Crimes and Risks

Abstract

This dissertation analyzes three legal doctrines that regulate unintentional aspects of criminal conduct. Chapter one defends the influence the law grants to an action’s unintended results in determining the extent of the agent’s criminal liability. First, I critique the argument that criminal law’s general mens rea requirement allows a result to affect the extent of a defendant’s criminal liability only if he possesses mens rea with respect to that result. The rules that define offenses and the rules that specify sentences for individual criminal actions each guide conduct, but they do so differently. Effective offense definitions must be framed in terms of mental states, but effective sentencing rules need not be; therefore, mens rea must set the limits of liability, but the extent of liability need not depend on mens rea alone. Second, I argue that sentencing rules can most effectively guide offenders to reduce the risk that their offenses will unintentionally cause harm if those rules grade the seriousness of each offense based on its results, since the primary alternative, grading offenses based on their risk, requires methods of measuring and communicating risk that exceed the capacities of the criminal justice system. While chapter one addresses the extent of liability, chapters two and three address its scope: each presents an account of one of the two types of mens rea used to define unintentional crimes. Recklessness, the subject of chapter two, is often analyzed as requiring defendants to possess a belief (or similar mental state) directed towards the degree of risk an action creates. Defining offenses in terms of an agent’s beliefs about risk, however, guides individuals to evaluate actions in deliberation by estimating the degree of risk they create. And because individuals ordinarily cannot estimate risks accurately, such rules will not effectively guide them to reduce harm. Effective rules, I will argue, must identify prohibited actions in a different way—namely, through the features of those actions that make them unreasonably risky. The definition of recklessness does not itself identify those features directly; instead, by requiring individuals to comply with the standard of conduct of the law-abiding person, recklessness indirectly incorporates into law the social norms that regulate dangerous activities. To be reckless, then, defendants must recognize the features of their conduct in virtue of which it violates such a norm. Finally, chapter three analyzes negligence. Criminal negligence is paradoxical: even though culpability ordinarily requires advertence, negligent defendants are typically understood to be culpable for a risk they inadvertently create. Rather than rejecting culpability for negligence or expanding culpability beyond advertence, I dissolve the paradox by reconceptualizing negligence. Negligent defendants are culpable despite their failure to perceive one risk because they advert to a different risk—the risk that by failing to inquire before acting they will fail to uncover evidence of the risk that they do, in the end, actually fail to perceive. Negligence is epistemic recklessness, the culpable disregard of the risk of inadvertently performing a risky action. Though negligence, like recklessness, involves advertence to risk, it constitutes a distinct form of mens rea because it regulates a different aspect of conduct—the decision to inquire rather than the decision to act. And because omitting inquiry creates only a risk of a risk, negligence is systematically less risky than recklessness, and therefore less culpable.