Criminalizing Endangerment-A Comment

• Author: Marcelo Ferrante
• Position: Assistant Professor, Universidad Torcuato Di Tella School of Law (Buenos Aires, Argentina)
• Pages: 967-984

Page 967

We often criminalize types of actions, at least partially, because they cause or are likely to cause bad states of affairs, typically, harm to others. In his article Criminalizing Endangerment,¹ Professor

Antony Duff proposes classifying offenses into two separate groups, attacks and endangerments, depending on whether or not offenders act with the intention to cause harm (or risk of harm).² Roughly stated, the rationale for the distinction between attacks and endangerments is that each kind of offense expresses a distinctive attitude toward the people or interests it harms (or threatens to harm). This distinction marks a significant moral difference in that each kind of offense instantiates a different kind of moral wrong. Professor Duff articulates this difference as follows: whereas attacks express "a practical hostility toward the interests or people" against whom they are addressed,³ endangerments do not express such an attitude. At most, they manifest only a certain degree of indifference.⁴ Page 968

The core of Professor Duff's argument is best described as the conjunction of two separate theses. First, actions that equally cause (risk of) harm to others instantiate different kinds of moral wrongs, depending on whether or not such actions express an attitude of hostility. (I will call this the thesis of attitudes as wrong-makers.) Second, actions driven by the intention to cause (risk of) harm⁵ always express hostility, whereas actions not so guided never express hostility. At most, they express merely indifference. (I will call this the perfect correspondence thesis.) The conjunction of these two theses yields that: 1) actions causing (risk of) harm that are performed with the intention to cause such harm (or risk thereof) and 2) actions that are not guided by such intention but are otherwise equal in effect to the former type of actions are instances of two different kinds of moral wrongs. The categories of attack and endangerment are meant to capture this distinction.⁶

If it is true that criminal laws should mirror the moral distinction between attacks and endangerments, then Professor Duff's argument, being correct, entails substantial implications for our current criminal law practices. For instance, current legal definitions of criminal offenses often disregard the contrast between causing harm with the intention to cause it and causing harm with mental states other than intention (e.g., knowledge or recklessness).⁷ These criminal laws thus treat equally offenses that, according to Professor Duff's argument, constitute different kinds of moral wrongs. If, however, legal definitions of criminal offenses are to track moral differences, Page 969we should modify our current practices so that actions driven by the intention to harm and those not so driven are dealt with as offenses of different types.⁸

Similarly, current criminal laws often stretch the mens rea requirements for attempted liability to encompass not only actions in which agents intend to bring about harm, but also those in which agents only believe their conduct will cause harm.⁹ Professor Duff's argument suggests that we should restrict the law of attempts to cases of intention and leave the rest, if they are to be criminalized at all, to some other form of inchoate liability.¹⁰ Again, the problem would be that laws of attempts that have an overly broad scope blur the moral difference between attacks and endangerments.

I believe there are good reasons for granting Professor Duff's first thesis (the thesis of attitudes as wrong-makers). What I shall dispute in this comment is Professor Duff's second thesis (the perfect correspondence thesis), for I believe the alleged necessary correspondence between, on the one hand, intending harm and expressing hostility and, on the other hand, not intending harm and not expressing hostility (only, at most, indifference) does not hold. At the least, I believe it is more problematic than Professor Duff suggests.

Section I of this comment states why I think we may grant the thesis of attitudes as wrong-makers. Sections II and III advance my case against the perfect correspondence thesis.

I Attitudes as wrong-makers

Actions instantiate wrongness by virtue of descriptive properties that they bear. We may call these properties wrong-makers, for bearing them makes an action wrongful. "Harm to others" is a wrong-maker: all other things being equal, the fact that an action of mine will harm you makes my action wrongful. I ought not to perform this action because it will harm you. Furthermore, harm to others is an uncontroversial wrong-maker. Claiming otherwise would commit us to an implausible view of morality under which the harmful consequences of our actions are not relevant considerations for deciding how to act. Page 970

In order for Duff's proposed moral distinction between attacks and endangerments to hold, it must be the case that besides performing actions that cause harm (or create risk of harm) to others, the attitudes agents manifest through these actions also count as wrong-makers. For, let us recall, the attitudes agents express toward those they harm (or risk harming) distinguish attacks from endangerments as wrongs of different kinds. This is in contrast to their effects or causal character, in which attacks and endangerments are indistinguishable. Thus again, what is peculiar to attacks is that they express hostility whereas endangerments do not, though they may express a degree of indifference.

In order to accommodate this distinction, we need a view of morality which entails not only preventing bad consequences and bringing about good ones, but also being sensitive to other forms of regard. So-called "expressive" theories of morality offer such a view.¹¹ These theories posit generally that according others their due is not just a matter of avoiding harm or contributing to well-being, but a question of holding and expressing through action the right sort of attitudes. For instance, we owe our children more than a given level of physical or economic well-beingCwe ought to love them; caring for their welfare represents a part of this broader duty.

The duty not to harm others may be similarly analyzed. Our claim that we are not to be harmed by others is thus part of a more general claim that we be regarded as the kind of valuable beings we actually are. Actions which are equally harmful in their causal effects, then, can wrong their victims in different ways if they express different forms of regard by those who perform them. If, say, I harm you for the heck of it, I may wrong you in a different way than if I harm you inadvertently, even though both actions may be indistinguishable in terms of the risks they impose and the harms they actually bring about. In harming you for the heck of it, I express my view that the fact that you will be harmed gives me no reason at all not to perform the action which harms you; I straightforwardly deny that you have any value at all that may count against my whimsCI may harm you for no particular reason at all.

In these terms, then, we may thus claim that in regarding you as such a valueless thing, I am violating your moral claim to be viewed as intrinsically valuable. If I harm you inadvertently, however, it is at most ambiguous whether my attitude toward you is as offensive as described above. I may fail to accord you the value that is your due, Page 971but I do not necessarily regard you as an utterly valueless thing that I may harm at will and for no particular reason.

Professor Duff's proposed terminology of hostility and indifference adequately characterizes the attitudes manifested in these examples:¹² In intentionally harming you, I express hostility toward you, for I straightforwardly deny you any value; in inadvertently harming you I reveal a sort of indifference toward you, for I simply do not care how or whether my behavior will affect you. A view of morality that distinguishes between such attitudes when evaluating the moral status of actions may lead to different judgments of wrongfulness for one and the other action. In such a view, each action instantiates a different kind of moral wrong by virtue of the attitudes it manifests, hence the use of different terms to designate these different wrongs: "attack" for the hostility-expressing wrong and "endangerment" for the wrong that imposes harm or a risk of harm without expressing hostility. Page 972

This sketchy argument shows why Professor Duff may plausibly claim that the wrongness of actions stems in part from the attitudes agents express in performing them, such that hostility-expressing actions which cause harm or risk of harm are wrongful in a way that otherwise equal but non-hostility-expressing actions are not.¹³ To this extent, we may grant Duff's thesis of attitudes as wrong-makers.

II The perfect correspondence thesis

Duff's argument is completed by what I have called the perfect correspondence thesis. According to this thesis, the two kinds of moral wrongs captured by the terms "attacks" and "endangerments" are perfectly correlated with features of the actions' intentional structure. In particular, Duff contends, harm-causing (or risk- imposing) actions guided by the intention to cause (risk of) harm necessarily express hostility toward the persons or interests they are addressed to, whereas harm-causing (or risk-imposing) actions that are not guided by the intention to cause (risk of) harm never express hostility; in cases of recklessness or negligence, they may express some degree of indifference.¹⁴

If true, the perfect correspondence thesis offers a simple way of making our criminal laws reflect precisely the moral differences that the notions of attack and endangerment purport to capture. These concepts are, in Duff's terms, "thick"...