Abstract
Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s “neutral prompt” and “counterfactual actual belief” criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as a concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples.
Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are “inactive” in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision.
Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s “unexercised capacity” theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted “if X” where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept.
The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent.
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Notes
Moore and Hurd also discuss this framing of risk problem.
Sometimes, to be sure, the actor will also believe that her situation or skill is exceptional such that the generalization simply does not apply to her. Very often, however, she will not believe this. A similar difficulty arises when we consider what risk the actor “chose” to create. Husak asserts: “Although [Joe] unquestionably chose to create a risky situation by leaving his baby unattended, it seems strained to say that he chose to risk harm to his son.” But the proposition in the first clause is not unquestionable. What is indisputable is that Joe chose to answer a phone call, and chose to leave his baby unattended. He chose these things, despite the risks that he thereby (objectively) created. It does not follow that he “chose” to create a risk to his child. See King (2009) at 582.
Husak does not mention the truthfulness condition but it is implicit in his account.
Consider the counterfactual actual belief criterion. Joe’s failure to rescue the child could indeed reflect his lack of a belief that the child is in danger. But it might instead suggest that he is not the loving, properly motivated parent we (and perhaps even he) initially assumed he was. Moreover, even if this criterion makes sense in the abstract, one might doubt its application in this case. Perhaps Joe is an extraordinarily devoted parent who honestly believed that briefly answering a phone created no risk of harm to his child.
In the tort law context, a powerful assertion of the arbitrariness objection is Abraham (2001).
Westen (2008).
Another strategy, Husak notes, is to distinguish “belief that p” from the narrower “conscious that p” or “aware that p.” But I agree that this strategy might not solve the problem. The narrower constructions might be too restrictive, at least for legal purposes. For what it is worth, the influential Model Penal Code uses the terms “belief,” “conscious,” and “aware,” in its definitions of recklessness and knowledge, without any apparent intention of distinguishing their meanings. Model Penal Code (1962) §§2.02(2), 2.02(7).
Thus, one reason we punish one who knowingly harms more than one who recklessly harms is that we cannot be sure that the merely reckless actor would have been willing to act if he had believed that the harm was much more likely to occur. But in some cases, especially some willful blindness cases, we are more confident that the answer to this counterfactual is yes, and we may thus be justified in treating the reckless actor as knowing. See Simons (2002), at 264–296. For an argument against employing counterfactual criteria in this way, see Ferzan (2001), at 622–623.
A person who is willing to deviate slightly from reasonable care would often not be willing to deviate very substantially from that normative standard. Exceeding the highway speed limit by 10 mph does not suggest that one would exceed the speed limit by 40 mph. And X, who is actually aware of none of the facts that should put him on notice that his conduct is risky, is ordinarily less culpable than Y, who is aware of some or many of those facts, for we cannot assume that X, if aware, would take the risk that Y takes. (Suppose X unreasonably fails to notice any unusual health symptoms in his child, while Y notices minor symptoms that he foolishly believes are not serious).
People v. Williams (1971).
Husak endorses a version of H.L.A. Hart’s theory, that a failure to exercise a capacity to control the results of one’s conduct is sometimes culpable: specifically, Husak tentatively suggests, that failure is culpable when one could alter those possible results if given a reason to do so. As stated, this suggestion is incomplete. What counts as having been “given a reason”? As having the “capacity” to respond to such reasons? Suppose, while I am in a state of furious anger, a bystander tries to explain why I should not strike out at the motorist who has just recklessly destroyed my car. Does my limited (or nonexistent) capacity to respond to this reason in the circumstances really diminish my culpability? Or suppose I am sufficiently selfish, even when not angered, that I do not treat the bystander’s reason as a reason for me not to strike the other?
In law, the analogous question is whether engaging in a particular type of conduct that you believe to be a crime renders you liable for attempt. The short legal answer is no, for this is an instance of true legal impossibility; but the question whether the law should always, sometimes, or never convict such an actor is a matter of some complexity.
In her Drug Gang example, Smith supposes that Miguel, a member of the gang, is motivated in part by the thrill of doing what he believes to be all-things-considered wrong. But it is far more likely that he is motivated by the thrill of doing something he believes to be illegal, or that he believes that society condemns as immoral. He might well not see his own actions as immoral. Religious believers, conscience-stricken adults, and philosophers are much more likely to conceive of their actions in such explicitly moralistic terms than are teenage gang members. The phenomenology of the character Shelly in Smith’s later Intern example, who “has no thought about what is right or wrong in making her choice”, strikes me as far more realistic.
Smith recognizes that we sometimes make “hair trigger” decisions “before thought, or broader consideration, has the opportunity to kick in.” But she denies that we have moral responsibility for such decisions.
Such hair trigger cases have a very different moral tone from ones in which many of an agent’s relevant motives come to bear on his decision, but a single morally flawed motive overwhelms competing morally good motives. These “overwhelming” type cases are ones in which we properly hold the agent blameworthy, unlike the cases in which the potentially competing motives are never even activated.
Again, however, I think this approach is too forgiving. A person might be so angry that her usual empathetic motives and generous desires “are never even activated,” but often she is still to blame for not controlling that anger.
The example is very loosely based on the facts of the Bernhard Goetz case. People v. Goetz (1986). In the actual case, two of the youths approached Goetz suddenly in a crowded subway, and one of them demanded money from him; Goetz responded by firing his gun at all four of the youths.
I agree because, on a plausible interpretation of the Model Penal Code, and on a defensible normative view of the minimum culpability required for recklessness, recklessness requires, not just awareness of a risk of harm, no matter how miniscule, but awareness of a substantial risk of harm. See Simons (2003), at 189–193. What “substantial” does and should mean is, to be sure, a difficult question.
The authors aptly criticize Alexander and Ferzan for conflating these inquiries. Alexander and Ferzan seem to claim that we can advert to a risk only if we can choose to advert to the risk, yet actors only rarely choose to advert to a risk. Moore and Hurd are right to respond that this begs the question: for it might turn out that there are specifiable and defensible conditions, other than choice, on the capacity to advert to risk.
“Until X is specified,” they claim, “judgments of unexercised capacity lack sense; once it is specified, judgments of unexercised capacity have no justificatory work left to do.”
The authors appear to criticize Hart for asserting that culpability depends merely on unexercised capacity, but this criticism is unfounded; Hart does recognize that the ultimate criterion of negligence considers whether the failure to exercise that capacity is unreasonable.
Hart (2008), at 152–156.
The authors also worry about character theories insofar as one person’s vice might be another’s virtue. Although this is a valid concern in some contexts in which the state is enforcing a particular view of virtue and vice, here I think it has little purchase, for I doubt that reasonable but significant disagreement very often actually occurs with respect to whether specific vices are relevant to conduct that creates serious risks of harms to others. “I was so hungry that I took my eyes off the road for a few seconds to grab more fries”; most will agree that this is blameworthy, even if they are uncertain whether or to what extent gluttony is a vice or is blameworthy as a general matter.
Simons (2002) at 308–309.
To be sure, we should take this worry more seriously when the actor has (albeit unknowingly) taken substantial steps towards causing the relevant harm or wrong. If you are actually driving the car with bad brakes, should you be guilty of attempted negligent homicide? This raises distinct concerns, however. And we might address these concerns by limiting attempt liability to purposeful and knowing (and perhaps reckless) risk-creation, notwithstanding strong arguments in favor of consistent attempt liability for actors who proceed to the very last act of risk-creation, whether the actor was purposeful, negligent, or something in between.
Another argument they consider is George Sher’s claim that inadvertence is blameworthy when it proceeds from the actor’s constitutive attitudes, dispositions, and traits. Their criticisms of this claim are potent and persuasive.
The authors claim that the rules in question cannot be understood as deontological prohibitions, because the rules are not categorical and are sometimes subject to consequentialist overrides; thus, the rules must be interpreted as epistemic rules of thumb that give useful guidance for conforming with cost-benefit consequentialist principles. This claim is dubious in two ways. Deontological principles need not be categorical. And, even in the particular context of rules for permissible risks, the principles justifying the proper tradeoff of benefits and disadvantages of precautions against risk need not be entirely consequentialist in structure and content (just as the defenses of self-defense and necessity need not be consequentialist). See Simons (2008), at 1188–1190; Simons (1996), at 298–299.
See Simons (1997), at 1121–1125.
I would take the point much further, however; other types of culpability, especially recklessness, are also plausibly viewed as pluralistic. See generally Simons (1992).
The Code does use different language in characterizing the standard against which the gross deviation is measured—the “law-abiding” person in the case of recklessness, and the “reasonable” person in the case of negligence. But the authors’ emphasis on this ambiguous difference in language is a thin reed to rely upon. It is not at all clear that grossly deviating from what a “reasonable” person would do is a less extreme deviation than grossly deviating from what a “law-abiding” person would do. Model Penal Code (1962), §2.02(2)(c), (d). Others agree that this distinction in language was probably not meant to be significant. Treiman (1981), at 348–349.
They refer several times to Judge Magruder’s distinction between being a “fool” (ordinary negligence) and a “damned fool” (gross negligence), and they suggest that recklessness requires that one be a “damned damned fool” or (in Magruder’s phrase) a “God-damned fool.” Lord help us if this language becomes part of a jury instruction.
See Simons (2003), at 187–188.
This is in part because the Code’s definition of “knowledge” with respect to a result element is already a bit watered down, as compared to its initial definition of “knowledge” with respect to a circumstance: the first requires only “practical certainty” that the result will follow, while the latter requires “awareness” that a circumstance exists. Model Penal Code (1962) §2.02(2) (b).
Thus, Husak claims that “a negligent actor who forgets something important exhibits insufficient concern for others,” though “less obviously than someone who causes harm intentionally, knowingly, or recklessly.” Negligence, says, Husak, is a lesser mode of culpability, but it is such a mode. Smith speaks frequently of a “reprehensible configuration of desires,” an attitudinal or conative mode of culpability that can be captured by the “insufficient concern” idea. And Moore and Hurd, in their analysis of character-based and motivational flaws, discuss indifference.
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The author thanks Doug Husak for his useful comments.
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Simons, K.W. When is Negligent Inadvertence Culpable?. Criminal Law, Philosophy 5, 97–114 (2011). https://doi.org/10.1007/s11572-011-9116-y
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DOI: https://doi.org/10.1007/s11572-011-9116-y