Opaque recklessness.

AuthorFerzan, Kimberly Kessler

INTRODUCTION

Imagine this scenario: you are driving to work and running very late. Up ahead, you see a yellow light that you know will be red by the time you reach the intersection. Because you are in such a hurry to get to work, you decide to run the red light. Lo and behold! A pedestrian walks in front of your car; you are unable to brake in time; and you kill the pedestrian.

For causing this death, you are guilty of criminal homicide. (1) However, the degree of your offense, i.e., whether it is murder, manslaughter, or negligent homicide, depends on your mental state with regard to causing the death. (2) What was your mens rea? Well, clearly it was not purpose or knowledge. It was not your conscious object to kill the pedestrian, nor did you believe that it was practically certain that you would kill the pedestrian. (3)

Were you reckless? Under the Model Penal Code, to be reckless, an actor must consciously disregard a substantial and unjustifiable risk. (4) Thus, for you to have been reckless here, you must have consciously disregarded the substantial and unjustifiable risk that you could kill someone as a result of your actions. But you did not engage in this mental calculation. While you knew that there was some inherent danger in running the red light, (5) you certainly never thought, "well, I might kill someone but I am going to run that light anyway." (6)

And indeed, there are those risk-takers who do consciously disregard the possibility of killing someone and therefore are reckless as defined by the Model Penal Code. Some people do engage in risky behavior, fully acknowledging the possibility that their actions could cause substantial and unjustifiable harm to others. (7) I will refer to a person whose mental state satisfies the Model Penal Code's definition of recklessness as being "purely reckless."

Since your mental state does not fall within the Model Penal Code's definitions of purpose, knowledge, or recklessness, the Model Penal Code then leaves us with negligence. Were you simply negligent? Were you merely unreasonably unaware of the substantial and unjustifiable risk that you were presenting? (8) No, you were more than negligent. Compared to a negligent actor, who, for example, changes the radio station and is thus unreasonably unaware that he is even running the light, much less posing the risk of killing pedestrians, you are certainly more culpable. You were fully cognizant of the fact that you were running the red light and that your action presented some inherent danger.

So what do we do with you when your sense of the risk was opaque? You knew that your conduct was "risky" or "dangerous," but failed to advert to and consciously disregard the specific reason why your conduct was dangerous and risky (because death might result). I will refer to your mental state as "opaque recklessness." (9)

Why is this puzzle so important? Currently, the Model Penal Code uses recklessness as the minimum level of culpability for most crimes. (10) Yet opaquely reckless actors do not fall within the ambit of the Model Penal Code, and, thus, their behavior falls outside the boundaries of most crimes.

Indeed, consider the death of Morgan Pena, a 2-1/2 year-old killed by a driver using a cell phone. The driver, distracted by dialing the phone, ran a stop sign and collided with the Pena's car, killing Morgan. The driver received two citations, for careless driving and for failure to observe a stop sign, and was fined $50. The driver was not charged with homicide by vehicle because the police determined that the driver was not reckless, only careless, a result that appears to be correct according to the Model Penal Code's definition of recklessness. (11)

But perhaps the question should have been whether the driver was opaquely reckless--did he recognize that driving while dialing a cell phone was a dangerous thing to do? Should the driver escape responsibility for the death because he never thought, "if I use this cell phone, I may become distracted, run a stop sign, and kill a small child?"

Hence, people who knowingly engage in risky behavior but fail to think through why their actions are "risky" or "bad" or "dangerous," may not be subject to any criminal responsibility. Yet, by their choices to engage in dangerous actions, these people have shown themselves to be culpable, and thus deserving of punishment, as well as deterrable, since they know the dangerousness of their acts and therefore can decide whether to commit those acts. Consequently, if we believe that opaque recklessness should suffice for criminal responsibility, either we need to expand the definition of recklessness to include opaque recklessness or we must create a new mental state.

Moreover, the flip side also presents a problem. That is, the law, in its current state, presents the danger that opaquely reckless people are being treated as purely reckless, and hence, our criminal justice system may be treating them as more culpable than they actually are. (12) For example, South Dakota's Supreme Court suggested that merely being aware of the dangerous nature of one's conduct will suffice for manslaughter; the defendant need not foresee death as a result. (13) But doesn't it matter why the opaquely reckless actor thinks his conduct is dangerous? What if he never foresees the prospect that someone might die? Should the disregard of "dangerousness" suffice for responsibility for manslaughter?

Finally, for theorists who believe that results do not matter for blameworthiness and punishability, (14) responsibility rests upon the actor's choice. While many theorists advance this argument in the context of attempts and completed crimes, few focus on the result that this argument would have for reckless actors. That is, such a theory commits one to holding that the reckless driver who does not kill someone should be held as responsible as the reckless driver whose conduct results in death. But what do we hold the opaquely reckless actor to have risked? With opaque recklessness, what the actor chose to risk, and therefore what he should be held accountable for, is, well, opaque.

In this Article, I contend that opaque recklessness presents both descriptive and normative challenges to the Model Penal Code's definition of recklessness. Before meeting these challenges head-on, however, in Part I, I discuss whether opaque recklessness can be resolved without rethinking recklessness by collapsing opaque recklessness within the current framework of the criminal law. After concluding that opaque recklessness cannot be so resolved, in Part II, I explore the work of R.A. Duff and Kenneth Simons--both of whom have advanced a broader definition of recklessness, (15) a definition that encompasses the concept of practical or culpable indifference--to determine whether opaque recklessness falls within the scope of their analyses. After reaching the conclusion that an indifference theory is inherently problematic and therefore is an unsatisfying solution to the problem, in Part III, I argue that we should rethink what we mean by "consciously disregarding" in the Model Penal Code's definition of recklessness. That is, I suggest that while the opaquely reckless actor is aware that he is taking a "dangerous" risk on a conscious level, on a preconscious level, the actor may be aware of the meaning of that "dangerousness," e.g., that death may result. I then discuss the normative implications of this conclusion and aver that an opaque choice, where part of the description of the risk exists on a preconscious level, is still sufficiently the product of the actor's practical reasoning so as to justify holding the actor accountable for it. After concluding Part III by exploring the relationship between the preconscious and responsibility, in Part IV, I turn to the doctrinal implications for opaque recklessness.

  1. CAN OPAQUE RECKLESSNESS BE RESOLVED WITHIN THE CURRENT FRAMEWORK OF THE CRIMINAL LAW?

    The natural response to opaque recklessness is to deny the problem. Since the criminal law has at its disposal many methods of snaring culpable actors within its grasp, perhaps we already have the tools to solve the opaque recklessness dilemma. We might decide that if the actor chooses to risk "harm" and the harm turns out to be "death," we should simply substitute "harm" for "death" with regard to the defendant's mens rea, thus holding the opaquely reckless actor responsible for choosing to risk the death that does occur. Alternatively, we should consider whether this is simply a matter of "time framing," and if we look back in time, we will find a (transparent) culpable choice on which we can place responsibility. We might even say that the choice not to analyze the risk is equivalent to a willful blindness of sorts. After all, we do place responsibility on an actor who does not "know" a material fact exists as required by a statute, where we believe that the actor made a culpable choice not to know of the existence of the fact. In this section, I will discuss these alternatives and demonstrate that neither substitution nor a time framing/willful blindness analysis can cast light through the opacity.

    1. SUBSTITUTION

      Let's first look at substitution. Can we substitute the harm the opaquely reckless actor does foresee--i.e., an amorphous danger or risk--for the actual harm that materializes--e.g., death, injury, property damage? In the case of the opaquely reckless actor who runs a red light and hits a pedestrian, can we not say that the opaquely reckless actor chose to risk "harm"; the harm turned out to be "death"; and therefore, the opaquely reckless actor chose to risk "death?"

      The criminal law certainly has taken such an approach at times. For example, an Ohio court held that a defendant who left his wife violated a statute making it a crime for a husband to abandon his pregnant wife. (16) There, the defendant intended to leave his wife, his wife, unbeknownst to...

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