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Bandes on Alexander, Ferzan, & Morse on Culpability

By Lawrence Solum

Susan A. Bandes (DePaul University - College of Law) has posted Is it Immoral to Punish the Heedless and Clueless? (Law and Philosophy, 2010) on SSRN. Here is the abstract:

This essay, written for a symposium on the book Crime and Culpability: A Theory of Criminal Law, by Larry Alexander, Kim Ferzan and Stephen Morse, responds to the authors? argument that the criminal law should not punish negligent behavior. The authors argue that we are not morally culpable for taking risks of which we are unaware, even if a reasonable person would not have taken those risks. It follows, they argue, that negligent conduct should not be culpable, since punishing negligence would require holding people responsible when their failure to advert to a risk, however unreasonable, did not entail a conscious choice. Because they assume that negligent behavior lacks the element of choice and therefore falls below the threshold for culpability, they deem it improperly consequentialist to consider whether punishing negligence would promote the penal goal of communicating and enforcing norms for future conduct.

One obvious drawback of insulating negligent conduct from criminal liability is that it rewards heedless and clueless behavior. The actor who has somehow failed to advert to well-know risks is off the hook, while the actor who adverted to such risks and allowed the risky behavior anyway may be liable. Nevertheless, this paper does not argue that criminal negligence liability is necessarily a matter of good policy. It argues that the authors have improperly taken the policy debate off the table based on questionable assumptions about the nature of consciousness, choice and character. The authors? normative argument that negligence liability must be rejected as a threshold matter relies heavily on their descriptive assumption that the negligent actor is impervious to influence or correction--an assumption that is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience.

Full post as published by Legal Theory Blog on September 25, 2009 (boomark / email).