IV. The Arbitrariness of the Reasonable-Person Test

There are two clear boundary lines for the RPAS. First, the RPAS could be a person apprised of all the facts about the world that bear on a correct moral decision. At the other possible conceptual boundary, the RPAS could be someone with all the beliefs that the actor actually held. Put somewhat differently, where action falls below the standard of recklessness – the conscious disregarding of an unjustifiable risk – the action will appear reasonable to the actor and thus to the RPAS if the RPAS has exactly the same beliefs as the actor.

The two possible boundaries that provide the frame for characterizing the RPAS present us with this dilemma. If the RPAS knows all the facts, the RPAS always chooses the action that averts the harm (in the absence of justification, of course). But if this is the standard of the RPAS, then every case of strict liability will be a case of negligence as defined by the RPAS standard. It will never be reasonable not to know. (Notice, as well, that because risk is epistemic, the omniscient actor deals only in certainties: for her, the “risk” of a particular harm entailed by any act is either one or zero. On this construct, then, not only is there liability for every avoidable and regrettable – unjustifiable – harm, but there is also no negligence where harm does not occur.)

On the other hand, if the RPAS knows only what the actor knows, there is never any negligence either, only recklessness. The RPAS will always act as the actor acted where the actor is not conscious of the level of risk, and will act differently only where the actor is conscious of the level of risk, that is, is reckless.

At either conceptual boundary, therefore, RPAS collapses negligence into either strict liability or recklessness. The question, then, is where between those boundaries the RPAS is to be located.

The answer is that any location between these two boundaries will be morally arbitrary. Between the boundaries, any RPAS will be a construct that will include some beliefs of the actual actor together with beliefs that the constructor inserts. Which beliefs are inserted other than the ones the actor actually had will determine whether the RPAS would act as the actor acted. But there is no standard that tells us which of the beliefs of the actual actor should be left intact and which should be replaced by other (correct) beliefs. The RPAS standard, cut loose from the alternative moorings of the actor’s actual beliefs or of the world as it really was at the time the actor acted, is completely adrift

in a sea of alternative constructions, none of which is more compelling than others.

Some commentators at this point assert the possibility that the RPAS is like the actual actor in all material aspects but claim that the RPAS “would have” adverted to and properly assessed the risks because the actual actor “could have” adverted to and properly assessed them.33 But there is an equivocation here in the reference to what the actor “could have” adverted to and assessed in the actor’s situation. If we take the actor at the time of the “negligent” choice, with what he is conscious of and adverting to, his background beliefs, and so forth, then it is simply false that the actor “could have” chosen differently in any sense that has normative bite. For although it may be true that the actor “could have” chosen differently in a sense relevant to the freewill-determinism issue, it is false that in that situation the actor had any internal reason to choose differently from the way he chose.

To have such a reason, an actor will have to advert to that to which he is not adverting. But one has no control at such moments over what one is adverting to or is conscious of: try thinking of what you are not thinking of, but should be! The “could have adverted to the risk” position is directly at odds with the voluntary act principle as a reflection of the value of restricting punishment to choices over which the actor has fair control.

To put the point another way, an actor may fail to form a belief (or a correct belief) if he (1) lacks the requisite background beliefs, (2) lacks the intellectual ability, or (3) lacks the motivation to form the belief. 34 With respect to (1), we do not see how it can be fair to say that an actor “could have” believed a if only he had believed b without articulating how it was within the actor’s control to believe b. One would then have to show why it was, at the time belief b was available to him, a culpable decision not to form that belief.

In addition, as to (2), we do not see how we can blame an actor who either intrinsically (because of limited intelligence) or extrinsically (because of momentary distraction) fails to be able to form belief a at

33Hart, supra note 2, at 148; Brenda M. Baker, “Mens Rea, Negligence, and Criminal Law Reform,” 6 L. & Phil. 53, 83–85 (1987); Fletcher, supra note 2, at 401, 417.

34See Garvey, supra note 19, at 351–352.

the appropriate moment. An agent lacks the requisite control over her ability to form the correct belief at the appropriate time.

Finally, with regard to (3), there may be two reasons why an agent is not motivated to form a belief. First, an agent may simply not see any reason to gather additional information. Suppose someone more epistemically favored than the actor – an epistemically favored observer (EFO), who we shall assume is the equivalent of a RPAS – would estimate the risk that the actor is imposing on others to be higher than the risk the actor actually estimates. The EFO we shall assume would be culpable for acting as the actor acts. The problem for the actor, however, is that for him to become an EFO would require the expenditure of resources – time, energy, and perhaps material resources, plus the cost of forgoing the act in question at the time in question – and given his appraisal of the situation, that expenditure of resources appears unreasonable. After all, the actor does not know what risk the EFO estimates. The risk of harm could be higher than the actor estimates, but it could as well be lower, or the same. (If the EFO is God, then the risk will be higher or lower; it will be one or zero.) Nothing that the actor is aware of indicates to the actor that he should spend the resources to become an EFO.35

Second, she may be a bad person. However, we fail to see how someone who has no internal reason to form a belief is culpable for not doing so when, for whatever characterological reason, she does not recognize that such a belief should be formed. And if the negligence proponent wants to hold us responsible for our characters, he will have to offer some evidence that we have control over them.

In this last respect, consider the recent attempt by Peter Westen to construct the RPAS.36 Westen argues that we can construct the RPAS with all of the actual defendant’s beliefs, desires, education, intelligence, and so forth, but the jury must then ask the question whether an actor who truly had sufficient concern for others would have come to form

35See John Conlisk, “Why Bounded Rationality,” 34 J. Econ. Literature 669 (1996); Philippe Mongin, “Does Optimization Imply Rationality,” 124 Synthese 73 (2000). See also Larry Alexander, “Foreword: Coleman and Corrective Justice,” 15 Harv. J. L. & Pub. Pol’y. 621 (1992).

36Peter Westen, “Individualizing the Reasonable Person in Criminal Law,” 2 Crim. L. & Phil. 137 (2008).

the belief that the defendant did not form. So, Westen argues, the proper question in Williams is whether otherwise identical parents with sufficient concern would have recognized the life-threatening nature of the risk that the defendants did not recognize.

This inquiry takes us out of the individuation frying pan and back to the character fire. Here, we have the same concerns that we voiced with Tadros’s view – can we fairly hold people responsible for faulty characters of which they may or may not be aware, and which they may or may not be able to change? On the other hand, and consistent with our views about genetic recklessness, we are somewhat sympathetic to the claim that when a defendant becomes aware of a potentially dangerous trait, he may then have a duty to correct it. A man who discovers that he has a short temper that has caused him to lose control and hit his child does have a duty to take some affirmative steps to control his temper. He will be culpable for failing to do so (irrespective of whether he again loses control of his temper) if the risk of harm to others outweighs the burden of trying to get his temper under control (discounted by the likelihood of success).37

A culpability-based criminal law will not include liability for negligence. Culpability entails control, and the negligent actor does not have this requisite control. Any control a negligent actor has over her character can only partially and indirectly affect whether the actor will fail to advert to a risk at the requisite time. Moreover, because none of us is perfect, even those with relatively “good” characters will constantly fail to advert to risks that they should have chosen to avoid had they adverted to them.

Moreover, even if we could control these failings, there is simply no nonarbitrary way to determine the standard against which we should be judged. The reasonable person is neither the actual actor nor the omniscient god, but some construct that lies in between. Because there is no principled way to determine the composition of this construct, punishment for negligence is morally arbitrary.

37We also wonder how far this duty extends. For instance, if one discovers that because of his racist beliefs, he is more likely to misinterpret an act by a black man as an attack, does he have a duty to attempt to rid himself of these beliefs? Or must a liberal society tolerate this sort of potentially dangerous character? For the claim that a liberal society must tolerate the chosen retention of illiberal character traits, see Garvey, supra note 27.

by a temporally fixed3 act of his will and the reason(s) he had for so willing. We believe that the criminal law should intervene at the point at which the imbalance of risks and reasons represents a gross deviation from the standard of care that a law-abiding citizen would observe in the actor’s situation.

This formulation – encompassing both a comparison of risks to reasons and a comparison of the actor to the law-abiding person – contains within it much of the current doctrines of justification and excuse.4 That is, whenever the actor’s reasons are sufficient to justify the risk, the actor is justified. Even if the actor’s actions were not justified, if she has lived up to all that we can fairly expect of her, then she is excused. Despite the fact that much of what currently constitute defenses are subsumed within our culpability calculation in Chapter 2, we offer our thoughts here on those special reasons that justify risks often thought to be “justifications,” and we offer our view on how excusing conditions should be construed.

We begin with agent-neutral justifications. First, we discuss the lesser-evilsdefense,theparadigmaticconsequentialistjustification.Wealso explore deontological side constraints on the consequentialist calculus. Second, we turn to defense against culpable aggressors and address myriad issues that bear on when an individual may act defensively.

a bullet at someone, it does not matter that he is actually a brain-in-a-vat and that his willing to move his finger was unsuccessful, much less that his finger moved but the trigger was stuck, the trigger moved but the gun was unloaded, the gun was loaded but the bullet missed, and so on. Similarly, if the actor believes he is depressing the accelerator in a manner that will result in the car’s speeding instantaneously and thus with no further action or omission on his part, it does not matter that the car is actually in neutral, or that the actor is unbeknownst to him in a car simulator rather than a car, or that his foot is paralyzed and will not depress in response to his will, or that he is a brain-in-a-vat. Indeed, in some cases it may not matter that the speed that he is trying to achieve is not prohibited at this location if he believes that it is and is unaware of the facts that make it safe to go that speed at that location.

3Another topic that we address in Chapters 6 and 7 concerns risks that are inappropriately

created at T1 but that the actor can reduce through subsequent action at T2. When the actor drives very fast, he may be aware that he is risking others’ persons and property unjustifiably as long as he continues to drive at that speed. But he may then slow down. Or when the

actor lights a fuse to burn down another’s home, he may realize there is a small risk that even if he has a change of heart in the next moment, he will for some reason fail to snuff it out. So he has created an unjustifiable though small risk, though one that becomes larger as time goes by and his ability to effectuate any change of heart declines.

4Cf. George P. Fletcher, The Grammar of the Criminal Law: American, Comparative, and International § 8.4.2 (2007) (Model Penal Code definitions of recklessness and negligence embody within them questions of justification and excuse).

Next, we turn to excuses. We begin with duress and discuss how this “excuse may actually encompass a personal justification. That is, an actor may have an agent-relative justification – a moral permission – when she defends herself or her loved ones. After discussing duress, we turn to instances of mistake. Although the determination of whether an actor is culpable is based upon her epistemic perspective – so that mistakes regarding either harms or reasons are ordinarily exculpatory – we also consider whether the actor is entitled to an ignorance-of-the-law excuse when she is unaware of the existence of a proxy crime.

Finally, we address the sorts of rationality impairments that may exempt an individual from liability; excuse his conduct on a given occasion; or, at the very least, mitigate his culpability. Among the candidates for excuse are infancy, insanity, and altered states of consciousness. Sometimes, of course, these facts defeat culpability without regard to demonstrating defective reasoning, as when they explain why the actor did not perceive substantial risks from his conduct or believed that certain justifying facts were present. Because ignorance regarding risks and reasons straightforwardly negates culpability, and because infancy, insanity, and altered consciousness explain ignorance, there is nothing special about using the latter to negate culpability.

Sometimes, however, the actor is aware of the risks and does not perceive any facts that would justify imposing such risks but nonetheless is deemed not culpable for acting in the face of such risks and the absence of justifying reasons. The explanations for deeming such actors nonculpable are varied and controversial. Lack of sufficient maturity or sanity to grasp fully the import of otherwise culpable acts and lack of the ability to access fully all of one’s reasons for not acting are oft-cited though not fully explained. Are the young, the insane, the hypnotized, the somnambulant, or those acting in the grip of “automatism” different in kind or only in degree from the impulsive, the habitual, the daydreamer, and so on? We cannot answer these questions fully here. What we can do is identify them and show where they fit into our schema.

I. Justifications and Excuses: Reorienting the Debate

Our view leads to a somewhat radical revision of the current understanding of criminal law defenses. Criminal law defenses are typically

divided into the broad categories of justifications and excuses. In addition to these defenses, there are also nonexculpatory defenses, such as diplomatic immunity.5 One final area of so-called defenses entails “exemptions,” those cases in which the actor lacks sufficient rationality to be deemed a moral agent.6 Although we briefly address exemptions, our focus in this chapter is on justifications and excuses, as these are the defenses that must be understood to assess whether the actor is culpable and therefore worthy of blame and punishment.

There is considerable controversy over how best to understand justifications and excuses. Some argue that justifications are actions that are “right”; others claim justifications entail “permissible” actions.7 There are questions as to whether justifications are ultimately based on a consequentialist balancing of evils, or whether there is room for deontological considerations.8 Some think that justifications cannot conflict and that an actor’s being justified has implications for what third parties may and may not do.9 Others think that justifications simply announce that an act is either permissible for the actor or simply not punishable, with no implications for how other parties may behave.10

Whereas justifications are thought to focus on the wrongfulness of the act, excuses center on the blameworthiness of the actor. Theories

5See Paul H. Robinson, Structure and Function in Criminal Law 71–78 (1997); R. A. Duff, “ ‘I Might Be Guilty, But You Can’t Try Me’: Estoppel and Other Bars to Trial,” 1 Ohio St. J. Crim. L. 245 (2003).

6See Michael S. Moore, Law and Psychiatry: Rethinking the Relationship 64–65 (1984); Victor Tadros, Criminal Responsibility 55–57 (2005).

7See, e.g., Joshua Dressler, “Justifications and Excuses: A Brief Review of the Concepts and the Literature,” 33 Wayne L. Rev. 1155, 1161 n.22 (1987) (noting that self-defense may be permissible as opposed to “right”); Claire O. Finkelstein, “Self-Defense as Rational Excuse,” 57 U. Pitt. L. Rev. 621, 624 (1996) (“In the criminal law, to call a violation of a prohibitory norm justified is to say not only that it is permissible, but that it is encouraged.”); George P. Fletcher, “Should Intolerable Prison Conditions Generate a Justification or an Excuse for Escape?” 26 UCLA L. Rev. 1355, 1359 (1979) (rejecting permissibility definition in favor of a view of justification as right action); Hibi Pendleton, “A Critique of Rational Excuse Defense: A Reply to Finkelstein,” 57 U. Pitt. L. Rev. 651, 665 (1996) (critiquing Finkelstein’s narrow definition of justification).

8See Douglas N. Husak, “Justifications and the Criminal Liability of Accessories,” 80 J. Crim. L. & Criminology 491, 505–506 (1989).

9See George P. Fletcher, Rethinking Criminal Law 761–762 (1978); Heidi M. Hurd, “Justification and Excuse, Wrongdoing and Culpability,” 74 Notre Dame L. Rev. 1551, 1553 (1999).

10See Mitchell N. Berman, “Justif ication and Excuse, Law and Morality,” 53 Duke L.J. 1, 62–64 (2003).

of excuse also run the gamut. As we discussed in Chapter 1, character theorists argue that an actor is excused if her action is not a reflection of her settled character.11 Choice theorists, on the other hand, argue that an actor is excused if she lacked the capacity and fair opportunity to conform her conduct to law.12 Still other theorists argue that excuses depend on one’s role or on the dispositions the law wishes to encourage.13

Because our approach, at least at an idealized level, eliminates the formal distinctions between offenses and defenses, the terms of the debate shift. That is, those who argue that justifications are parallel to negating offense elements, but excuses are equivalent to negating culpability,14 will find that these neat categories have completely disappeared within our framework. Nevertheless, we believe that much of the current understanding and debate about justifications and excuses can be accommodated within our model.

Our model requires an analysis of the justifiability of the actor’s act. As we note, culpability is about weighing risks and reasons. An action is not culpable if the actor’s reasons for acting outweigh the risks he foresees. Thus, we need some theory of when reasons do outweigh risks. Such an analysis is simply another way of understanding justifications – an act is justified when, all things considered, it is permissible to engage in what would otherwise be wrongful risk imposition.

Our conception of culpability also encompasses excuses. As we have argued previously, by acting recklessly, unjustifiably privileging one’s reasons over others’ legally protected interests, one manifests insufficient concern for the interests of others. That is, our subjective approach to determining culpability describes the moral vice of insufficient concern.15 Excuses, in turn, serve to negate our inference of (or indignation toward) this moral vice.16

11See Fletcher, supra note 9, at § 10.3.1.

12See Michael S. Moore, Placing Blame: A General Theory of Criminal Law 548 (1997).

13See, e.g., John Gardner, “The Gist of Excuses,” 1 Buff. Crim. L. Rev. 575 (1998); Claire O. Finkelstein, “Excuses and Dispositions in Criminal Law,” 6 Buff. Crim. L. Rev. 317 (2002).

14See, e.g., Hurd, supra note 9.

15See also Kimberly Kessler Ferzan, “Don’t Abandon the Model Penal Code Yet! Thinking Through Simons’s Rethinking,” 6 Buff. Crim. L. Rev. 185, 212–215 (2002); Kimberly Kessler Ferzan, “Holistic Culpability,” 28 Cardozo L. Rev. 2523 (2007).

16See Peter Westen, “An Attitudinal Theory of Excuse,” 25 Law and Phil. 289 (2006).