Lecture 2: Five Levels of Responsibility

1. Lecture 2: Five Levels of Responsibility • Purpose • Knowledge • Recklessness • Negligence • Strict Liability

2. Purpose • The agent had the conscious object of producing the effect in question -- its realization formed some part of a plan successfully executed by the agent.

3. Knowledge • The agent was aware that it was practically certain that the result in question would be a result of his action.

4. Recklessness • The agent consciously disregarded a substantial and unjustifiable risk that the effect in question would result from his action.

5. Negligence • The agent would have been aware that there was a substantial and unjustifiable risk that the effect in question would result from his action, if he acted as a reasonable person would. • Two difficult questions: • When are risks “unjustifiable”? • What would a “reasonable person” do in the relevant circumstances?

6. Strict Liability • The agent caused the effect in question, with or without knowledge, or even possible knowledge.

7. Consequentialist vs. Deontological • Consequentialist Considerations • The actual consequences of the statute or rule, including its effects on behavior. • Deontological Considerations • Constraints on permissible law, apart from its consequences, concerning such matters as: • fairness, • respect for rights, • the dignity of the individual, and • respect for other institutions (church, family, etc.).

8. Consequentialist case against strict liability • The law cannot deter unintentional infractions by threat of punishment. • The recklessness standard would deter as much, with fewer prosecutions, less punishment. • The negligence standard would deter all unreasonable risk-taking. What more could we want?

9. Consequentialist case for strict liability • It is difficult to prove the mental state of the perpetrator. • Strict liability induces an even higher level of care than does negligence liability. • Strict liability discourages the kinds of activity that can produce the effect.

10. Deontological Arguments Against Strict Liability • Unfairness of punishing bad luck. • Undermines the moral authority of the law -- the link between criminal conviction and moral condemnation (Hart’s dilemma: either it’s immoral -by wrongly stigmatizing the righteous - or it weakens the law’s influence) • Undermines personal freedom: makes it impossible to avoid state interference with 100% reliability.

11. Some specific cases: • Selling narcotics without a written order (US v. Balint). • An officer borrowing money from his own bank (State v. Lindberg) • Statutory rape (Regina v. Prince) • Speeding due to faulty cruise control (Baker, Kansas ), but not due to fault brakes.

12. Strict vs. Absolute Liability • In each case, the agent was doing something intentionally: • selling a drug • borrowing money • engaging in sexual intercourse with a young woman • operating an automobile • Does this make a difference?

13. Hypothetical: absolute liability • Consider the following hypothetical law: • In order to fight drug trafficking or terrorism, it is made a felony (punishable up to 10 years in prison) to be an employee of or investor in any enterprise involved in drug trafficking, terrorism, or money laundering for such activities, regardless of one’s knowledge, even possible knowledge, of these activities.

14. Is it wrong to punish bad luck? Is it irrelevant? • Murder carries a heavier penalty than attempted murder. • Vehicular manslaughter carries a heavier penalty than reckless driving. • Why does the actual effect matter? • Why treat murder and vehicular manslaughter differently? Murder and attempted murder?

15. Crime and Condemnation • Is there an indissoluble link between criminal punishment and societal condemnation? • Is it ever OK to punish (even severely) someone who did nothing morally wrong?

16. Purposes and Alternatives • What are the purposes of criminal punishment? What ends does it serve? • Why punish at all? (Recent case in Vermont) • What are some possible alternatives? • When and why is punishment preferable?

17. Consequentialism • Consequentialism is the thesis that only consequential considerations should be relevant. • The best known version of consequentialism is utilitarianism (the best law is the one that maximizes total happiness).

18. Punishing the innocent • There are obvious consequentialist reasons for not (in general) punishing the innocent. • However, many critics of consequentialism have argued that in some cases, it would justify doing so: the anti-lynching thought experiment.

19. Publicity and Transparency • The standard consequentialist response to this objection is to fall back to “rule consequentialism” (rule utilitarianism). • The rule of utility applies only to public, transparent practices & institutions, not individual actions or decisions.

20. Two Remaining Problems • Consistency: If consequences are all that matter, how can the utilitarian justify sticking to a rule in cases where utility is not served? • Failure of generality: In some cases (strict liability, punishing the insane), utilitarianism may justify public practices that punish the innocent.

21. Malum in se vs. malum prohibitum • Some acts of lawbreaking involve doing something inherently evil -- malum in se. • Others are evil only because they involve breaking the law. • Examples of malum prohibitum?

22. “Ignorance of law is no excuse” • Is there a parallel between this principle and a rule of strict liability? Consider U.S. v. Balint. Is there a sig. difference between not knowing that you’re borrowing from your own bank, and knowing this but not knowing that doing so is illegal? • What are the similarities? • What are differences?

23. Malum prohibitum & strict liability • If we object to strict liability on the grounds of fairness, would the same objection apply with equal force to rejecting the ignorance-of-the-law excuse in the case of malum prohibitum offenses? • Is the mental element equally innocent in both cases?

24. Strict vs. negligent liability? • Wasserstrom argues that there is no significant difference -- both are lacking the mental element. • Is negligent liability ever a more reasonable standard than strict? • Consider specific cases: Balint, Lindberg, Prince (statutory rape), Baker

25. Felony Murder • Enmund v. Florida: death penalty sentence of getaway car driver overturned. • Tison v.Arizona: death penalty upheld. Defendants were major players, present at the scene.

26. Tison dissent • Tisons did not act with reckless disregard for human life. • Prior agreement that no one would get hurt. Defendants surprised by killings. • Could not have prevented killings. • Distinction is rooted in “our belief in the freedom of human will”.

27. Discussion Questions • How would you have voted in Enmund v. Florida? • How in Tison v. Arizona? • Is there a significant difference? Why or why not? Which objections to strict liability apply to this issue? Which don’t? • Hypothetical: truck driver unwittingly runs over little girl while committing a felony (smuggling).