evaluate correctly the willful blindness cases and does not tempt us to distort them into cases of knowledge.18

B. PURPOSE

A person acts with criminal purpose with respect to the conduct or result elements of an offense if “it is his conscious object to engage in conduct of [the required] . . . nature or to cause [the required] . . . result.”19 Unlike knowledge, which at first glance appears to focus only on the actor’s assessment of the risk of harm, purpose at first glance appears to focus only on the actor’s desires regarding the possibility that his conduct will prove harmful, while ignoring his beliefs about this possibility. But as with knowledge, this initial appearance proves to be misleading.

The crucial point is that in order to act with criminal purpose, the actor must believe that his conduct increases the risk of harm, even if the increase is very slight. Consider the Jackal, who fires a shot at de Gaulle from the Eiffel Tower believing his chance of success to be one in a million. If he does succeed, he will have shot de Gaulle “purposely,” given that it is his “conscious object” in shooting that de Gaulle be killed (that is how he collects his assassin’s reward). But characterizing this act as purposeful assumes that the Jackal believes that, although firing the gun produces only a one in a million chance of killing de Gaulle, firing the gun does increase the probability of de Gaulle’s being killed over the probability of de Gaulle’s being killed if the Jackal refrains from firing the gun. If the Jackal does not believe his firing the gun increases the probability of killing de Gaulle – if he believes de Gaulle has no worse chance of surviving if he fires the gun than if he does not – then were the shot to kill de Gaulle, it would not be a purposeful killing. For in such a case, the Jackal would not have fired the gun for the purpose of killing, given that he did not believe firing the gun produced any increased chance of killing de Gaulle.

18Recklessness, because it is sensitive to both risks and reasons, allows us to distinguish between those whom David Luban calls ostriches, who merely do not want to know, and those whom he calls foxes, who contrive deniability. See David Luban, “Contrived Ignorance,” 87 Geo. L.J. 957, 968–975 (1999). Ostriches and foxes may take the same risks, but they have different reasons for doing so. Both may be culpably reckless, but foxes are more culpable than ostriches given the same level of risk and the same harm.

19Model Penal Code § 2.02(2)(a) (1985).

Now, there are outlier cases where, even though the actor believes that his action has some chance of success, he may also believe that he is decreasing the overall chance of harm to the victim. Imagine that David wants to kill the president but knows that he is a terrible shot.20 He also knows that a hired hit man (a far better shot) intends to kill the president later in the day. David also believes that if he takes his shot and misses, then security will be improved and it will decrease the chances that the later hit man will be successful. Thus, David may come to believe that his taking the shot will actually decrease the chance of the president’s being killed. If David proceeds to shoot at the president and, against all odds, the shot finds its mark, is it correct to characterize David’s act of homicide as “purposeful”?

In our view, David has purposefully killed the president. To do something on purpose requires the actor to understand that his action can have some effect in the world – some chance of success. Indeed, it would be irrational for David to proceed if he believed that he could not kill the president. Thus, it may be said that David is acting purposefully even if he knows that if he fails he will then decrease the probability of the president’s being killed, and to a greater extent than his shooting by itself increases that probability.21

Some may argue that, as a conceptual matter, our claim that purpose entails both a reason to cause the harm and a belief that one may succeed runs counter to the standard position within the philosophy of mind and

20Private correspondence of David Dolinko, Professor of Law, UCLA School of Law, and Larry Alexander.

21T his hypothetical also raises a second question about the relevance of David’s knowledge that his action might actually decrease the overall probability that the president will be killed. This belief may have the effect of justifying David’s action. The question is complex, as it requires us to ascertain whether David must be motivated by, or simply aware of, the justifying circumstances and whether David may avail himself of a lesser-evils defense when he chooses the lesser, but perhaps not the least, evil. We attend to all of these questions in Chapter 4. The important point for now is that purpose does require both that the actor act on his desire to cause a harm and that he believe that his action has a chance of success.

Another point that the hypothetical raises, again relevant to the question of justification, is whether imposing a risk of dying sooner can be justified by averting a greater risk of dying later. Obviously, we believe it can be, which is why we consent to risky surgery to prevent a later but riskier disease. But because we are mortal and will die no matter what precautions we take, not every present risk can be justified by averting a later and greater risk.

to a common view that the degree of risk is irrelevant to the culpability of purposeful actions. Let us discuss each of these objections.

First, consider the objection that an intention to A does not entail a belief that one will A.22 To use an example of Michael Bratman’s, if Alex discovers a log blocking his driveway, he may form the intention to move it, but not form the belief that he will move it. Then, there is nothing irrational about Alex’s (1) forming the intention to move the log, and

(2) forming the intention to call a tree company if or when he fails.23 As a conceptual matter, it appears that actors can form intentions to p and yet not believe that they will p.

At the outset, we do not argue that acting purposefully requires that one believes one will succeed. Rather, our claim is far more limited – it is that acting purposefully requires a belief that one has some chance whatsoever of success. When Alex tries to lift the log, he may not believe that he will lift it, but he surely does not believe it to be absolutely certain that he will fail.

Second, it seems just as natural to say that what Alex intends is “to try to lift the log.” When we are cognizant of the likelihood of our failure, we sometimes cast our intentions not in terms of results but in terms of “tryings.” Of course, once one does not believe that one will succeed, but only that one will “try,” one is not committed to any degree of success. But now one can see just how fine (or nonexistent) the line is between purpose and recklessness. Purposeful riskings – like Russian roulette – are commonly seen as instances of recklessness. If Cowardly Jackal is paid $1,000 to kill de Gaulle, and, afraid of being caught, fires from a distance from which he estimates his likelihood of success at 1/1,000, he imposes the same risks for the same reasons as Risky Jackal, who is paid $1,000 to create a 1/1,000 chance of de Gaulle’s death.

Also, although we may speculate about the activities that we can engage in without believing that we can succeed, this objection hardly hits the mark when it comes to criminal activity. An actor who purposefully engages in conduct to cause harm to another does so in order to succeed (or at least to try to succeed). Indeed, instances of pure factual impossibility (voodoo and the like) are cases in which the defendant

22See Michael Bratman, Intentions, Plans, and Practical Reason 37–41 (1987).

23Id. at 39.

irrationally believes in the likelihood that she will succeed despite all science and common sense to the contrary. If there exists an actor who intends to harm another through a particular act but does so without a belief in any likelihood of that act’s success, we will concede that such an actor is not culpable for that act.

Finally, even if one does not agree with our claim that one may conceptually reduce purpose to recklessness, we still believe that normatively we can. That is, in instances of both purpose and recklessness, the actor’s culpability ultimately turns on both his reasons for acting and his belief as to the likelihood of success.

This last normative claim brings us to the second possible objection – that the culpability of a purposeful actor does not turn on his estimate of the likelihood of his success. As between two actors, each of whom has the same harm as his purpose and acts for the same reasons, is the one who believes the risk he is imposing is higher more culpable than the other? In other words, if we hold reasons constant, and among those reasons is the purpose to harm, do variances on the “perceived risk” axis affect culpability?24

We are inclined to say that culpability does vary with the actor’s estimate of the probability. Our culpability assessment evaluates the defendant’s choice to impose this risk for these reasons. Even if the actor would have imposed a greater risk – something we can presumably assume because he acts purposefully25 – this is not the choice he made.26 Moreover, even though the actor wants the harm to occur, he may be unwilling to impose a greater risk. The Cowardly Jackal who wants to kill de Gaulle but by imposing only a 1/1,000 risk is less culpable than the Brave Jackal who holds a gun to de Gaulle’s temple and then pulls

24 For a discussion of this issue, see Itzhak Kugler, Direct and Oblique Intention in the Criminal Law 90–102 (2002). We return to this issue in Chapter 8.

25As suggested by Kugler, id.

26Alan Michaels suggests something akin to this argument in “Acceptance: The Missing Mental State,” 71 S. Cal. L. Rev. 953 (1998). Michaels’s argument is that some actors who believe their conduct only risks harm feel the same degree of indifference as actors who believe their conduct will certainly cause harm, and because both types of actors “accept” (i.e., psychologically resign themselves to) the harm, both are equally culpable irrespective of their different estimates of the probability of the harm’s occurrence. Although we believe that this equal level of indifference shows both actors to have bad characters, still, only one was presented with the opportunity to impose a practically certain harm. Thus, they are not equally bad actors.

them. But they surely harmed him “purposely”; it was their conscious object to do so, even if doing so was not their ultimate purpose.

If purposeful criminal conduct is not always unjustified, neither is it always more culpable than knowledge or recklessness. One may well believe that the spelunkers lack a justification for homicide without believing they are more culpable than those who impose high risks of death on others for the mere thrill of it but who do not have others’ deaths as their conscious object. One may also conclude that a purposeful criminal actor who imposes a very tiny risk – for example, our hypothetical Jackal – is less culpable than a nonpurposeful actor who imposes huge risks for weak reasons. Thus, as we saw for knowledge, a unified conception of criminal culpability may actually avoid the potential problems that arise within the existing category of purpose.

Finally, our unified conception also resolves questions about how one can act purposefully as to an attendant circumstance.28 According to the Model Penal Code, an actor acts purposefully as to an attendant circumstance when he is aware, believes, or hopes that the circumstances exist.29 We believe that this formulation blurs important culpability distinctions. Compare one rapist who engages in sexual intercourse and knows that the woman is not consenting, with another who not only knows she is not consenting but is also motivated by the victim’s lack of consent. The latter certainly seems more culpable than the former, yet the Model Penal Code does not distinguish between them. Moreover, the Model Penal Code does not capture the root of the actor’s culpability, for it is misleading to characterize the actor’s attitude toward the victim’s not consenting as “hope.” Rather, the very reason the actor has engaged in his conduct is because he believes the victim is not consenting.

In addition, even when an actor is motivated by an attendant circumstance, there are shades of gray here as well. Suppose the actor purposely takes X’s computer. “Purposely” here might mean it was the

28Bentham thought this was not possible. Jeremy Bentham, Introduction to the Principles of Morals and Legislation 88 (1781; 1988) We disagree for the reasons we give below. See also Michael S. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law 203–205 (1993).

29Model Penal Code § 2.02(2)(a) (1985).