Chapter
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
III. A Unified Conception of Criminal Culpability
A. UNDERSTANDING INSUFFICIENT CONCERN
1. How Many Categories Do We Need?
3. Bizarre Metaphysical Beliefs and Culpability
4. Deontological Norms and Consequentialist Justifications
1. The Holism of Risk Assessment
C. REASONS AND JUSTIFICATION
D. SINCERE, UNREASONABLE, AND RECKLESS BELIEFS AND THE CULPABILITY DETERMINATION
E. RECKLESSNESS AND ACT AGGREGATION
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
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
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
A. PERSONAL JUSTIFICATIONS AND HARD CHOICES
1. Personal Justifications
3. Duress, Preemptive Action, and Proportionality
5. A Possible Extension? Preemptive Collective Protection and Preventive Detention
C. IMPAIRED RATIONALITY EXCUSES
1. Excuses versus Exemptions
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
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?
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
2. Why Intentions Are Not Culpable Acts
II. Some Qualifications and Further Applications
A. WHEN PREPARATORY ACTS ARE ALSO LAST ACTS
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
1. A Brief Normative Defense
2. Disentangling Legally Protected Interests
1. Counting Willed Bodily Movements
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
B. CALCULATING CULPABILITY
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
4. An Empirical Experiment
C. INEVITABLE PROXY CRIMES
1. Recognizing the Alternatives
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
3. Sentencing Considerations
Appendix Sample Initial Instructions (Prior to Calculation by Guidelines)
Defense of self and others:
In making this determination, I advise you that