and an important constraint on the discretion of state officials (pp 314-15).
57. In one instance, the authors frame the question as whether "what the actor did is a 'gross deviation' from what the ordinary citizen, with ordinary concern for the interests of others, would do" (p 314). In their proposed jury instruction, they use all three terms interchangeably: the jury must find that the actor "grossly deviated from what an ordinary, reasonable, law-abiding actor would do" (p 329).
58. It is also in tension with their argument that, in defining "objective risk," there is no non-arbitrary way to specify an "objective" risk of harm. See notes 30-31 and accompanying text.
59. See notes 31-36 and accompanying text.
60. "A choice that reflects insufficient concern for others' interests is the paradigmatic culpable choice. The fact that the actor believes her lack of concern is justifiable cannot make it so" (p 153).
61. "Here we can do no more than merely assert our belief, one that most of our practices of blaming and punishing presuppose, that one is morally culpable for 'mistakes' of justificatory strength but not for mistaken beliefs about factual matters" (p 153 n 76).
62. Thus, the excuse of duress turns on whether a "person of reasonable firmness" would have been able to resist the threat, and the partial excuse of voluntary manslaughter on whether the actor had a "reasonable explanation or excuse" for killing. See MPC §§ 2.09(1) (duress), 210.3(l)(b) (manslaughter).
63. Possible substitute language for excuses includes: what can "fairly" be expected of an actor; or whether it is "understandable" that the actor did not conform to the law. Indeed, the following emphasized language in the authors' proposed jury instruction is much more apt than the "reasonable person" portion of the instruction: You need not conclude that what defendant did was the "right thing to do," but rather, that taking into account a realistic sense of faults and failings of the ordinary human being, we could not have expected a reasonable person, one who shows proper regard for the interests of others, to have acted otherwise than defendant acted (p 329) (emphasis added).
64. Moreover, they would also expand the duress defense to innocent threats, shields, and bystanders (p 144).
65. See note 50.
66. I do agree with the authors that insofar as their formulation addresses excuse rather than justification, it may properly be formulated as an open-ended standard rather than a rule (p 146).