A. PRELIMINARYCONSIDERATIONS
Underlying our defense of the last-act test are three separate, but related, claims. First, the criminal law – and the morality that underlies it – aims to infl uence the actor’s reasons for action. Second, an actor can change his mind about imposing a risk of harm to others until he believes he has actually unleashed that risk of harm and can no longer control it through further practical reasoning eventuating in acts of will. Th ird, an actor should be punished only for what he has done and not what he will do.
In determining what should count as a culpable act, we should thus fi rst take account of the way that law and morality aim to infl uence conduct: actors act for reasons, and the criminal law and its underlying morality refl ect that there are powerful reasons to abstain from engag- ing in unduly risky behavior. Th e law and its underlying morality thus infl uence (or should infl uence) the actor’s practical reasoning.
Not only do the law and morality seek to infl uence the actor’s reasons for action, but they can also continue to infl uence these reasons until the point at which the actor engages in some conduct that (he believes) has unleashed a risk over which he no longer has complete control. To
1 Th is chapter draws from Larry Alexander and Kimberly D. Kessler, “Mens Rea and Inchoate Crimes,” 87 J. Crim. L. & Criminology 1138 (1997).
illustrate, if the actor is thinking about shooting his victim, he can still change his mind. However, once the actor has fi red the gun, unless he is Superman (“faster than a speeding bullet”), he can no longer prevent the result from occurring or reduce the risk thereof.
It may be objected that our theory of control is over- and underin- clusive. Th e actor may not be able to control his reasoning and may be able to control the result. For example, he may not have complete con- trol over whether he will decide to engage in the action – perhaps he will suddenly become distracted – and he may have control over whether the result occurs, as when he can snuff out the fuse that he has lit. But there is an important diff erence between these cases; this diff erence lies in the ability for reason alone to aff ect whether the outcome occurs. In the former case, although the actor may (fortuitously for him) forget his criminal plans, these plans were still subject to revision through practi- cal reasoning; however, in the latter case, although the actor may decide to take another action in order to try to avert the harm, merely changing his mind is not alone suffi cient to prevent the harm from occurring.2
Th is brings us to our third point: the law should not punish an actor on the basis of a prediction that the actor will ultimately engage in criminal conduct. When determining whether an actus reus formula- tion is suffi cient to demonstrate that the actor has acted culpably, the law cannot focus on what the action reveals about what the actor might do; rather, the action itself – what the actor has done – must ground blame and punishment. For the reasons discussed here, we believe that only the last-act formulation punishes the actor for what she has done.
B. INTENTIONS
Th e starting point along the continuum is with the actor’s criminal intention. In our view, intentions cannot themselves constitute culpable
2 Th e actor who lights the fuse in order to burn down another’s property or blow up an inhab- ited building is culpable at the moment he lights it because, even if he changes his mind, he may not be able to snuff out the fuse. He may black out, or be prevented by another, etc.
Even Superman commits a culpable act by fi ring a gun because the sudden appearance of kryptonite may prevent him from stopping the speeding bullet. And, of course, when the lit fuse passes the point that the actor believes puts it completely beyond his power of recall, his culpability is at its zenith.
and hence punishable acts. In the fi rst part of this section, we argue that the formation of an intention is an act. In the second part of this sec- tion, we explain why, despite the fact that the formation of an intention is an act, it cannot be a culpable act. Specifi cally, intentions are diffi cult to distinguish from fantasies and desires; intentions may involve diff er- ing levels of commitment to the goal; the future conditions in which the intention will be acted upon are opaque; and intentions are revocable.
1. Are Intentions Acts?
A preliminary question is whether forming intentions is an action at all – and thus a potentially culpable one – or are intentions merely the states of mind that accompany other acts? Th ere are, of course, many kinds of mental acts that are performed intentionally. Mathematical calculations, silent prayers, and attempts to remember fall into this category. Are intentions about future conduct like this, so that they can be criticized, not just for the traits of character they reveal – as would an involuntary fl ash of anger at seeing one’s spouse acting fl irtatiously around others – but as culpable acts in themselves? Are intentions sub- ject to direct voluntary control in the way that acting on intentions is subject to direct voluntary control?
Th e view that an intention might itself be a culpable act rests on two assumptions. First, this view assumes that forming an intention alters the world in some way that is material to the criminal law’s concerns.
Th at assumption is surely met, at least under many standard philosoph- ical accounts of intentions. Under those accounts, intentions alter the balance of reasons for the actor. Before he forms the intention, he has reasons A, B, and C in support of doing the act and reasons X, Y, and Z against doing it. Aft er he forms the intention, he has a new reason for doing the act, namely, the intention itself, a reason that makes the act more eligible and hence, if the actor is rational, more likely.3
Second, this view assumes that forming intentions not only changes the world in the way indicated but also is something we do inten tionally.
3 See Michael E. Bratman, Intentions, Plans, and Practical Reason 80 (1987); Joseph Raz, Practical Reasons and Norms 65–71 (1975). For a somewhat diff erent view that holds deci- sions to act to be actions, but not reason-altering actions, see Th omas Pink, Th e Psychology of Freedom 125–128, 137–165 (1996).
If this assumption is granted, then we can say that forming a culpable intention – an intention to commit a future culpable act – is itself a culpable act.
Th e argument we are considering here is not that it is the intention itself that is the culpable act but rather the formation of the intention.4 To illustrate, suppose a person has a certain belief-desire set. Ordinarily, this person will form an intention to act on the basis of his evaluation of his beliefs and desires and a decision regarding what is the best course of action to take in light of them.5 In pursuance of this decision, the actor forms an intention, a plan to engage in that course of action. Hence, although intending, by itself, is not an act but rather a mental state, the mental act of deciding what to intend is potentially a culpable act.6 2. Why Intentions Are Not Culpable Acts
Even if intentions are acts, we must still ask whether they are culpable acts about which the criminal law should be concerned. In one respect, it would make the burden of our argument in Chapter 4 with respect to culpable aggressors (CAs) easier were forming the intent to act culpa- bly itself culpable. (We instead located the culpability of CAs in their unleashing the risk of creating fear.) Nevertheless, despite making defense against CAs easier to justify, we believe that there are a number
4 See Bratman, supra note 3, at 103 (implicitly acknowledging that forming an intention is an action while discussing the Toxin Puzzle, in which a Genie off ers you a million dollars if and when you form the intention to drink a very unpleasant but harmless potion aft er you have received the money: “[T]he million-dollar reason is a reason for a present action of causing yourself so to intend; this reason is relevant to deliberation about whether so to act now, not to whether to drink the toxin later”). For a diff erent view of the Toxin Puzzle, see Pink, supra note 3, at 137–165.
5 See Michael S. Moore, Act and Crime: Th e Philosophy of Action and Its Implications for Criminal Law 140 (1993) (noting that “[i]n the face of confl ict between prima facie desires, there seems to be a resolution when the actor decides which of the alternative courses of action he is going to pursue”).
6 Th e triggering of this decision need not be an intentional action itself. Otherwise the objec- tion would be that of regress: one must intend to intend, will to will, decide to decide. Cf. id.
at 115 (discussing Gilbert Ryle, Th e Concept of Mind 67 [1949]). Our everyday lives present us with many situations where we make choices without deciding that we should fi rst think about choosing. Th us, a belief, a thought, or desire, none of which is controllable, might trig- ger the deliberations. Nevertheless, the actor does have control over his deliberations and knows right from wrong at the point at which he decides what he plans to do. If John is con- fronted with his wife sleeping with his best friend, he might suddenly think that he wants to kill her, but he still controls whatever decision he might make in light of that desire.
of reasons to reject the view that forming the intention to impose risks should be suffi cient for criminal liability.
a. Distinguishing Intentions from Desires: Th e fi rst concern is one of line drawing. Gerald Dworkin and David Blumenfeld make the point that the lines between intending, on the one hand, and fantasizing, wishing, desiring, and wanting, on the other, even if philosophically clear, are quite diffi cult to draw as a practical matter, even for the actor himself:
Th is . . . objection has two aspects, the diffi culty of the authorities distin- guishing between fantasying, wishing, etc. and even more importantly the diffi culties the individual would have in identifying the nature of his emotional and mental set. Would we not be constantly worried about the nature of our mental life? Am I only wishing my mother-in- law were dead? Perhaps I have gone further. Th e resultant guilt would tend to impoverish and stultify the emotional life.7
Th is objection, of course, has no purchase when we are dealing with com- pleted crimes and completed attempts. Nor does it apply to cases where one solicits or encourages another to commit a crime, which we later argue should count as recklessness toward the victim even in the absence of a pur- pose to harm if the criteria for recklessness are otherwise present. It does apply forcefully, however, to incomplete attempts, where it is the actor’s attitude toward his own future conduct that is at issue. Th e actor may have diffi culty distinguishing a mere fl ight of fantasy from a settled intention.
Th ere are two worries here, one epistemic and one normative. Th e fi rst is that because forming an intention is an act of will, but wishes, desires, and fantasies are not, an actor may fear being punished for something that is not itself an “act,” and most certainly not a culpable act, because he fears the state will not be able to distinguish between the two. Th e second concern discussed by Dworkin and Blumenfeld is that if actors fear being punished even for these thoughts, they will be con- stantly policing themselves in a way that diminishes the overall quality of actors’ lives. Although this concern is external to retributive justice, it still presents a signifi cant worry. If in our eff orts to reach the culpa- ble, we also signifi cantly infringe upon the freedom of the nonculpable
7 Gerald Dworkin and David Blumenfeld, “Punishment for Intentions,” 75 Mind 396, 401 (1966).
(those who have only fantasies and never intentions), then the achieve- ment of retributive justice may come at too great a cost.
b. Th e Conditionality of Intentions and the Opacity of Future Circumstances:
In almost every conceivable circumstance, when we form an intention to engage in some future conduct, our intention to do so is conditional.
Th at is, we intend to engage in that conduct only under some conditions and not under others. We intend to drive to the store at three o’clock – but only if the roads are not fl ooded, the store is open today, we do not fi nd that we already possess the items we intended to purchase, and so forth. Some of the conditions may negate the culpability of the act we intend: we intend to shoot Susan – but only if she is about to blow up a bus full of children. Sometimes the conditions may not negate the culpa- bility of the intended act but make the probability that the intended act will occur and also be culpable extremely unlikely: Roger intends to steal the Mona Lisa, but only if it is in the Met (not the Louvre), and only if it is not heavily guarded. Sometimes the conditions are present in the actor’s mind when he forms the intention, so that his conscious intention is to do X on condition Y. Oft en, however, the conditions are not conscious but nonetheless operative: for example, almost no thief who forms an intent to steal a television set would do so aft er having inherited a billion dollars, even if that latter possibility never occurred to him.
Now the conditionality of intentions makes assessing their culpabil- ity less straightforward than assessing the culpability of the intended acts themselves. As we have argued, the latter are assessed by asking what risks of what harms did the actor believe he was imposing and what reasons did he believe (with what degree of certainty) existed that might justify that risk imposition. But before that act, the actor cannot be certain that he will so act, nor can he be certain about what culpability-enhancing or culpability-mitigating facts will obtain at the time of the act.
So suppose Roger will be culpable at level C if he takes what he believes to be the Mona Lisa from the Met. And suppose that he pres- ently intends to do so, but only if the Mona Lisa is actually in the Met (quite unlikely), only if it is not heavily guarded (quite unlikely), only if he does not inherit a billion dollars tomorrow, and so forth. What is Roger’s culpability now, the time when he forms that conditional inten- tion to steal the Mona Lisa?
Or suppose Maggie intends to drive to her child’s school to pick him up, and she intends to get there in ten minutes. If traffi c is moving freely, the road is not icy, and so on, Maggie can get there in ten minutes with- out recklessly endangering others. And her intention to get there in ten minutes is not unconditional: she would not drive through a Boy Scout parade on the road, mow down pedestrians crossing at crosswalks, and so on. Still, there are some circumstances, quite unlikely but still possible, in which Maggie would drive recklessly to some degree, to which she may or may not be adverting when she forms the intention to get to the school in ten minutes. How should we assess Maggie’s culpability for so intending?
Perhaps there is a solution to this problem of the conditionality of intentions. For example, perhaps we should assess the culpability of the actor’s intention by asking what probability did he attach to his acting on the intention – or, what is the same thing, what probability did he attach to the conditions obtaining that governed whether he would act? (Th is, of course, will be diffi cult and perhaps impossible for those conditions to which the actor did not consciously advert but nonetheless were pres- ent dispositionally.) Th en we could ask what culpability-enhancing and culpability-mitigating conditions did the actor believe would exist at the time of the intended act, and with what probabilities. Th e culpability of intending the act would be the average of the culpability of the various sce- narios the actor envisioned might obtain at the time of the intended act, weighted by the probabilities he assigned each scenario, and discounted by the probability he attached to his actually engaging in the intended act (the probability that the defeating conditions would not exist).
If this “solution” appears impossibly complex – and it is – the prob- lems of assessing the culpability of intending a (possibly) culpable future act are only beginning. For the actor may assess the probabilities diff erently at diff erent points in time. Roger may, at the time he forms the intention to steal the Mona Lisa, believe that it is quite unlikely that the Met possesses it. Later, he may assess that likelihood as higher (or lower). Similarly, over time he may alter his assessment of the likelihood of its being heavily guarded. Th us, Roger’s estimate of the likelihood that he will ever execute his intention to steal the Mona Lisa will vary over time. Is Roger’s culpability dependent on the point in time at which he is arrested? Could he have been more or less culpable if he had been arrested sooner (or later)? And is culpability assessed just at the moment of arrest, or is it the average of his culpability from the moment he
formed the intention until the moment of arrest, which, too, will vary with the time of the arrest?
What goes for the actor’s estimate of the probability that he will exe- cute the culpable intention also goes for his beliefs about the culpabil- ity-relevant facts that will obtain at the time of the intended act. Th ose beliefs may change during the time in which the intention is held.
For instance, assume that Heidi decides to blow up a football sta- dium to protest the allocation of funds to the football team instead of a new law school building. At that point in time, she may not have yet considered whether she will blow up the stadium when it is full of peo- ple or when it is empty. She may be debating whether to wait until there is a home team present, or whether to ensure that it is a day when no one is in the area. But even if Heidi has resolved to blow up the stadium at a specifi c time, her beliefs about the attendant risks and possible justify- ing reasons may change several times between the time she forms the intent and the time she detonates the bomb: she may believe at one time that the stadium will be full of fans, at another that it will be empty, at another that it will be occupied only by a terrorist cell, and so on. If she were to detonate the bomb at any of these times, her culpability for doing so would vary enormously – from extremely culpable to possibly not culpable at all in the case of the terrorist cell. Again, is Heidi’s cul- pability determined by her beliefs at the time she is arrested – in which case it may be high if she is arrested at t1 but nonexistent if arrested at t2 –or is it determined by the average culpability of her intention from the time of its formation to the time of her arrest? In either case, because her beliefs about risks and reasons will change over time, her culpability level will depend on when she is arrested. (And how does one “average”
a culpable intention, as when Heidi believes the stadium will be full of fans, and a justifi able one, as when she believes the stadium will contain no one but a dangerous terrorist cell?)
Indeed, not only may Heidi’s beliefs about risks and reasons change over time, but she simply may have formed no belief whatsoever about the degree of risk that she will ultimately impose, leaving this “detail”
to be fi lled in later. Th e ultimate risks and reasons for the intended action and therefore its culpability will be indeterminate at the moment of forming the intention.
Or take another case where an intention exists at t1, but its justifi - ability, and thus its culpability, fl uctuates over time. Leo looks at his