HABIT, CRIME, AND CULPABILITY.

• Author: Johnson, Eric A.

INTRODUCTION 36 I. JUDGING THE CULPABILITY OF HABITUAL BEHAVIOR 42 A. Framing the Question: State v. Lewis 43 B. Lapse Cases and the Insights of Tort Scholars 47 C. Over-Inclusiveness Cases 52 D. How Habits Control Conduct 59 E. Can Criminal Law, Like Tort, Ignore Temporally Extended Rationality? 65 F. Evaluating Habits in Practice 68 II. TOWARDS A GENERAL THEORY OF CULPABILITY 72 A. Extending the Argument: Habits of Thinking and Feeling 73 B. Negligence, Recklessness, and the Habit of Trust 76 C. Provocation and the Habit of Pride 8? D. Duress and the Habit of Loyalty 88 III. WHY THE PROPOSED APPROACH IS BETTER THAN THE ALTERNATIVES 93 A. The Conscious-Wrongdoing Approach 94 B. The Capacity Approach 98 C. The Character Approach 102 CONCLUSION 106 INTRODUCTION

Culpability is a mystery. If you ask a lawyer what culpability is, they'll probably say something about so-called culpable mental states. (1) But this isn't right. Mental state requirements in criminal statutes are mostly designed to ensure that the actor's conduct is objectively wrongful, not that it is culpable. (2) Wrongfulness, after all, usually is about the risk posed by an actor's conduct. (3) And the risk posed by an actor's conduct is measured according to "the circumstances known to him," in Holmes's and the Model Penal Code's definitive formulation. (4) To decide whether the actor's conduct is wrongful, then, the factfinder has to determine what the actor knew. (5) It is mostly to this end that statutes require proof of the actor's mental states. (6)

The fact that the conduct's wrongfulness is judged from the actor's perspective is part of what makes the separate culpability requirement so mysterious. (7) If the wrongdoing component of criminal liability already requires proof that the actor knew the very facts in which the conduct's risk inhered, why would the law require anything more? What function is left for the culpability component to perform? (8)

The usual answer to this question--that the culpability requirement operates as "a concession to human weakness"--is frustratingly vague. (9) This vagueness is reflected, for example, in what the Model Penal Code says about culpability. The Code's commentary acknowledges that the recklessness and criminal negligence standards require the factfinder to make a separate "culpability judgment," over and above its wrongfulness judgment. (10) But when it comes time to say what this culpability judgment consists of--to say exactly what distinguishes culpable wrongdoing from wrongdoing that merely is expressive of ordinary human fallibility--the commentary punts: "There is no way to state this value judgment that does not beg the question in the last analysis; the point is that the jury must evaluate the actor's conduct and determine whether it should be condemned." (11) The Code takes the same approach to culpability-negating "excuse" defenses like duress and extreme emotional disturbance. (12) The commentary says, in effect, that both defenses require factfinders merely to decide whether they are able to identify with the actor despite his or her wrongdoing.

In this Article, I will challenge the view that the culpability requirement is a concession to human weakness. Building on insights by philosopher Michael Bratman and others, I will argue that the culpability requirement is, rather, a concession to the varieties of human rationality. The wrongdoing component is addressed to one sort of rationality, which I will call time-slice rationality. (13) The culpability component is addressed to another, namely temporally extended rationality.

Time-slice rationality, as embodied in the criminal law's wrongdoing component, is about the downstream risks and benefits of the actor's conduct under "the circumstances known to him." (14) To decide whether the actor's conduct is wrongful, the factfinder applies a criminal law variant of the so-called Hand formula. (15) And in applying this Hand formula variant, the factfinder treats the actor as a "time-slice agent," who calculates the act's risks and benefits "from scratch" in the instant before the act. (16) In effect, the factfinder treats the actor as if the actor, in that instant, had thought about all the possible causal sequences that might be set in motion by the conduct, had assigned probabilities to these causal sequences on the basis of "the circumstances known to him," (17) had assigned values to possible outcomes, and finally had aggregated these values and balanced the cumulative risks against the benefits.

Everybody realizes, of course, that actors rarely if ever engage in the sort of full-blown deliberation that is presupposed by the Hand formula. (18) In reality, some or all of this idealized deliberative process usually will be preempted by the actor's habitual ways of thinking, feeling, or behaving. (19) Sometimes, behavioral habits will short-circuit the deliberative process entirely; they will cause the actor to perform a bodily movement "in a reflexive, automatic manner" without any conscious deliberation at all. (20) Even when the actor does consciously deliberate before acting, habits of thought or feeling will short-circuit aspects of the deliberative process. (21) They might cause the actor to ignore certain facts or risks, for example. (22) They might affect the values the actor assigns to possible outcomes. (23) Or they might cause the actor unconsciously to exclude possible alternative courses of action from his or her deliberations. (24)

This is not to say, of course, that the criminal law shouldn't concern itself with time-slice rationality of the sort that is captured by the Hand formula. It makes sense for the criminal law to require, as one component of liability, that the risks posed by the actor's conduct (the risks that inhered in the circumstances known to him or her) actually were unjustified, whether the actor bothered to think about them or not. (25) That is why the criminal law requires wrongdoing. The significance of habit's pervasive role in human decision-making is, rather, merely that it shows how incomplete the wrongdoing analysis is--how much the wrongdoing component leaves out. It leaves out all the facts about how the actor actually arrived at a decision.

The facts about how the actor actually arrived at a decision are, presumably, the subject of the culpability requirement then. But how do these facts figure? On the prevailing view of the culpability requirement as a concession to human weakness, we presumably would view the actor's reliance on habit as an expression of human weakness. (26) On this view, the habits themselves would count as malign influences that prevented the actor from realizing that the conduct was wrongful. The actor's culpability would hinge on whether his or her vulnerability to these malign influences represented understandable human weakness, or did not.

The central difficulty with this view is its assumption that the actor's habits represent malign influences on the actor's deliberative process. This assumption seems plausible enough at first glance. After all, if the actor's habit caused him or her to engage in wrongdoing, then the habit must itself be irrational, right?

Actually, no. As I will argue, even rational habits--that is, even habits that over an extended period will increase the frequency with which the actor does the right thing--sometimes will result in conduct that is wrongful from a time-slice perspective. (27) What is more, when a rational habit generates conduct that is wrongful or irrational from a time-slice perspective, the conduct itself will, paradoxically, partake of the habit's rationality. So the conduct will be irrational from one perspective and rational from another perspective. The two perspectives cannot be combined, moreover, or collapsed into one another. Rationality is irreducibly twofold.

Which explains why criminal liability, too, is twofold. (28) Criminal law's wrongdoing component measures the conduct's rationality from a time-slice perspective. The culpability component, by contrast, measures the conduct's rationality from a temporally extended perspective. This understanding of culpability, as compared with the dominant "concession to human weakness" understanding, doesn't just have the advantage of capturing the twofold nature of rationality. It also has the important practical advantage of being meaningful. For the empty question whether the factfinder can identify with the actor, it substitutes a question no less concrete than the question posed by the Hand formula itself, namely, whether the risks posed by the habits that generated the conduct outweigh the habits' benefits.

This Article will be divided into three parts. Part I will focus narrowly on behavioral habits--on habits that tell the actor what to do, rather than what to think or feel. Within this narrow framework, I will argue that even desirable habits can generate wrongful conduct and that, when they do, punishment of the actor for the habit-generated conduct is inconsistent with the criminal law's aims. I will also suggest, more ambitiously, that the distinctive kind of rationality associated with desirable habits is what the culpability component of criminal liability really is all about.

Part II will expand the argument's scope. As William James said, habits influence not only what we do but what we think and feel as well. (29) In Part II, I will argue that desirable habits of thought and feeling, like desirable habits of doing, can generate wrongful conduct. And I will argue that the exculpatory import of these desirable habits of thought and feeling explains traditional culpability doctrines. The best explanation for the defense of duress, for example, is that the defense evolved to exculpate actors whose conduct was generated by desirable habits of loyalty. Likewise, the best explanation for the heat-of-passion defense is that the defense evolved to exculpate...