¹ Stanford Law Review, vol. 33 (April 1981), pp. 591–673. See also Kelman, Mark, A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987), pp. 15–185.Google Scholar

² See Hager, Mark, “Against Liberal Ideology,” American University Law Review, vol. 37 (Summer 1988), pp. 1051, 1057–58.Google Scholar

Briefly, the freedom/determinism dichotomy refers to the philosophical issue of whether determinism prevails throughout nature, including the realm of human action, or whether human action is indeterministic is some sense, and what resolution of these questions entails for moral responsibility. The act/character dichotomy refers to the issue of whether moral responsibility is ultimately a function of how we act or a function of what kind of character we have. The rule/principle dichotomy refers to the issue of whether we should be guided in each of our acts by our ultimate moral principles, or whether we should be guided by rules that are more determinate than those principles but that lead to some acts that from the standpoint of the principles would be judged to be morally wrong.

³ See Hampton, Jean, “Mens Rea,” Social Philosophy & Policy, vol. 7, no. 2 (Spring 1990).Google Scholar

⁴ Dressier, Joshua, Understanding Criminal Law (New York, Oakland, and Albany: Matthew Bender, 1987), p. 65.Google Scholar

⁵ ibid.

⁶ Performance of a mental ritual might also qualify. See Katz, Leo, Bad Acts and Guilty Minds: Conundrums of the Criminal Law (Chicago and London: University of Chicago Press, 1987).CrossRefGoogle Scholar

⁷ Dressier, , Understanding Criminal Law, pp. 67–68Google Scholar; Hart, H.L.A., Punishment and Responsibility (New York: Oxford University Press, 1968), pp. 95–96, 150–51Google Scholar; Perkins, Rollin and Boyce, Ronald, Criminal Law (Mineola: Foundation Press, 3rd ed. 1982), p. 837.Google Scholar

⁸ Model Penal Code, § 2.01 (Proposed Official Draft 1962).

⁹ ibid., § 1.13(2).

¹⁰ ibid, § 2.01.

¹¹ Hart, , Punishment and Responsibility, p. 99.Google Scholar

¹² The United States Supreme Court held that the federal constitutional prohibition of “cruel and unusual punishments” prevented criminalizing the status of narcotics addiction. Robinson v. California, 370 U.S. 660, 82 S.Q. 1417, 8 L.Ed.2d 758 (1966). The orthodox interpretation of the Robinson decision is that it rests on the distinction between punishing statuses and punishing acts. See, e.g., Dressier, , Understanding Criminal Law, pp. 73–77.Google Scholar

¹³ Husak, Douglas, Philosophy of Criminal Law (Totowa: Rowman and Littlefield, 1987), ch. 4.Google Scholar

¹⁴ Perkins, and Boyce, , Criminal Law, pp. 896, 899.Google Scholar

¹⁵ LaFave, Wayne and Scott, Austin, Criminal Law (St. Paul: West Publishing, 3rd ed. 1986), p. 242.Google Scholar

¹⁶ Lewis, David, “The Punishment That Leaves Something to Chance,” Philosophy & Public Affairs, vol. 18, no. 1 (Winter 1988), pp. 53–67Google Scholar; Sverdlik, Steven, “Crime and Moral Luck,” American Philosophical Quarterly, vol. 25, no. 1 (January 1988), pp. 79–85Google Scholar; Ashworth, Andrew, “Criminal Attempts and the Role of Resulting Harm Under the Code, and in the Common Law,” Rutgers Law Journal, vol. 19, no. 3 (Spring 1988), pp. 725–810Google Scholar; Shachar, Yoram, “The Fortuitous Gap in Law and Morality,” Criminal Justice Ethics, vol. 6, no. 2 (Summer/Fall 1987), pp. 12–36CrossRefGoogle Scholar; Note, , “Chance, Freedom, and Criminal Liability,” Columbia Law Review, vol. 87, no. 1 (January 1987), pp. 125–41Google Scholar; Thomson, Judith, “The Decline of Cause,” The Georgetown Law Journal, vol. 76 (1987), pp. 137–50Google Scholar; Rothstein, Paul, “Causation in Torts, Crimes, and Moral Philosophy: A Reply to Professor Thomson,” The Georgetown Law Journal, vol. 76 (1987), pp. 150–67Google Scholar; Schulhofer, Stephen, “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law,” University of Pennsylvania Law Review, vol. 122 (January 1974), pp. 1497–1607CrossRefGoogle Scholar; Ashworth, Andrew, “Belief, Intent, and Criminal Liability,” eds. Eekelan, J. and Bell, J., Oxford Essays in Jurisprudence (Oxford: Clarendon Press, 3rd ed. 1987).Google Scholar

¹⁷ See Model Penal Code, § 2.04(3).

¹⁸ See Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).

¹⁹ See Bayles, M., Principles of Law: A Normative Analysis (Dordrecht, Boston, Lancaster and Tokyo: D. Reidel Publishing, 1987), pp. 295–300CrossRefGoogle Scholar; Hall, Jerome, General Principles of Criminal Law (Indianapolis: Bobbs-Merrill, 1960) pp. 342–51Google Scholar; LaFave, and Scott, , Criminal Law, p. 248Google Scholar; Perkins, and Boyce, , Criminal Law, p. 905Google Scholar; Hart, Henry M., “The Aims of the Criminal Law,” Law and Contemporary Problems, vol. 23 (Summer 1958), pp. 401, 422–25CrossRefGoogle Scholar; Sayre, Frances B., “Public Welfare Offenses,” Columbia Law Review, vol. 33, no. 1 (January 1933) pp. 52, 82CrossRefGoogle Scholar; Singer, Richard, “The Resurgence of Mens Rea: The Rise and Fall of Strict Criminal Liability,” Boston College Law Review, vol. 30, no. 2 (March 1989), pp. 337, 403–8.Google Scholar

²⁰ See Alexander, Larry, “Retributivism and the Inadvertent Punishment of the Innocent,” Law and Philosophy, vol. 2, no. 2 (August 1983), pp. 233–6.CrossRefGoogle Scholar

²¹ LaFave, & Scott, , Criminal Law, p. 247.Google Scholar

²² See Note, , “Criminal Liability Without Fault: A Philosophical Perspective,” Columbia Law Review, vol. 75, no. 8 (December 1975), pp. 1517, 1564.Google Scholar

²³ ibid., p. 1537.

²⁴ ibid., p. 1537. For a rejoinder to this student note's claims on behalf of strict liability, see Singer, Richard, “The Resurgence of Mens Rea: The Rise and Fall of Strict Criminal Liability,” pp. 403–8.Google Scholar

²⁵ Model Penal Code, § 2.02(4)(d).

²⁶ See Note, , “Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond,” Stanford Law Review, vol. 35 (April 1983), pp. 681, 696.Google Scholar

²⁷ Bayles, , Principles of Law, pp. 295–300Google Scholar; Hart, , Punishment and Responsibility, pp. 132–40Google Scholar; Brady, James, “Punishment for Negligence: A Reply to Professor Hall,” Buffalo Law Review, vol. 22, no. 3 (Spring 1972), pp. 107–22Google Scholar; Fletcher, George, “The Theory of Criminal Negligence: A Comparative Analysis,” University of Pennsylvania Law Review, vol. 119, no. 3 (January 1971), pp. 401–38CrossRefGoogle Scholar; Hall, Jerome, “Negligent Behavior Should Be Excluded from Penal Liability,” Columbia Law Review, vol. 63, no. 4 (April 1963), pp. 632–4CrossRefGoogle Scholar; Wasserstrom, Richard, “H.L.A. Hart and the Doctrine of Mens Rea and Criminal Responsibility,” University of Chicago Law Review, vol. 35 (1967), pp. 92–126.CrossRefGoogle Scholar

²⁸ See Hart, , Punishment and Responsibility, pp. 147–149Google Scholar; Williams, Glanville, The Mental Element in Crime (Jerusalem: Magnes Press, Hebrew University, 1965), pp. 54–60Google Scholar; Fletcher, , “Theory of Criminal Negligence,” p. 417Google Scholar; Hall, , “Negligent Behavior,” pp. 632–36Google Scholar; Turner, J.W.C, “The Mental Element in Crimes at Common Law,” Cambridge Law Journal, vol. 6, no. 1 (1936), pp. 31, 44–48.CrossRefGoogle Scholar

²⁹ See authorities in note 27; LaFave, and Scott, , Criminal Law, p. 234.Google Scholar

³⁰ State v. Baker, 1 Kan. App. 2d 568, 571 P.2d 65 (1977).

³¹ ibid., pp. 570, 571 P.2d, pp., 67–68.

³² People v. Shaughnessey, 66 Misc.2d 19, 319 N.Y.S.2d 626 (1971).

³³ State v. Kremer, 262 Minn. 190, 114 N.W.2d 88 (1962).

³⁴ State v. Weller, 4 Conn. Cir. 267, 230 A.2d 242 (1967).

³⁵ State v. Baker, 1 Kan. App. 2d, p. 573, 571 P.2d, p. 69.

³⁶ Kelman, , “Interpretative Construction in the Substantive Criminal Law,” p. 593.Google Scholar

³⁷ See People v. Shaughnessey.

³⁸ Perkins and Boyce define proximate cause as an actual cause which is not so remote in the causation chain that the court will not recognize it as a legal cause of the event in question. It is a question of “fact and degree.” Perkins, and Boyce, , Criminal Law, pp. 774–77.Google Scholar LaFave and Scott add, “one might logically… be harder on those who intended bad results which differ from what they intended, than on those (morally less at fault) whose conduct amounts only to reckless or negligent creation of risks of bad result.” LaFave, and Scott, , Criminal Law, p. 283.Google Scholar

³⁹ See State v. Kremer.

⁴⁰ See State v. Weller.

⁴¹ 2 N.Y.2d 133, 157 N.Y.S.2d 558, 138 N.E. 2d 799 (1956).

⁴² 278 F.2d 169 (3rd Cir. 1960).

⁴³ See also People v. Freeman, 61 Cal. App. 2d 110, 142 P.2d 435 (1943); People v. Hardy, 33 Cal. 2d 52, 198 P.2d 865 (1948); People v. Newton, 8 Cal. App. 3d 359, 87 Cal. Rptr. 394 (1970); Hill v. Baxter, 1 Q.B. 277 (1958).

⁴⁴ 31 Ala. App. 334, 17 So. 2d 427 (1944).

⁴⁵ 72 Misc.2d 646, 340 N.Y.S. 2d 77 (1973).

⁴⁶ For earlier hints in the literature that strict liability and the voluntary act principle are strange bedfellows, see Budd, M. and Lynch, A., “Voluntariness, Causation, and Strict Liability,” Criminal Law Review (January 1978), pp. 74, 75, footnote 6.Google Scholar See also Husak, , Philosophy of Criminal Law, p. 140Google Scholar (obliquely making this point). And see Killbride v. Lake, 1972 N.Z.L.R. 590.

⁴⁷ Murphy, Jeffrie, “Involuntary Acts and Criminal Liability,” Ethia, vol. 81 (1971), pp. 332, 340–42.CrossRefGoogle Scholar

⁴⁸ See discussion in text accompanying note 16 supra.

⁴⁹ 4 Wash. App. 908, 484 P.2d 1167 (1971).

⁵⁰ ibid., p. 917–19, 484 P.2d, p. 1174.

⁵¹ ibid., p. 910–11, 484, P.2d, p. 1170.

⁵² ibid., p. 919, 484 P. 2d, p. 1174.

⁵³ Consider the following defense of combining objective and subjective factors in determining negligence: “A second source of resistance to admitting negligence as a basis of criminal liability is the assumption that legal negligence determinations must remain wholly objective, i.e., exclusively determined by reference to what a reasonable or prudent person would have thought or done in the circumstances. Such fully objective tests have the weakness that they will not be sensitive to those respects in which an individual accused may be disadvantaged, through no fault of his own, as compared with a person or reasonable prudence. But in the absence of good arguments for retaining these objective tests, it seems reasonable to revise Canadian law so that the test of negligence combines an appeal to publicly accepted objective standards of reasonable care with an individualized test of fault or culpability, permitting evidence of the individual's lack of capacity or opportunity to meet those standards to tell against a verdict of negligence.” Baker, Brenda, “Mens Rea, Negligence, and Criminal Law Reform,” Law and Philosophy, vol. 6, no. 1 (April 1987), pp. 53, 82.CrossRefGoogle Scholar

This attempt to weld objective and individualized tests together demonstrates a basic confusion. There is either the accused as we find him, with whatever kinds of problems of memory, prior education, prior choice, etc., that explained the particular choice on the particular occasion – i.e., that explained the particular case of inadvertent negligence – or there are other people with other character traits that we might want to deem to be ordinary reasonable people, purely fictitious people who would or would not have made the choice that the defendant did. There is no way of combining the real defendant and some objective defendant. The only real question is: what is the explanation of why the person did not advert to the risk in the particular case? The relevance of any other question is hard to discern. For example, the relevance of what somebody else would have chosen had that person adverted to the risk is of dubious relevance to the question of what we should do with an individual who did not advert to the risk.

⁵⁴ Hart, , Punishment and Responsibility, p. 148Google Scholar; Baker, , “Mens Rea, Negligence, and Criminal Law,” pp. 83–85Google Scholar; Fletcher, , “Theory of Criminal Negligence,” p. 417.Google Scholar

⁵⁵ Bayles, , Principles of Law, p. 299.Google Scholar

⁵⁶ See ibid.

⁵⁷ This hypothetical case is courtesy of Michael Moore.

⁵⁸ See Moore, Michael, “Choice, Character, and Excuse,” Social Philosophy & Policy, vol. 7, no. 2 (Spring 1990).CrossRefGoogle Scholar

⁵⁹ Although I am assuming throughout this essay that culpability in the criminal law is and should be choice-based, not character-based, and I am thus agreeing with Michael Moore on this point – see ibid. – 1 believe that choice and character are two paradoxically-related sides of the same culpability coin. Choice, apart from what it reveals about character, seems inadequate as a basis for praise or blame. But character that has not been chosen – that is a matter of luck – likewise seems inadequate as a basis for praise or blame. See Nagel, Thomas, “Moral Luck,” in Mortal Questions (Cambridge: Cambridge University Press, 1979), pp. 24–38.Google Scholar And punishing someone for possessing a bad character, when, through luck, that person has never been in a circumstance in which his character would cause him to make a culpable choice, is also troubling. See ibid. I believe the inseverability of act and character in judgments of culpability is revealed in many of the examples in Moore's essay, despite Moore's conclusion that those examples favor choice-based judgments over character-based ones. Nevertheless, it seems evident from the standard categories of mens rea – purpose, knowledge, recklessness, and (though not a mental state) negligence – that Anglo-American criminal law rests on a choice-based notion of culpability, whether or not such a notion is independent of or intertwined with a character-based notion.

⁶⁰ See Singer, Richard, “The Resurgence of Metis Rea: The Rise and Fall of Strict Criminal Liability,” p. 406.Google Scholar

Recklessness in the Model Penal Code is defined as a conscious choice to disregard “a substantial and unjustifiable risk.” Model Penal Code, § 2.02(2)(c). The most plausible interpretation of this provision is that to be reckless, the actor need only be aware of the magnitude of the risk; she need not be aware that it would be legally characterized as “substantial and unjustifiable.” Failure to avoid the known or believed risk must, however, manifest culpability – in the language of the Code, “a gross deviation from the standard of conduct that a law-abiding person would observe.” ibid.

Actually, the Code's definition of recklessness suggests conduct somewhat more culpable than the minimum possible degree of culpability. If an actor knowingly takes any unjustifiable risk, no matter how substantial, the actor may be culpable, depending upon whether the choice bespeaks callousness.

⁶¹ Milo, Ronald, Immorality (Princeton: Princeton University Press, 1984), p. 83CrossRefGoogle Scholar; Zimmerman, Michael, “Negligence and Moral Responsibility,” Nous, vol. 20, no. 2 (June 1986), p. 199CrossRefGoogle Scholar; Smith, Holly, “Culpable Ignorance,” The Philosophical Review, vol. 92, no. 4 (October 1983), p. 543.CrossRefGoogle Scholar

⁶² Holly Smith offers the hypothetical case of the secretary asked by her boss to survey the blood types of the office staff as part of an experiment and who culpably fails to do so. As a result, a worker dies from massive bleeding who would have been saved by a transfusion by the paramedics had they known his blood type in time, which they would have had the secretary conducted the survey. The secretary is culpable. Her culpable choice caused the death in fact. But the culpable choice did not “proximately” cause the death. Smith, Holly “Culpable Ignorance,” pp. 550–51.Google Scholar

Actually, Holly Smith's example is just an illustration of the general problem of having liability turn on causation rather than solely on culpable choice. See authorities cited in note 16 supra. Of course, to the extent that we require that culpable choices be expressed in actions, there is always a “proximate cause” issue in relating the culpable choice to the action that expresses it. In other words, even if all criminal liability were to be based on “attempts” regardless of whether the attempts produced harm, we would still need some notion of proximate cause to distinguish “attempts” from mere intentions. I owe this point to Leo Katz.

⁶³ Cf. United States v. Short, 4 C.M.A. 437, 16 C.M.R. 11 (1954) (an assault with intent to commit rape case where an intoxicated soldier failed to understand a Japanese woman's “no,” although we don't know if he skipped any language classes).

⁶⁴ Kelman, , “Interpretive Construction in the Substantive Criminal Law,” pp. 606–11.Google Scholar

⁶⁵ See Model Penal Code, § 2.08(2).

⁶⁶ See Lewis, “The Punishment That Leaves Something to Chance.”

⁶⁷ See Kelman, , “Strict Liability: An Unorthodox View,” Encyclopedia of Crime and Justice, ed. Kadish, S. (New York: The Free Press, 1983), vol. 4, p. 1517.Google Scholar

⁶⁸ I, of course, have completely omitted any discussion of the strict liability presented by the absence of a defense for nonculpable ignorance of the criminal law. See, e.g., Model Penal Code, § 2.04(3).