Intoxication and Culpability

I tackle the difficult problem of specifying how voluntary intoxication affects criminal culpability generally and recklessness in particular. I contend that the problem need not be conceptualized as an instance of actio libera in causa, namely the situation in which persons do something at t1 to culpably create the conditions of their own defense at t2. Instead, I argue that we need only consider intoxicated defendants at t2 in order to justify their punishment. In the course of defending my view, I challenge conventional wisdom about both the nature of recklessness and the effects of intoxicants. I conclude by discussing a possible ground on which involuntary intoxication might be treated differently.     

Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting

Commentators seemingly agree about what negligence is—and how it is contrasted from recklessness. They also appear to concur about whether particular examples (both real and hypothetical) portray negligence. I am less confident about each of these matters. I explore the distinction between recklessness and negligence by examining a type of case that has generated a good deal of critical discussion: those in which a defendant forgets that he has created a substantial and unjustifiable risk of harm. Even in this limited kind of example, no single perspective on blame and liability proves to be defensible. Nonetheless, a discussion of this type of case is helpful because it enables us to appreciate the difficulties in understanding the nature of negligence and the ensuing uncertainty about whether penal liability for negligence is ever warranted.     

Mistake of Law and Culpability

When does a defendant not deserve punishment because he is unaware that his conduct breaches a penal statute? Retributivists must radically rethink their answer to this question to do justice to our moral intuitions. I suggest that modest progress on this topic can be made by modeling our approach to ignorance of law on our familiar approach to ignorance of fact. We need to distinguish different levels of culpability in given mistakes and to differentiate what such mistakes may be about. I discuss the advantages and disadvantages of this approach with special attention to how to contrast offenses from defenses. The alternative I tend to favor probably should not be implemented in existing penal codes. As a result, we are likely to remain dissatisfied with the decisions made by our criminal justice system about the exculpatory effect of ignorance of law.     

Retributivism and Over-Punishment

Law and Philosophy - Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has...