The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. I argue that responsibility judgments in ordinary morality are based on the agent’s having acted intentionally, and that an agent does intentionally what he chooses to do. Because agents choose to bring about those effects of their actions they foresee as reasonably likely to follow from what they do, they are responsible for such effects. They are not responsible for effects they do not foresee, or for effects they deem highly unlikely, and they ought not to be held criminally liable for them either.
Criminal Law and Procedure, Criminal Sentencing, Law and Society, Social Science and the Law, Social Welfare
Finkelstein, Claire Oakes, "Responsibility for Unintended Consequences" (2005). Faculty Scholarship at Penn Law. 999.
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