Under our schema, if getting intoxicated in a public place without surrendering one’s car keys is unjustifiably risky to others – because one might then drive dangerously – then Joe, John, and Jake have committed the same culpable act in getting intoxicated and are equally culpable. They are not culpable for what they do subsequently if after they become intoxicated they do not perceive their conduct to be risky. John’s dangerous driving and Jake’s fatal crash are merely fortuitous “results” of their culpable act of excessive drinking and are immaterial to their culpability.

So whether it is drivers voluntarily getting intoxicated, epileptics or psychotics failing to take antiseizure or antipsychotic medications, parents failing to read up on symptoms of childhood diseases, or sailors in a foreign port failing to attend language classes, culpability should attach to those acts of knowingly taking unjustifiable risks – and should be set at the average riskiness the actors believe such conduct entails – and should not turn on the subsequent acts that are the product of that risky conduct but that are not themselves culpable.

VI. The Immateriality of Results and Inchoate Crimes

We have maintained that an actor who acts culpably has his blameworthiness and punishability – his desert – fixed by that culpable act alone, regardless of whether it produces a harmful result. If the actor’s act is culpable – whether because he believes it creates an unjustifiable risk of harm to a protected interest, or because, as with “proxy” crimes, he believes it creates an unjustifiable risk that he will engage in forbidden conduct (such as exceeding the speed limit) – his desert is fixed, and results or their absence cannot alter it.

It should be obvious that in maintaining the moral equivalence of culpable acts that cause harms (or cause conduct that is a proxy for undue risks of harm), we are assuming that the actor has taken the last step he believes necessary to unleash the risk and that the relevant level of risk is now beyond his control. If he merely intends to unleash the risk, even as soon as the next moment, his culpability is not as high as that of one who has unleashed the risk. Indeed, whether or not “substantial step” attempts (as opposed to “last act necessary” attempts) or other inchoate forms of criminality (solicitations of crimes, conspiracies to

commit crimes, and before-the-fact assistance to criminals) are culpable at all, and if so, on what basis, is a vexing topic and one that we take up in Chapter 6 (and have taken up preliminarily in Chapter 4 in discussing “culpable aggressors”). Even if inchoate forms of criminality are culpable, however, that culpability is less than the culpability of those who believe they have already unleashed the risk. Only the culpability of the latter is equivalent to that of actors who culpably cause harm (or culpably engage in conduct that is a proxy harm).

On the other hand, for those who believe they have already unleashed the risk, their culpability is, as we argued in Chapter 2, an entirely subjective matter. If Ralph is going eighty through a school zone to get home in time to watch his favorite TV program, and he believes that he is creating an extremely high risk of injuring or killing a child, he is culpable – even if there are no children present; even if there are children present but his speedometer is broken and he is actually going only fifteen miles per hour; even if he is not in a car but, unbeknownst to him, is in a car simulator, or has a paralyzed leg and only believes he is, but is not really, depressing the accelerator; and even if he is a brain- in-a-vat who is willing that he depress the accelerator but has no limbs and no vehicle. The same holds if the risk Ralph is unleashing is not the risk of harm to children but is instead the risk of conduct – “exceeding the speed limit” – that amounts to a proxy harm. And the same holds true of Samantha, the voodoo doctor, who, at the moment she sticks a pin in the effigy of Suzy, believes she has irretrievably unleashed the high risk of Suzy’s death. And Carla, who puts what she believes is poison in Dan’s tea and watches him drink it but has actually mistaken sugar for strychnine. And Mike, who aims at Bob and pulls the trigger, but misses. Or whose gun was, unbeknownst to him, unloaded. Or who tried to squeeze the trigger but discovered it to be stuck. Or whose finger did not respond when he was willing it to squeeze the trigger and thought he had squeezed it. Or who did not realize when he filled him with lead that Bob was already dead. And Lady Eldon, who attempts to smuggle past customs an item she does not realize she is not required to declare. And so on. In every one of these scenarios, the actors commit fully culpable acts that are no less deserving of punishment than had the same acts injured children, exceeded the speed limit, killed Suzy, Dan, and Bob, or resulted in nondeclaration of a dutiable item.

VII. Inculpatory Mistakes and the Puzzle of Legally

Impossible Attempts

In all cases in which the actor acts culpably but no harm occurs – cases in which the actual (God’s-eye) risk is zero, but the actor estimates it to be sufficiently high to render his act culpable – the actor’s causing harm is in some sense “impossible.” The criminal law has traditionally referred to a particular category of acts as “impossible attempts,” a description that we find unfortunate, given that all attempts that are attempts – that is, that fail to bring about harm – are in a very real sense impossible. Given that the gun was unloaded, the trigger jammed, the aim awry, the victim suddenly bent over, and so on, the attempt could not help but fail.

The Model Penal Code brought some helpful order to the topic of impossible attempts by deeming all “impossible” attempts to be criminal with the exception of those in the category of “pure legal impossibility.” The latter are those cases in which the actor believes his act violates a particular criminal law that does not in fact exist. If, for example, we mistakenly believe dancing on Sundays is criminally proscribed, and, to protest this absurd law, on Sunday we take to the dance floor, we have attempted to violate a nonexistent law. Although we are in some sense culpable – we are, after all, scofflaws – there is no law in the penal code that we can be charged with attempting to violate. This is a case of pure legal impossibility and not punishable. (The case would be different – and under the Model Penal Code, clearly a punishable attempt – if there were such a law on the books, but we were dancing, not on Sunday, as we believed, but on Saturday.)35

In our schema, the equivalent of pure legal impossibility might be the actor who believes that creating perceived risk R of harm H for justifying reason JR is culpable, who nonetheless creates R of H for JR, but creating R of H for JR is not culpable. The actor will believe he has acted

35T he line between cases of pure legal impossibility and those cases of impossibility that are punishable is not as neat as the preceding example suggests. For example, what if the law were “One may not dance when there is a red flag over the courthouse, but one may when there is a green flag,” and we, being colorblind, mistake a green flag for a red one but dance anyway? For a discussion of inculpatory mistakes of this type, see Larry Alexander, “Inculpatory and Exculpatory Mistakes and the Fact/Law Distinction: An Essay in Memory of Myke Bayles,” 12 Law & Phil. 33 (1993).

wrongly toward others when he has not. And just as the criminal law does not punish the pure legally impossible attempt, so too would we exempt from punishment those who believe themselves to be culpable but who are not. There are, in our schema, no “attempts to be culpable.” One either acts culpably or does not, but one cannot culpably try (but fail) to act culpably.

On the other hand, to the extent we make unduly risking proxy conduct criminal, we introduce the following possibility: the actor may believe that he is imposing an unjustifiably high risk of proscribed proxy conduct PC but not an unjustifiably high risk of the harms (H) that PC is meant to avert. The actor thus appears to be culpable with respect to PC but not with respect to H. But what if PC is only a figment of the actor’s imagination? (Perhaps PC was proscribed in the past but is not so now.) The actor has displayed insufficient concern for “the law” but not insufficient concern for the harms the law wishes to avert.

Where the law proscribes proxy conduct, do we need a category like pure legal impossibility? Our hypothetical actor displays a sort of culpability – the scofflaw sort – but it is difficult to see what he can be charged with. One possibility, of course, is to say that acting as a scofflaw is a form of culpable conduct and punishable as such. We discuss this possibility again in Chapter 8. That approach would avert the necessity of distinguishing pure legal impossibility from other, clearly culpable, mistakes.

Results do not matter for blameworthiness or punishability. The law seeks to influence the reasons for which a person acts, but it cannot influence the results of these actions. Thus, when an actor risks harm to others for insufficient reasons, the law’s influence has failed, and a culpable act has fully revealed the actor’s desert. No further information, such as whether the culpable act caused harm (or benefit), is needed for us to determine the degree of her punishment.

Although many people believe that results matter, there is a distinction to be drawn between results mattering (as they must because they affect the world in which we live) and results mattering for the moral blameworthiness of the actor. We can recognize that some results are harmful and, indeed, that we create laws to prevent such harms, without at the same time committing ourselves to the view that results independently affect blameworthiness.

Because the law currently gives independent significance to the role of resulting harm, criminal law doctrine is mired with flaws. Both cause- in-fact and proximate causation present flawed doctrinal accommodations to approximate culpability when causal chains go awry. The better approach is simply to abandon any concern with results completely.

Finally, we can make a principled distinction between moral or result luck and other forms of luck, and that distinction rests on the very choice that is at the root of culpability. No matter what hand we are dealt, moral agents have the capacity to reason and the capacity to choose to violate the law (or not). It is on this choice and this choice alone that responsibility rests and, along with it, culpability and desert.