Crime and Culpability: A Theory of Criminal

This book presents a comprehensive overview of what the criminal law would look like if organized around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. They conclude with a discussion of rules versus standards in criminal law and offer a description of the shape of criminal law in the event that the authors' conceptualization is put into practice.

Acknowledgments	p. xiii
Introduction: Retributivism and the Criminal Law
Criminal Law, Punishment, and Desert	p. 3
The Criminal Law and Preventing Harm	p. 4
Questions about Retributivism	p. 7
Conclusion	p. 17
The Culpable Choice
The Essence of Culpability: Acts Manifesting Insufficient Concern for the Legally Protected Interests of Others	p. 23
Unpacking Recklessness	p. 25
Folding Knowledge and Purpose into Recklessness	p. 31
A Unified Conception of Criminal Culpability	p. 41
Proxy Crimes	p. 66
Negligence	p. 69
Why Negligence Is Not Culpable	p. 70
Attempts at Narrowing the Reach of Negligence Liability	p. 71
The Strongest Counterexample to Our Position	p. 77
The Arbitrariness of the Reasonable-Person Test	p. 81
Defeaters of Culpability	p. 86
Justifications and Excuses: Reorienting the Debate	p. 88
Socially Justifying Reasons	p. 93
Excuses	p. 134
Mitigating Culpability	p. 162
The Culpable Act
Only Culpability, Not Resulting Harm, Affects Desert	p. 171
The Irrelevance of Results	p. 172
The Intuitive Appeal of the ôResults Matterö Claim	p. 175
ôResults Matterö Quandaries	p. 178
Free Will and Determinism Reprised	p. 188
The Immateriality of Results and Ancestral Culpable Acts	p. 191
The Immateriality of Results and Inchoate Crimes	p. 192
Inculpatory Mistakes and the Puzzle of Legally Impossible Attempts	p. 194
When Are Inchoate Crimes Culpable and Why?	p. 197
Our Theory of Culpable Action	p. 198
Some Qualifications and Further Applications	p. 216
The Locus of Culpability	p. 226
The Unit of Culpable Action	p. 228
Culpability for Omissions	p. 234
Acts, Omission, and Duration	p. 241
Individuating Crimes	p. 244
A Proposed Code
What a Culpability-Based Criminal Code Might Look Like	p. 263
An Idealized Culpability-Based Criminal Code	p. 264
From an Idealized Code to a Practical One: Implementing Our Theory in ôthe Real Worldö	p. 288
Epilogue	p. 325
Appendix	p. 327
Bibliography	p. 331
Index	p. 349
Table of Contents provided by Ingram. All Rights Reserved.

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Crime and Culpability: A Theory of Criminal Law

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