Lecture 2: Five Levels Lecture 2: Five Levels of Responsibilityof Responsibility

PurposePurpose KnowledgeKnowledge RecklessnessRecklessness NegligenceNegligence Strict LiabilityStrict Liability

PurposePurpose

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

KnowledgeKnowledge

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

RecklessnessRecklessness

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

NegligenceNegligence

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?

Strict LiabilityStrict Liability

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

Consequentialist vs. Consequentialist vs. DeontologicalDeontological

Consequentialist ConsiderationsConsequentialist Considerations• The actual consequences of the statute or rule, including its effects on behavior.

Deontological ConsiderationsDeontological 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.).

Consequentialist case Consequentialist case againstagainst strict strict liabilityliability The law cannot deter The law cannot deter unintentional infractions by unintentional infractions by threat of punishment. threat of punishment.

The recklessness standard would The recklessness standard would deter as much, with fewer deter as much, with fewer prosecutions, less punishment.prosecutions, less punishment.

The negligence standard would The negligence standard would deter all unreasonable risk-deter all unreasonable risk-taking. What more could we want?taking. What more could we want?

Consequentialist case Consequentialist case forfor strict liability strict liability

It is difficult to prove the It is difficult to prove the mental state of the perpetrator.mental state of the perpetrator.

Strict liability induces an even Strict liability induces an even higher level of care than does higher level of care than does negligence liability.negligence liability.

Strict liability discourages the Strict liability discourages the kinds of activity that can kinds of activity that can produce the effect.produce the effect.

Deontological Deontological Arguments Arguments Against Strict Against Strict LiabilityLiability Unfairness of punishing bad luck.Unfairness of punishing bad luck. Undermines the moral authority of the Undermines the moral authority of the law -- the link between criminal law -- the link between criminal conviction and moral condemnation conviction and moral condemnation (Hart’s dilemma: either it’s immoral -(Hart’s dilemma: either it’s immoral -by wrongly stigmatizing the righteous by wrongly stigmatizing the righteous - or it weakens the law’s influence)- or it weakens the law’s influence)

Undermines personal freedom: makes it Undermines personal freedom: makes it impossible to avoid state interference impossible to avoid state interference with 100% reliability.with 100% reliability.

Some specific cases:Some specific cases:

Selling narcotics without a Selling narcotics without a written order (US v. Balint).written order (US v. Balint).

An officer borrowing money from An officer borrowing money from his own bank (State v. Lindberg)his own bank (State v. Lindberg)

Statutory rape (Regina v. Prince)Statutory rape (Regina v. Prince) Speeding due to faulty cruise Speeding due to faulty cruise control (Baker, Kansas ), but not control (Baker, Kansas ), but not due to fault brakes.due to fault brakes.

Strict vs. Absolute Strict vs. Absolute LiabilityLiability In each case, the agent was In each case, the agent was doing doing somethingsomething intentionally:intentionally:• selling a drugselling a drug• borrowing moneyborrowing money• engaging in sexual intercourse engaging in sexual intercourse with a young womanwith a young woman

• operating an automobileoperating an automobile Does this make a difference?Does this make a difference?

Hypothetical: absolute Hypothetical: absolute liabilityliability

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

Is it wrong to punish Is it wrong to punish bad luck? Is it bad luck? Is it irrelevant?irrelevant?

Murder carries a heavier penalty Murder carries a heavier penalty than attempted murder.than attempted murder.

Vehicular manslaughter carries a Vehicular manslaughter carries a heavier penalty than reckless heavier penalty than reckless driving.driving.

Why does the Why does the actualactual effect effect matter?matter?

Why treat murder and vehicular Why treat murder and vehicular manslaughter differently? Murder manslaughter differently? Murder and attempted murder?and attempted murder?

Crime and CondemnationCrime and Condemnation

Is there an indissoluble link Is there an indissoluble link between criminal punishment between criminal punishment and societal condemnation?and societal condemnation?

Is it ever OK to punish (even Is it ever OK to punish (even severely) someone who did severely) someone who did nothing morally wrong?nothing morally wrong?

Purposes and Purposes and AlternativesAlternatives

What are the purposes of criminal What are the purposes of criminal punishment? What ends does it punishment? What ends does it serve?serve?

Why punish at all? (Recent case Why punish at all? (Recent case in Vermont)in Vermont)

What are some possible What are some possible alternatives?alternatives?

When and why is punishment When and why is punishment preferable?preferable?

ConsequentialismConsequentialism

Consequentialism is the thesis Consequentialism is the thesis that only consequential that only consequential considerations should be considerations should be relevant.relevant.

The best known version of The best known version of consequentialism is consequentialism is utilitarianism (the best law is utilitarianism (the best law is the one that maximizes total the one that maximizes total happiness).happiness).

Punishing the innocentPunishing the innocent

There are obvious There are obvious consequentialist reasons for consequentialist reasons for notnot (in general) punishing the (in general) punishing the innocent.innocent.

However, many critics of However, many critics of consequentialism have argued consequentialism have argued that in some cases, it would that in some cases, it would justify doing so: the anti-justify doing so: the anti-lynching thought experiment.lynching thought experiment.

Publicity and Publicity and TransparencyTransparency

The standard consequentialist The standard consequentialist response to this objection is to response to this objection is to fall back to “rule fall back to “rule consequentialism” (rule consequentialism” (rule utilitarianism).utilitarianism).

The rule of utility applies only The rule of utility applies only to public, transparent practices to public, transparent practices & institutions, not individual & institutions, not individual actions or decisions.actions or decisions.

Two Remaining ProblemsTwo Remaining Problems Consistency: If consequences are Consistency: If consequences are all that matter, how can the all that matter, how can the utilitarian justify sticking to a utilitarian justify sticking to a rule in cases where utility is not rule in cases where utility is not served?served?

Failure of generality: In some Failure of generality: In some cases (strict liability, punishing cases (strict liability, punishing the insane), utilitarianism may the insane), utilitarianism may justify public practices that justify public practices that punish the innocent.punish the innocent.

Malum in se vs. malum Malum in se vs. malum prohibitumprohibitum

Some acts of lawbreaking Some acts of lawbreaking involve doing something involve doing something inherently evil -- malum in inherently evil -- malum in se.se.

Others are evil only because Others are evil only because they involve breaking the they involve breaking the law.law.

Examples of malum prohibitum?Examples of malum prohibitum?

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

What are the similarities?What are the similarities? What are differences?What are differences?

Malum prohibitum & Malum prohibitum & strict liabilitystrict liability

If we object to strict liability If we object to strict liability on the grounds of fairness, would on the grounds of fairness, would the same objection apply with the same objection apply with equal force to rejecting the equal force to rejecting the ignorance-of-the-law excuse in ignorance-of-the-law excuse in the case of malum prohibitum the case of malum prohibitum offenses?offenses?

Is the mental element equally Is the mental element equally innocent in both cases?innocent in both cases?

Strict vs. negligent Strict vs. negligent liability?liability? Wasserstrom argues that there is Wasserstrom argues that there is no significant difference -- both no significant difference -- both are lacking the mental element.are lacking the mental element.

Is negligent liability ever a Is negligent liability ever a more reasonable standard than more reasonable standard than strict?strict?

Consider specific cases: Balint, Consider specific cases: Balint, Lindberg, Prince (statutory Lindberg, Prince (statutory rape), Bakerrape), Baker

Felony MurderFelony Murder

Enmund v. Florida: death Enmund v. Florida: death penalty sentence of getaway penalty sentence of getaway car driver overturned.car driver overturned.

Tison v.Arizona: death Tison v.Arizona: death penalty upheld. Defendants penalty upheld. Defendants were major players, present were major players, present at the scene.at the scene.

Tison dissentTison dissent

Tisons did not act with reckless Tisons did not act with reckless disregard for human life.disregard for human life.

Prior agreement that no one would Prior agreement that no one would get hurt. Defendants surprised by get hurt. Defendants surprised by killings.killings.

Could not have prevented killings.Could not have prevented killings. Distinction is rooted in “our Distinction is rooted in “our belief in the freedom of human belief in the freedom of human will”.will”.

Discussion QuestionsDiscussion Questions

How would you have voted in Enmund v. How would you have voted in Enmund v. Florida?Florida?

How in Tison v. Arizona?How in Tison v. Arizona? Is there a significant difference? Why Is there a significant difference? Why or why not? Which objections to strict or why not? Which objections to strict liability apply to this issue? Which liability apply to this issue? Which don’t?don’t?

Hypothetical: truck driver unwittingly Hypothetical: truck driver unwittingly runs over little girl while committing runs over little girl while committing a felony (smuggling).a felony (smuggling).