Fitting the Model Penal Code into a Reasons-Responsiveness Picture of Culpability.

AuthorAntill, Gregory

NOTE CONTENTS INTRODUCTION 1348 1. TENSIONS BETWEEN THE REASONS-RESPONSIVENESS THEORY AND THE PKRN MENS REA REGIME 1353 A. The Reasons-Responsiveness Conception of Culpability 1353 B. Intrahierarchical Variance 1355 C. The Normative Challenge of Intrahierarchical Variance 1360 D. Reconciling Intrahierarchical Variance: PKRN as Culpability Proxies 1363 II. INTERHIERARCHICAL VARIANCE BETWEEN THE REASONS- RESPONSIVENESS AND PKRN ACCOUNTS OF SUBJECTIVE CULPABILITY 1366 A. Showing Interhierarchical Variance 1366 1. A General Recipe for Constructing Examples of Interhierarchical Differences 1366 2. The Normative Significance of Interhierarchical Culpability Differences 1368 3. Examples of Interhierarchical Differences in Criminal Homicide Case Law 1369 B. Responding to the Argument for Ordinal Convergence 1372 C. The Empirical Significance of Interhierarchical Culpability Differences 1375 III. RECONCILING INTERHIERARCHICAL DIFFERENCES: SOME FIRST STEPS 1378 CONCLUSION 1383 INTRODUCTION

According to the familiar Purpose, Knowledge, Recklessness, and Negligence (PKRN) mens rea regime introduced in the American Law Institute's Model Penal Code (MPC) in 1962 and now dominant in American criminal law, (1) the criminal liability of an agent who commits some offense varies depending on whether the agent acted purposefully, knowledgeably, recklessly, or negligently with respect to the material elements of that offense. (2) MPC section 2.02(1) establishes that for a person to be guilty of an offense, they must have at least one of these four culpable mental states. (3)

MPC section 2.02(5) establishes a weak ordering among the four mental states. For any given material element, each of the four PKRN mental states involves as much or more liability than the subsequent state. (4) Where the severity of crimes is graded based on mens rea, this ordering hierarchy is typically used to establish the respective grades. (5) If, for example, someone causes the death of another person (the material element of criminal homicide under MPC section 210.1), their criminal homicide will be classified as a murder if their action was purposeful. But they will typically be guilty merely of manslaughter, a lesser offense, if they were only reckless with respect to the victim's death, and of the even less severe crime of negligent homicide if they were only negligent with respect to the victim's death. (6) That is, if they did not intend the death they caused (and so did not act purposefully under MPC section 2.02(a)), but merely believed there was some substantial probability that a death might result from their actions (and so acted recklessly under MPC section 2.02(c)), they will be considered less liable for that act, and so guilty of a lesser grade of offense and subject to lesser criminal penalties.

Influenced by historical mens rea distinctions from the old common-law homicide doctrine, the MPC does occasionally engage in more fine-grained parsing of mens rea in its analysis of criminal homicide than it does for other crimes, as with the addition of "reckless[ness]... manifesting extreme indifference to the value of human life" (7) (equivalent to ordinary purpose or knowledge for thepurposes of grading under MPC section 210.2(b)), and purpose "under the influence of extreme mental or emotional disturbance" (8) (equivalent to ordinary recklessness for the purposes of grading under MPC section 210.3(b)). It also provides affirmative defenses that can function as full or partial shields to liability based on more finely grained features of the defendant's subjective psychology. (9) Still, despite the potential for such mitigating or aggravating factors to affect criminal liability on the margins, the PKRN hierarchy provides the backbone of the MPC's model of criminal liability and ensures at least a weak ordinal sorting of criminal liability. Though a purposeful homicide, for example, may sometimes be treated similarly to particularly severe cases of reckless homicide, the offender who commits a purposeful homicide will never be held less liable than an offender who commits negligent criminal homicide, nor will a case of aggravated reckless homicide be treated as involving more liability than ordinary cases of purposeful homicide. (10)

Underlying the MPC grading regime appears to be a crucial normative commitment to (1) the view that an agent's responsibility for some act, and hence their subjective culpability, is a function of the proximate mental states behind the act, and (2) a substantive view about which proximate subjective mental states are normatively worse (that is, make the agent more culpable) than others. The same agent performing the same act is more culpable if they intended the effect (purpose) (11) than if the effect was foreseen but unintended (knowledge), (12) even less culpable if merely a risk of the effect was foreseen (recklessness), (13) and less culpable still if they unreasonably failed to foresee any risk of the effect at all (negligence). (14) Call the conjunction of (1) and (2) the PKRN picture of subjective culpability. While this picture of subjective culpability provides the most straightforward explanation for the MPC's mens rea hierarchy, it is rarely articulated explicitly, and even more rarely defended. (15) Recent empirical work also calls into question the widespread assumption that the PKRN picture of subjective culpability maps onto the common-sense intuitions of the average lay juror. (16)

The MPC grading regime's apparent reliance on the PKRN picture of subjective culpability is particularly problematic because that picture is widely rejected by most contemporary moral philosophers and criminal-law theorists who hold instead what might broadly be labeled a "reasons-responsiveness" conception of culpability. (17) According to this reasons-responsiveness conception of culpability, an actor's bad state of mind consists not in their intentions, purposes, knowledge, or negligence, but rather in the responsiveness of their reasoning capacities, which their actions (given their purposes, knowledge, recklessness, or negligence) evince. (18)

This Note compares the PKRN mens rea regime with the reasons-responsiveness conception of subjective culpability. While many criminal-law theorists are cognizant of these different conceptions of subjective culpability, criminallaw theory has deeply underestimated the degree to which these conceptions are in tension with one another, and so underappreciated the downstream normative consequences of these two different underlying pictures of subjective culpability for substantive criminal law.

This Note proceeds in three parts. Part I explains in more detail the reasonsresponsiveness conception of culpability and draws out the tensions caused by contemporary criminal-law theory's joint commitments to both a PKRN system of criminal liability and a reasons-responsiveness conception of criminal culpability.

Part II, the heart of this Note, argues that the degree of tension between these joint commitments has been underestimated. In particular, while criminal-law theorists have noted ways in which a reasons-responsiveness picture of subjective culpability may lead to more fine-grained distinctions of criminal responsibility than the PKRN picture, and so lead to what I call mfrahierarchical differences in criminal responsibility for particular offenses, almost all theorists have assumed that the two pictures of subjective culpability generally converge when it comes to the general relative culpability judgments of actions performed purposefully, knowingly, recklessly, or negligently. These theorists therefore conclude that, even if we reject the PKRN picture of subjective culpability, we can still maintain the PKRN mens rea hierarchy as a sufficiently good culpability proxy to form the basis of a normatively justifiable criminal law. (19)

In contrast, Part II demonstrates that the reasons-responsiveness picture of subjective culpability leads not just to intrahierarchical differences--cases where the reasons-responsiveness picture attributes differing degrees of culpability to two similarly situated offenders with the same PKRN mens rea states--but to interhierarchical differences in culpability attribution as well. That is, for the same offense, the reasons-responsiveness picture will sometimes attribute more culpability to certain agents with a lesser mens rea state on the PKHN hierarchy, such as recklessness or negligence, than to someone with a higher mens rea state on the PKRN hierarchy, such as purpose. I argue that these cases of interhierarchical variance are not merely conceptually possible but are likely to be widespread in some of the most important cases of criminal homicide liability. I argue that we should expect cases of negligent or reckless criminal homicide--like that of Derek Chauvin's second-degree manslaughter conviction for negligently causing the death of George Floyd (20)--which involve the least criminal liability in the MPC mens rea regime, to frequently involve substantially more culpability than the typical purposeful homicide, which subjects agents to the most liability on the MPC mens rea regime. (21) This means that the shift from a reasons-responsiveness conception of culpability to the PKRN mens rea model involves not just a loss of information and so minor differences in the culpability of equally liable actors, but substantial and systematic mismatches between offenders' culpability and criminal liability. In addition to these important normative results, I also show how closer attention to these interhierarchical differences can provide an alternative, and compelling, explanation for recent empirical results concerning experimental subjects' sorting of traditional PKRN mens rea states that run counter to the MPC's expectations.

Finally, Part III considers how we might amend the MPC to accommodate a reasons-responsiveness picture...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT