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Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability, Cambridge University Press (2009).
Margareth Etienne

Margareth Etienne

In their important book on criminal law theory, Crime and Culpability, authors Larry Alexander, Kim Ferzan, and Stephen Morse, vigorously and deftly defend the view that criminal liability should turn solely on moral culpability.  They argue that an actor’s moral culpability is based on her acts and the moral significance of her intent to commit certain acts with the knowledge that those acts unleash risks.  As the authors divorce “resulting harm” from the culpability equation, they provide a useful glimpse of a criminal law system focused squarely on the actor’s choice to engage in risky acts.  Their theory of culpability is not novel but their full sweep application of it here paints quite a picture—one with unusual results, as noted below. This book is both thought-provoking and thoughtfully written.  It is hard to put down, at least figuratively.  Like any worthwhile read, aspects of the authors’ arguments continue to haunt its reader long after the arguments seemed to have been put to rest.

Alexander, Ferzan and Morse begin their book with the odd concession that “criminal law’s purpose is the prevention of harm” and that the norms of conduct embodied in criminal law “exist for that purpose.” (P.17.)  This is odd only because as retributivists, they disavow the importance of harm in assessing criminal culpability.  Their “choice” theory of criminal law—a theory finding culpability in the choices we make that unjustly jeopardize the interests of others rather than in the results of those choices—leads to some curious results.  Perhaps most notably, they argue for the elimination of negligent crimes on the ground that those offenses do not demonstrate an insufficient concern to the protected interests of others.  They would also eliminate the line between offenses and defenses—that is the distinction between the prima facie elements of a charge and its exceptions or defeaters.  In addition, they seek to do away with incomplete attempts (and the attendant substantial step formulations), as well as complicity, contending that only the unjustifiable risks that the actor himself unleashes beyond his control count toward culpability.  As if all this weren’t sufficiently radical, the authors also propose designing a criminal code with no list of crimes or wrongs (e.g., rape, murder, robbery), but rather one where a finding of criminality rests on a generic finding of unjustifiable risk creation.  In essence, there is so much fodder for comment and discussion in Crime and Culpability that one hardly knows where to begin.

While the authors fail, to my mind, to persuade that punishment and liability should be entirely retributive and culpability-based, their book is ultimately a success in that it forces the reader to confront deeply held beliefs about fault.  Crime and Culpability provides a conceptually and pedagogically useful thought experiment about the virtues and the deficits of holding defendants responsible only for things in their control.

The controversial implication of the choice theory of liability is the elimination of negligence liability.  The authors explain that negligence—or the failure to advert to a risk that was unperceived but should have been perceived—is not culpable because we cannot be “morally culpable for taking risks of which we are unaware.” (P. 71.) They explain that an injunction “to notice, remember, and be fully informed about anything that bears on risks to others is an injunction no human being can comply with” and therefore one that reflects no moral defect.  (P.71.)  And they are right but the result is not one that most of us can live with.  The book pushes us to ask ourselves why.

Another compelling thought experiment raised by Crime and Culpability is their suggestion that we ought to collapse the distinction between offenses and defenses.  I sympathize with the author’s intuition that the oft-made distinction between offenses and defenses is formalistic.  The distinction exists perhaps for reasons of procedural fairness rather than theoretical integrity and they are right to point that out.  But how would we operationalize such a system?  Essentially the authors contend that defenses and their offenses are of one cloth as indicators of criminal culpability.  Recall that their “choice” theory of criminal liability is about the risks “the actor believes himself to be unleashing beyond his control”, id. at 86, and not about the consequences of his conduct.   Interesting questions arise when choice is placed at the center of personal culpability.  Are we fully responsible for our choices, judgments and misjudgments?  Or for the quality of our deliberations? Or for our mistakes in making normative judgments?  Is the gang member who was raised by other gang members culpable for her choices?  Is the batterer who believes that wife beating is culturally appropriate responsible for his beliefs?  The book demonstrates, perhaps unwittingly, how offenses can become subjective when we focus on choice and when we eliminate resulting harm from consideration in determining culpability.

In this limited space, I can’t begin to do justice to the breadth and depth of issues addressed in Crime and Culpability or to the many philosophical quandaries it uncovers.  I enjoyed reading it not because I agree with it but because it forced me to think critically about all the reasons I don’t and, at times, some of the reasons I am wrong to disagree.  I recommend it wholeheartedly.

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Cite as: Margareth Etienne, An Intriguing Thought Experiment on Culpability, JOTWELL (June 10, 2010) (reviewing Larry Alexander and Kimberly Kessler Ferzan (with Stephen Morse), Crime and Culpability, Cambridge University Press (2009)),