Indeed, because people can make momentary mistakes, and because acts of clumsiness and stupidity hardly seem to be the sort of things for which we wish to hold people criminally liable, even those theorists in favor of punishing for negligence oft en seek to restrict its reach. Th at is, even for these theorists, the failure to live up to the “reasonable person”
test is not alone suffi cient for criminal liability. Th e challenge for those who wish to punish for negligence, then, is to fi nd a principled way to distinguish those people whose substandard conduct renders them criminally liable from those who do not.
A. SIMONS’SCULPABLEINDIFFERENCE
Ken Simons argues that it is appropriate to hold a negligent actor account- able when she is culpably indiff erent. Assume Alice and Betty both fail to appreciate a particular risk while they are driving. Alice fails to do so
5 To be fair, the proponent of negligence liability requires that the risk be unjustifi able. Our view, that one is not culpable for taking risks of which we are unaware, perforce, extends to the subset of unjustifi ed risks.
6 It also does not help to say the actor should have gotten more information before he acted.
Sometimes, when there is time to wait, the actor will be reckless for acting rather than waiting and inquiring further. He will be aware that even though he now perceives the risks of his acting to be low, waiting will reveal whether his perception of the risk is war- ranted. If his reasons for not waiting are insuffi cient to justify acting even in the face of the low risk that he perceives, his taking the low risk is unjustifi able. But again, all that shows is that the actor was reckless. It is not a case of negligence.
because she is distracted by a call that a friend is in the hospital. Betty fails to do so because she is putting on lipstick using her rear-view mirror.
Whom should the criminal law punish? In an early article, Simons argued that the determination should be made using a counterfactual test: if the person had been aware of the risk, would she have proceeded anyway?7
Unfortunately, this test raises new diffi culties because it confl icts with our conception of free will (or, perhaps more aptly, our view that actors should be treated as capable of responding to the right reasons at the critical moment of action).8 It punishes an actor not for what she has done, but for the choice she might have made had she been presented with the choice. Under Simons’s theory, we should punish Betty if she has the sort of character on the basis of which we would predict that she would choose to take this risk had she adverted to it. Yet, many actors in a given set of circumstances might resort to crime, but we should not punish them until they have actually made that choice and acted on it.
Responsibility should not turn on the prediction of future choices. Nor should it turn on assessments of the types of people we are.
Indeed, Simons recognized that his theory of culpable indiff erence creates a “signifi cance in action” problem.9 Th at is, feelings about caus- ing harm are passive, so how does one tie culpable indiff erence to an act? Simons argued that perhaps this desire (or lack thereof) must fi gure as a factor in the actor’s practical reasoning in performing the action.10 Such an approach, however, looks as if it collapses culpable indiff erence into our conception of recklessness. Th e actor is making a choice that involves consciously disregarding the interests of others and is indiff er- ent to these interests in that sense.
Alternatively, Simons asserted that the relationship between indiff erence and the actor’s choice need only be causal.11 If by causal Simons meant that the indiff erence fi gured causally in the actor’s deliberations without fi guring consciously in them, then, as Michael
7 Kenneth W. Simons, “Culpability and Retributive Th eory: Th e Problem of Criminal Negligence,” 5 J. Contemp. Legal Issues 365 (1994).
8 Th is section draws from Kimberly Kessler Ferzan, “Opaque Recklessness,” 91 J. Crim. L.
& Criminology 597 (2001) and Kimberly Kessler Ferzan, “Don’t Abandon the Model Penal Code Yet! Th inking Th rough Simons’s Rethinking,” 6 Buff . Crim. L. Rev. 185 (2002).
9 Simons, supra 7, at 391–394.
10 Id. at 392.
11 Id.
Moore has noted, there are problems with relying on that type of causal approach. For example, when a man forgets his appointment with his girlfriend, “this failure to arrive at the appointed time shows that he does not care, not that he adopted this behavior as a means to show the woman that he no longer cares. His emotion, or lack of it, explains his behavior, but does not mean that he chose, even unconsciously, that spe- cifi c behavior as the means of achieving some particular desire.”12
A causal account, moreover, is inherently problematic, as it opens the fl oodgates to problems associated with determinism. If everything is caused, are we then morally responsible for everything caused through our agency? Or are we responsible for nothing?
In his most recent work on the subject, Simons adopts a six-factor test to resolve the “signifi cance in action” problem.13 Among the fac- tors that he proposes is the “defl ationary” requirement: “Th e basis of this prediction [that the actor would have acted in the face of a greater risk] is that when the actor is initially prepared to take the action, he possess the ‘higher’ mental state of knowledge, but by the time he acts, his mental state has ‘defl ated’ to recklessness.”14 In contrast, Simons rejects punishing “infl ated” mental states, where we predict the actor would have continued in the face of a greater risk because of “the prin- ciple of respecting the actor’s autonomy.”15 Th is restriction is important.
However, for us, it does not go far enough, whereas for negligence pro- ponents it may go too far. For the latter, Simons’s test fails to punish negligent Betty because that would require “infl ating” her culpability.
On the other hand, we fail to see why Simons’s reasoning that “the actor should be free to change his mind, even if at one point in time he fi rmly intends to commit a serious crime” does not apply as well to “defl ation- ary cases” in which the actor does not act in the face of a greater risk but simply the lesser one that he now perceives.16 In a defl ationary case,
12 Michael S. Moore, “Responsibility and the Unconscious,” 53 S. Cal. L. Rev. 1563, 1631 (1980).
13 Kenneth W. Simons, “Does Punishment for ‘Culpable Indiff erence’ Simply Punish for ‘Bad Character’? Examining the Requisite Connection between Mens Rea and Actus Reus,” 6 Buff . Crim. L. Rev. 219 (2002).
14 Id. at 275.
15 Id. at 280.
16 Simons views his account to be an extension of Alan Michaels’s acceptance theory. See Alan Michaels, “Acceptance: Th e Missing Mental State,” 71 S. Cal. L. Rev. 953 (1998). In our
we may have better evidence about what an actor would have otherwise done, but punishment in such a case is still punishment for a choice the actor did not make but (very well) might have made under diff er- ent circumstances. From either perspective, Simons takes an untenable middle position.
B. TADROS’SCHARACTERAPPROACH
Victor Tadros has also sought to narrow negligence.17 He claims, fi rst, that as agents, what we believe refl ects on our character. We are there- fore responsible for those things we believe and do not believe if those beliefs are attributable to our virtues and vices. Second, of those beliefs (or lack thereof) for which we are responsible, we should be held crimi- nally responsible for those beliefs that manifest insuffi cient concern for others’ interests.
We have our doubts about both parts of this test.18 First, consider Tadros’s argument that we are responsible for the way that we form beliefs. According to Tadros, our belief formation refl ects our character, and we are responsible for those actions that refl ect our character. He further claims that the “character” for which we are responsible is evi- denced by our desires, including not only those desires with which we identify but also those desires that are alien to us if we make no attempt to change them.
But there is a signifi cant gap between our omitting to get rid of a desire and our actually causing harm to another. First, we might ask at what point the actor becomes aware of this vicious trait. Sometimes we learn about our values only when we act. (Nor would hours of navel gaz- ing or therapy usefully help us to divine some of our own values.) If we do not know we have a desire, how can we be said to accept it? Second, the very character trait that leads to insensitivity to others may prevent
view, Michaels’s account is quite diff erent as it seeks to track an actual psychological state of the actor – not to punish the actor for a mental state she would have otherwise had. See Kimberly Kessler Ferzan, “Holistic Culpability,” 28 Cardozo L. Rev. 2523, 2531–2532 (2007).
Indeed, Michaels himself does not seek to extend acceptance beyond those cases in which the actor is already aware of the risk. Michaels, supra note 16, at 962 n.26.
17 Victor Tadros, Criminal Responsibility ch. 9 (2005).
18 Th is section draws from Kimberly Kessler Ferzan, “Act, Agency, and Indiff erence: Th e Foundations of Criminal Responsibility,” 10 New Crim. L. Rev. 441 (2007).
the actor from recognizing her own character fl aws. Finally, even if we know we have a particular desire, is it fair to say that we know what its implications are? How oft en will an actor recognize that her fl aws could result in harm to other people?
As for the second part of the test, we are uncertain as to how an act can manifest insuffi cient concern for others in the absence of some sort of culpable choice by the actor. Th e driver who believes that she can put on mascara while driving may have a fl awed character, but how exactly is it that her action manifests her insuffi cient concern? Tadros has the very same “signifi cance in action” problem that we saw with Simons’s approach.
C. GARVEY’SDOXASTICSELF-CONTROLTHEORY
Stephen Garvey has recently produced a sophisticated argument for why some cases of inadvertence to risk are culpable.19 To the question of how retributive punishment of those who inadvertently create lethal risks can be warranted, Garvey gives this reply:
Th e answer I propose is this: An actor who creates a risk of causing death but who was unaware of that risk is fairly subject to retribu- tive punishment if he was either nonwillfully ignorant or self-deceived with respect to the existence of the risk, and if such ignorance or self-deception was due to the causal infl uence of a desire he should have controlled. Th e culpability of such an actor does not consist in any choice to do wrong, but rather in the culpable failure to exercise doxastic self-control, i.e., control over desires that infl uence the forma- tion and awareness of one’s beliefs. An actor who is nonwillfully igno- rant allows desire to preclude him from forming the belief that he is imposing a risk of death when the evidence available to him supports the formation of that belief, while an actor who is self-deceived forms that belief but allows desire to prevent him from becoming aware of it. In either case the actor could and should have controlled the way- ward desire, thereby allowing the relevant belief to form and surface into awareness.20
19 Stephen P. Garvey, “What’s Wrong with Involuntary Manslaughter?” 85 Tex. L. Rev. 333 (2006).
20 Id. at 337–338.
Garvey goes on to argue that not just any desire that prevents one from becoming consciously aware of a risk that one either does subcon- sciously recognize or possesses the information required for recogniz- ing suffi ces for culpability. He contrasts the case of Walter and Bernice Williams, whose desire not to have their son Walter taken from them by the welfare authorities perhaps prevented them from perceiving Walter’s urgent need for medical care and the risk of death he faced, with the fi ctitious Sam and Tiff any, whose desire to further social climbing by putting on “the party of the decade” caused them to fail to recognize a similar risk to their child.21 For Garvey, the less admirable desire of Sam and Tiff any, given its causal role in their not adverting to the risk to their son, renders them culpable for their inadvertence, while the Williams case is a much closer call.
Garvey makes it clear that no one deserves punishment merely for possessing base or nonadmirable desires.22 It is only when the desire interferes with the actor’s perception of risk that culpability ensues. Th e actor in that case is culpable because he does not resist the desire that blocks his formation of the belief about risk that he otherwise would form. Th e actor has failed to exercise “doxastic self-control.” 23
But what puts the actor on notice that he should exercise such doxas- tic self-control? For Garvey, it is the awareness that his act is somewhat (but not unduly and hence culpably) risky.24
All of our acts are potentially risky, however. Suppose Sam and Tiff any recognize that there is some risk their son needs prompt medical attention. Th ey would not be any diff erent from any parent who rightfully does not rush her child to the pediatrician at the drop of a symptom. (Any common complaint – a headache, a sore throat, an upset stomach – can be the sign of an emergency, although it usu- ally is not; and we do not deem the average parent, who surmises “it’s just a cold,” reckless for not seeking immediate medical attention.) So why then would Sam and Tiff any be culpable for continuing with their party planning?
21 State v. Williams, 484 P.2d 1167 (Wash. Ct. App. 1971); Garvey, supra note 19, at 333–337.
22 See Garvey, supra note 19, at 362–363.
23 Id. at 365.
24 Id. at 368–369.
Garvey’s argument is fatally circular. One only has a reason to control the desires that might interfere with one’s perception of risks if those desires are preventing you from perceiving risks. But if one can- not perceive the risks, one has no (internal) reason to control the desires.
Th e desires may blind the actor to the risks he is imposing. But if they do, they likewise blind him to the reasons he has to control them.
Or, to put the point another way, Garvey’s self-deception view confl ates a notion of agency that focuses on one’s conscious decision- making abilities with a notion of agency that includes conscious and unconscious desires. Blameworthiness, as Garvey concedes, rests on the fi rst notion of agency, but the inappropriate desires are found within the second, broader agency account. Th erefore, Garvey cannot maintain (as he does) that the actor is to blame for not controlling his self-deceiving desires, the very existence of which blind him (in the narrow agency sense) to both the desires’ existence and the reasons to act otherwise.