There is no gap between the actor’s subjective estimate of the risk and the “true” or “objective” risk because the latter is either illusory (other than as a referent to the one or zero “probability” of whether harm occurs) or arbitrary (as there is no principled way to select among relative frequency accounts). For the very same reasons, as we discuss in the next chapter, we believe that negligence is not an appropriate basis of criminal responsibility.

In summary, properly understood, recklessness is a subjective concept that tracks the defendant’s assessment of the risk. Moreover, the evaluation of whether an action is reckless hinges upon its justifiability. We further examine the nature of this assessment later in this chapter. But next we turn to why knowledge and purpose are mere species of recklessness.

II. Folding Knowledge and Purpose into Recklessness

In this section we argue that knowledge and purpose are forms of recklessness.12 We begin by showing how knowledge is merely a limiting case of recklessness along the axis of degree of perceived risk of harm. We argue that once knowledge is properly understood, it becomes clear why some instances of recklessness are more culpable than some instances of knowledge and why treating instances of willful blindness as instances of knowledge is erroneous. Next, we turn to purpose, arguing that such cases are instances of recklessness where the actor’s reasons are presumptively unjustifying. We argue, however, that just as recklessness contemplates that risk impositions can be justified by certain reasons, an actor’s purposeful conduct can also be justified by certain reasons. Because purposeful conduct is not always unjustified, we argue that it is

the price he pays, for he will assess his chances of winning $1 million as 1 in 1 million. But the officials will assess his chances as 1, and everyone else’s chances as 0. Their God’s-eye perspective provides them with an information base and epistemic position different from that of the ticket buyers.

The same point can be illustrated by a coin flip. If one of us flips a coin, the others will estimate the chance that it lands heads as 50 percent, and they will do so even if the coin flipper already knows the results of the flip but has not revealed it. From the flipper’s perspective, if the coin landed heads, the “chance” of its doing so is 1. If not, its “chance” is 0.

12 T his section draws from Alexander, supra note 3.

not necessarily more culpable than knowledge or recklessness. Finally, we address how our conception resolves questions about how one can act purposefully as to an attendant circumstance.

A. KNOWLEDGE

A person acts with criminal “knowledge” with respect to an element of a crime when he believes to a practical certainty that his conduct is of a particular nature, that an attendant circumstance exists, or that his conduct will bring about a particular result.13 Unlike recklessness, which focuses on both the risk imposed and the actor’s justification for imposing it, at first glance knowledge appears to focus only on risk – of forbidden conduct, resulting harm, or circumstance – and the actor must be practically certain it will result.

One might think from a superficial comparison between the formulation of knowledge and the formulation of recklessness that when an actor is practically certain that his act will be harmful to others, he is forbidden from undertaking it regardless of his reasons for doing so, whereas if he believes the risk is less than that of practical certainty, he may act if his reasons are sufficiently weighty. But it is not the case that knowingly imposing harm is always unjustified. For example, one may justifiably impose a practically certain harm on another to defend oneself or others or, in some cases, where worse harm to another or a similar harm to many others can only be averted thereby.14

“Knowledge” – acting with the belief that it is practically certain that one’s act will be harmful to others or turn out to be of a forbidden nature – is merely a limiting case of recklessness along the axis of degree of perceived risk of harm. The other recklessness axis, the axis of the actor’s reasons, remains fully operative. The only real distinction between knowledge and recklessness in the criminal law is that at some point as the risk of harm (or forbidden conduct) approaches a practical certainty, the burden of proof (or production) on the issue of whether the defendant-actor’s reasons for acting justified the risk of harm he created shifts from the prosecution to the defendant-actor. That shift in

13Model Penal Code § 2.02(2)(b) (1985).

14Id. §§ 3.02–3.05.

the burden of proof (or production) makes sense in terms of both the probability that the act is or is not justified and the relative access to the justifying circumstances, if any. But the difference in the allocation of burdens does not reflect any substantive distinction between knowledge and recklessness.15 Moreover, in our view, the Model Penal Code is correct in its assessment that lack of justification is something the prosecutor must prove beyond a reasonable doubt, though this burden may be aided by a permissive presumption placing the burden of production on the defendant.

Seeing knowledge as just a species of recklessness enables us to avoid two errors. First, it allows us to avoid the error of deeming all cases of knowledge to be more culpable than all cases of recklessness, even where the harm risked is the same. For example, someone who imposes a very high risk of harm on another – a risk just short of practical certainty – for a very frivolous reason, such as a thrill, is surely more culpable than one who imposes a practically certain harm for a quite weighty, but ultimately insufficient, reason. For example, if Albert knowingly inflicts severe bodily injury on another to prevent him from accidentally destroying Albert’s entire life’s work, Albert may be culpable; but he is surely less culpable than if he imposes a slightly lower risk of the same harm on another just to satisfy his urge to drive like a madman. In short, instances of what we now call extreme indifference to human life may not only be equal to but also more culpable than some cases of knowledge.

The second error averted by seeing knowledge as just a species of recklessness is the misclassification of cases of willful blindness. A typical case of willful blindness is one where the actor is asked by someone at an airport in a drug-producing country to carry a package on the plane and give it to a specific person when he arrives in the United States. Where the applicable statute punishes only “knowing” drug smuggling, courts have struggled to find the actor – whom they rightly regard as culpable – guilty by deeming his willful blindness to be tantamount to knowledge.16 Yet willful blindness is not knowledge; it is an attempt to

15T he Model Penal Code regards (the absence of) justification as part of the prosecutor’s burden of proof. See Model Penal Code § 1.12(2) (1985). It is constitutional, however, to place this burden on the defendant. See, e.g., Martin v. Ohio, 480 U.S. 228 (1987).

16See, e.g., Mattingly v. United States, 924 F.2d 785, 792 (8th Cir. 1991) (“[T]he element of knowledge may be inferred from deliberate acts amounting to willful blindness. . . .”);

avoid knowledge, and this hiding of one’s head in the sand frequently achieves that goal in that actors who display willful blindness do not in fact believe to a practical certainty that their conduct is harmful.

The prototypical willfully blind actor is, of course, reckless. The risk he is taking – of, say, smuggling drugs – is an unjustifiable one. The unjustifiability of the risk cannot, however, convert his recklessness into knowledge without absurd results. For example, suppose a drug smuggler employs 100 “mules” to do his smuggling.17 His modus operandi is to give each mule a suitcase to carry into the target country. He tells the mules that in ninety-nine of the suitcases he places only innocent items, such as clothes, and in one he places drugs. The mules are not told which suitcase holds the drugs, and they do not open the suitcases. In such a situation, it would be absurd to deem the mule with the drugs to have “knowingly” smuggled them. What he has done is take a one in a hundred chance of smuggling drugs for no legally sufficient reason. If a similar risk imposition would not be deemed “knowing” if undertaken for good reasons – say, for example, you are visiting a foreign country and a person whom you greatly admire asks you to carry a gift to a friend in the United States, and you entertain the thought that there is a tiny but real chance that the person you admire is a drug smuggler – then it is misguided to deem the risk imposition “knowing” merely because one disapproves of the reasons for undertaking it.

In some sense, all risk imposition is willful blindness in that the actor could always seek more information about the risk before acting, although the act thereafter undertaken would be different temporally and circumstantially from the act undertaken without gathering more information. Moreover, in ordinary recklessness cases, when we assess the actor’s reasons for imposing the risk, we are also implicitly assessing his reasons for not investigating the danger further. Viewing recklessness as the all-encompassing conception of criminal culpability, rather than as different from and less culpable than knowledge, allows us to

State v. LaFreniere, 481 N.W.2d 412 (Neb. 1992); see also United States v. Whittington, 26 F.3d 456 (4th Cir. 1994); United States v. Mancuso, 42 F.3d 836 (4th Cir. 1994); United States v. Jewell, 532 F.2d 697 (9th Cir. 1976); United States v. Incorporated Village of Island Park, 888 F. Supp. 419 (E.D.N.Y. 1995).

17See Douglas N. Husak and Craig A. Callender, “Willful Ignorance, Knowledge, and the ‘Equal Culpability’ Thesis: A Study of the Deeper Significance of the Principle of Legality,” 1994 Wis. L. Rev. 29, 37 (1994).