In our view, an actor deserves punishment when he demonstrates insufficient concern for others, that is, when he engages in a culpable act of risk creation. In this essay, we address how we would rethink the actus reus so as to track the actor's culpability and blameworthiness. Part I sets forth our view that defendants deserve to be punished for culpable acts. Briefly put, an actor is culpable when he risks others' legally protected interests for insufficient reasons. In Part II, we turn to the question of how we would formulate a unit of culpable action. We argue that with respect to criminal acts, the criminal law should focus on the willed bodily movement as the unit of culpable action. We believe, however, that some omissions are also the appropriate targets of the criminal law, and we discuss how our view places significant reliance on omissions. We also add an additional element to our criminal law arsenal-we argue that the duration of the risk (as the actor perceives it) also affects the actor's culpability and thus the punishment he deserves. In Part III, we turn to the question of how to individuate crimes. We begin by defending our view that we should abandon crime types in favor of a general prohibition against risk creation to legally protected interests. We also argue that this approach eliminates bedevilling act-type individuation problems created by complex action descriptions. We then turn to how to individuate tokens of risk creation. Here, we argue that each willed bodily movement is a new action; that multiple criminal acts are not subject to "volume discounts," but the degree of premeditation may affect the actor's ultimate culpability; and that continuous courses of conduct may be but one act of extended duration. We conclude by arguing that our view is more perspicuous because the number of crimes an actor has committed is but a rough proxy for his overall blameworthiness. In contrast, our account which includes risks reasons, quality of deliberation, and perceived duration of risk fully captures all the aspects of an actor's blameworthiness.
culpability, desert, risk of harm, volition
Ohio State Journal of Criminal Law
Alexander, Larry and Ferzan, Kimberly Kessler, "Culpable Acts of Risk Creation" (2008). All Faculty Scholarship. 2607.