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Contents

Acknowledgments

PART ONE Introduction: Retributivism and the Criminal Law

CHAPTER I Criminal Law, Punishment, and Desert

I. The Criminal Law and Preventing Harm

II. Questions about Retributivism

A. WEAK, MODERATE, OR STRONG RETRIBUTIVISM?

B. MEASURING DESERT

C. THE STRENGTH OF THE RETRIBUTIVIST SIDE CONSTRAINT

D. THE FREEWILL-DETERMINISM DEBATE

E. CHOICE OR CHARACTER?

III. Conclusion

PART TWO The Culpable Choice

CHAPTER II The Essence of Culpability: Acts Manifesting Insufficient Concern for the Legally Protected Interests of Others

I. Unpacking Recklessness

II. Folding Knowledge and Purpose into Recklessness

A. KNOWLEDGE

B. PURPOSE

III. A Unified Conception of Criminal Culpability

A. UNDERSTANDING INSUFFICIENT CONCERN

1. How Many Categories Do We Need?

2. Indifference Compared

3. Bizarre Metaphysical Beliefs and Culpability

4. Deontological Norms and Consequentialist Justifications

B. ASSESSING THE RISK

1. The Holism of Risk Assessment

2. Opaque Recklessness

3. Genetic Recklessness

C. REASONS AND JUSTIFICATION

D. SINCERE, UNREASONABLE, AND RECKLESS BELIEFS AND THE CULPABILITY DETERMINATION

E. RECKLESSNESS AND ACT AGGREGATION

IV. Proxy Crimes

CHAPTER III Negligence

I. Why Negligence Is Not Culpable

II. Attempts at Narrowing the Reach of Negligence Liability

A. SIMONS’S CULPABLE INDIFFERENCE

B. TADROS’S CHARACTER APPROACH

C. GARVEY’S DOXASTIC SELF-CONTROL THEORY

III. The Strongest Counterexample to Our Position

IV. The Arbitrariness of the Reasonable-Person Test

CHAPTER IV Defeaters of Culpability

I. Justifications and Excuses: Reorienting the Debate

A. EVISCERATING THE OFFENSE-DEFENSE DISTINCTION

B. ELIMINATING THE WRONGDOING-CULPABILITY DISTINCTION

C. SUMMARY

II. Socially Justifying Reasons

A. IN GENERAL: THE LESSER-EVILS PARADIGM

1. The General Consequentialist Structure of Lesser-Evil Choices

2. Deontological Constraints on the Consequentialist Calculus

3. Second- and Third-Party Implications

4. The Special Case of Lesser versus Least Evil

B. SELF-DEFENSE, CULPABLE AGGRESSORS, AND OTHER CULPABLE ACTORS

1. Rights-Based Justifications

2. Third-Party Focus

3. Justified Responses to Culpable Aggressors

4. The Risk That a Possible Culpable Aggressor Is Not One

5. Culpable Aggressors versus Culpable Aggressors

6. The Provoked Culpable Aggressor

7. The Range of Culpable Actors

C. SOCIALLY JUSTIFYING REASONS: SOME CONCLUDING REMARKS

III. Excuses

A. PERSONAL JUSTIFICATIONS AND HARD CHOICES

1. Personal Justifications

2. Expanding Duress

3. Duress, Preemptive Action, and Proportionality

4. Implications

5. A Possible Extension? Preemptive Collective Protection and Preventive Detention

B. EXCULPATORY MISTAKES

C. IMPAIRED RATIONALITY EXCUSES

1. Excuses versus Exemptions

2. Insanity

3. Degraded Decision-Making Conditions

IV. Mitigating Culpability

A. THE PERPLEXING PARTIAL EXCUSE OF PROVOCATION

1. Provocation as Justification

2. Provocation as Excuse (1): The Character Explanation

3. Provocation as Excuse (2): The Decision-Making Explanation

B. ASSIMILATING PROVOCATION

C. HOW MITIGATION WORKS

PART THREE The Culpable Act

CHAPTER V Only Culpability, Not Resulting Harm, Affects Desert

I. The Irrelevance of Results

II. The Intuitive Appeal of the “Results Matter” Claim

III. “Results Matter” Quandaries

A. IF NEGATIVE RESULTS INCREASE BLAMEWORTHINESS, DO POSITIVE RESULTS DECREASE BLAMEWORTHINESS?

B. CAUSAL CONUNDRUMS

IV. Free Will and Determinism Reprised

V. The Immateriality of Results and Ancestral Culpable Acts

VI. The Immateriality of Results and Inchoate Crimes

VII. Inculpatory Mistakes and the Puzzle of Legally Impossible Attempts

CHAPTER VI When Are Inchoate Crimes Culpable and Why?

I. Our Theory of Culpable Action

A. PRELIMINARY CONSIDERATIONS

B. INTENTIONS

1. Are Intentions Acts?

2. Why Intentions Are Not Culpable Acts

C. SUBSTANTIAL STEPS

D. DANGEROUS PROXIMITY

E. LAST ACTS

II. Some Qualifications and Further Applications

A. WHEN PREPARATORY ACTS ARE ALSO LAST ACTS

B. LIT-FUSE ATTEMPTS

C. IMPOSSIBLE ATTEMPTS

D. RECONCEPTUALIZING OTHER INCHOATE CRIMES

CHAPTER VII The Locus of Culpability

I. The Unit of Culpable Action

A. RETHINKING CULPABLE ACTION

B. FROM VOLITIONS TO WILLED BODILY MOVEMENTS

II. Culpability for Omissions

A. BACKGROUND: THE “NO CRIMINAL LIABILITY FOR OMISSIONS” REGIME AND EXCEPTIONS THERETO

B. ELEMENTS OF OMISSIONS LIABILITY

C. THE CRIME OF POSSESSION

III. Acts, Omission, and Duration

A. RISKY ACTS AND FAILURES TO RESCUE

B. CULPABILITY AND DURATION

IV. Individuating Crimes

A. TYPES OF CRIMES

1. A Brief Normative Defense

2. Disentangling Legally Protected Interests

B. TOKENS OF CRIMES

1. Counting Willed Bodily Movements

2. Volume Discounts

3. Analyzing Continuous Courses of Conduct

PART FOUR A Proposed Code

CHAPTER VIII What a Culpability-Based Criminal Code Might Look Like

I. An Idealized Culpability-Based Criminal Code

A. LEGALLY PROTECTED INTERESTS

1. A Normative Defense of Unpacking Crimes

2. Which Interests?

B. CALCULATING CULPABILITY

1. Some Preliminaries

2. A First Attempt

II. From an Idealized Code to a Practical One: Implementing Our Theory in “the Real World”

A. WHAT WE ARE SEEKING TO REPLACE

1. Three Significant Problems with the Current State of Criminal Law

2. Do Our Current Criminal Codes Contain Rules?

B. IMPLEMENTING A PRACTICAL CODE

1. Rules versus Standards: In General

2. The Argument for Rules over Standards

3. Problems with Rules

4. An Empirical Experiment

C. INEVITABLE PROXY CRIMES

1. Recognizing the Alternatives

2. Enacting Proxy Crimes

D. LEGALITY QUESTIONS

1. Notice

2. Constraining Power

E. ENFORCEMENT PROBLEMS

1. Do We Unjustly Empower Prosecutors?

2. Reconciling Our Act Requirement with Concerns about Law Enforcement

F. PROCEDURAL, EVIDENTIARY, AND SENTENCING CONSIDERATIONS

1. Burdens of Proof and Evidentiary Rules

2. Plea Bargaining

3. Sentencing Considerations

Epilogue

Appendix Sample Initial Instructions (Prior to Calculation by Guidelines)

General instructions:

Defense of self and others:

In making this determination, I advise you that

Bibliography

Primary Materials

Secondary Materials

Index