As we have established, primarily in Chapter 2 and by exclusion of inadvertent negligence in Chapter 3, an actor's culpability is the product of the risk(s) to others' protected interest(s) that he believes he has unleashed by a temporally fixed 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. 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-evils defense, the paradigmatic consequentialist justification. We also explore deontological side constraints on the consequentialist calculus.

To us, there is really only one injunction that is relevant to criminal culpability: choose only those acts for which the risks to others' interests – as you estimate those risks – are sufficiently low to be outweighed by the interests, to yourself and others, that you are attempting to advance (discounted by the probability of advancing those interests). In Model Penal Code parlance, we have done away with the special part of the criminal code. We have a general rule that applies to all crimes, not specific rules of conduct.

Our view of culpability is not the end of the matter, however. Even our idealized code has a significant amount of work to do. The criminal law must identify those interests that it will protect. In addition, the criminal law must have a system for adjudicating the actor's culpability, which must determine not just what harms the actor is aware he is risking but also his estimate of the probability of those harms obtaining. Moreover, in adjudicating culpability, the criminal law must balance this estimate against the actor's reasons for acting, which must also be discounted by the actor's estimate that those reasons will obtain. And if the determination of that balance reveals that the actor's action is unjustifiable, the assessment of the actor's culpability is still not complete. For, as we have noted, the criminal law must also assess the quality of the actor's deliberation – a factor that can either mitigate or aggravate the actor's culpability.

General instructions:

It is criminal for an actor to take an unjustified risk of causing harm to a legally protected interest or to take an unjustified risk that his conduct constitutes prohibited behavior.

The following are harms to legally protected interests [list those applicable]:

Death

Fear of death

Serious bodily injury

Less serious bodily injury

Etc.

The law does not protect an individual from a risk of harm to which she consents. If the person subjected to the risk of harm knowingly and voluntarily consented to that risk, then the defendant cannot be liable for risking that harm. (An exception to this principle exists when the law specifically denies the capacity of the person to give legally effective consent to the particular risk in question.)

For behavior to be justified, the reasons that the actor has for engaging in his behavior should be weighed against the risk that the actor perceives that his conduct will cause a prohibited result or results.

An actor may never justify “appropriating” or “using” another human being (unless the appropriation is minor and the harm to be averted serious?).

The actor's reasons for action include not only the reason or reasons that motivate his conduct but also any other reason that might justify his conduct of which he is aware. These reasons should be accorded weight by (1) their positive or negative force and (2) the actor's perception of the likelihood that the facts underlying the reasons do or will obtain.

Unlike purpose and knowledge, negligence cannot be collapsed into recklessness. To be negligent, one does not advert to (in the sense of “be aware of”) the unreasonable risk that one is creating with respect either to the proscribed result or to the proscribed nature of one's conduct. It is adverting to such risks that converts one's negligent conduct into recklessness. True negligence is inadvertent creation of unreasonable risks. What distinguishes negligence from strict liability is that the negligent actor's unawareness of the risk is a failure to meet the objective “reasonable person” standard.

The Model Penal Code's definition of negligence is representative:

Why Negligence Is Not Culpable

Essentially, those who deem negligence to be culpable argue that failure to advert to a risk that one had a fair chance to perceive (had one tried) is culpable, even though it does not entail a conscious choice to produce or to unreasonably risk harm.

Having argued that results are neither necessary nor sufficient for blameworthiness or punishability, we must still answer the question of what type of action is necessary for the actor to be said to have acted culpably. Although this problem is traditionally addressed within the doctrinal rubric of the actus reus for incomplete attempts, the problem for us applies more generally. We must specify an actus reus formulation for all crimes.

There are various potential actus reus formulations, drawn along the continuum from the time the actor forms an intention to impose a risk of harm to the time when he believes he is unleashing that risk and it is no longer within his (complete) control. We contend that it is only at the time the actor engages in the act that unleashes a risk of harm that he believes he can no longer control (through exercise of reason and will alone) that he has performed a culpable action.

In this chapter, we begin by setting forth the principles that underlie our adoption of the “last act” formula. We then survey the various points along the inchoate crime continuum, from the formation of the intention to impose the risk, to the Model Penal Code's intention plus “substantial step,” to the common law's intention plus “dangerous proximity,” to the last act.

Individuals exhibit insufficient concern through their actions. When an actor knowingly risks harm to others, she manifests her respect (or lack thereof) for others and their interests. In our view, this theory of culpability sets forth not only the necessary conditions for blameworthiness and punishment but also the sufficient conditions. We thus believe that current law is incorrect to the extent that it provides that resulting harm makes an actor more blameworthy and deserving of more punishment.

In this chapter, we argue that resulting harm is immaterial to what the actor deserves. We begin by articulating our position that results do not matter to the actor's blameworthiness. Recognizing that we are fighting an uphill battle against common intuitions, we try to undermine the intuitive appeal of the claim that “results matter” by introducing cases that do not support such intuitions and by offering an alternative account of why results sometimes do seem to matter. Beyond relying on intuitions, we reveal the flaws in law's dependence upon results. We also argue that a principled distinction can be drawn between this sort of luck (so-called moral luck), which we believe does not matter, and constitutive and opportunity luck, the existence of which we do not believe undermines criminal responsibility. After setting forth our argument as to the irrelevance of results, we then consider the implication of our position for voluntary intoxication and other ancestral and (potentially) culpable acts, for inchoate crimes, and for factually and legally impossible attempts.

Our entire book has been devoted to the implications of having criminal liability turn on the pivots of the risks the actor perceives and the reasons for which he chooses to impose those risks. In many respects, our analysis and prescriptions are clear departures from criminal law orthodoxy, both doctrinal and theoretical. Although we believe that our approach is perhaps not as radical as it might appear to be – after all, many critics are uncomfortable with making inadvertent negligence a basis for criminal liability; many (theorists, at least) are persuaded that results should not matter to criminal liability; recklessness, with its axes of risks and reasons, is already a fundamental component of criminal law; and inchoate criminal liability is a controversial and confusing domain – we concede that all our proposals taken together will be sufficiently dramatic that the burden of persuasion we carry is properly a heavy one. Nonetheless, we believe we have met it. At the very least, we believe we have presented and justified an internally coherent version of a criminal law based on meting out retributive justice.