Intent Reconceived

Author:Jay Sterling Silver
Position:Professor of Law, St. Thomas University School of Law
Pages:371-403
SUMMARY

This Essay builds the foundation of a new paradigm in legal intent that advances justice by producing an accurate fit between the blameworthy states of mind and the formal rules by which we measure culpability and punishment. The Essay begins by challenging the pervasive conflation of the states of mind of purpose and desire, a fundamental conceptual error sponsored by William Prosser, the dean... (see full summary)

 
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371
Intent Reconceived
Jay Sterling Silver
ABSTRACT: This Essay builds the foundation of a new paradigm in legal
intent that advances justice by producing an accurate fit between the
blameworthy states of mind and the formal rules by which we measure
culpability and punishment. The Essay begins by challenging the pervasive
conflation of the states of mind of purpose and desire, a fundamental
conceptual error sponsored by William Prosser, the dean of American tort law.
The Essay then reveals the ambiguity inherent in our general notion of
purpose by distinguishing between its non-culpable, aspirational aspect and
culpable “executory purpose” that triggers the wrongdoer’s act. The concept of
executory purpose also overturns the traditional view that the states of mind
of purpose and knowledge are independent prongs of legal intent. Instead,
this Essay argues that the decision to act, which signifies a defendant’s moral
and legal culpability and underlies the state of purpose, constitutes a
necessary condition of knowing action, making the division of intent into
purpose or knowledge a false dichotomy. In turn, the Essay asserts that, in
Garratt v. Dailey—the monument to tortious intent entrenched in first-year
casebooks for over half a century—the Washington Supreme Court’s remand
to inquire into Brian Dailey’s knowledge after the trial court found no purpose
constitutes a logical contradiction. Finally, this Essay reconstrues the mental
states of desire and knowledge as aggravating factors, like “premeditation,”
in the grading of criminal offenses and the measurement of punishment.
These insights generate new analytical tools in the calculus of culpability.
This Essay asserts the reconstruction of intent as executory purpose—
unfettered by the conflation of purpose and desire, the mistaken use of the
aspirational sense of purpose, and the mirage of the knowledge prong—
ultimately achieves a seamless fit between our mental states and the doctrine
of legal intent.
Professor of Law, St. Thomas University School of Law. The author is grateful to
Professors Siegfried Wiessner, Robert Mensel, Lauren Gilbert, and John Kang f or their helpful
review of prior drafts, to Nicole Kwapisz for her able research assistance, and, in particular, to
Professor Beth Krancberg for her tireless feedback and wise insights.
372 IOWA LAW REVIEW [Vol. 101:371
I. INTRODUCTION ............................................................................. 373
II. THE ODYSSEY OF LEGAL INTENT IN ANGLO-AMERICAN LAW ........ 374
A. THE MAZE OF INTENT UNDER THE MODEL PENAL CODE ........... 375
B. THE TORTUOUS PATH OF TORTIOUS INTENT ............................ 376
III. PROSSERS MISCONCEPTION: THE CONFLATION OF DESIRE AND
TORTIOUS INTENT ........................................................................ 378
A. THE PERVASIVE USE OF DESIRE IN LEGAL INTENT ...................... 379
B. OF MICE AND MEN: A LITERARY ILLUSTRATION OF THE
DIFFERENCE BETWEEN THE MENTAL STATES OF DESIRE AND
PURPOSE ................................................................................. 382
C. DISTINGUISHING PREFERENCES FROM DESIRES .......................... 385
D. FROM BAD TO WORSE: VIEWING ALL ACTION AS THE PRODUCT
OF DESIRE ............................................................................... 386
E. THE DISTINCT ROLES OF THE MENTAL STATES OF DESIRE AND
PURPOSE ................................................................................. 387
F. VIEWING DESIRE AS INTENT: CONFUSING AN ASPIRATIONAL
STATE WITH AN EXECUTORY STATE .......................................... 388
G. “PURPOSE OR DESIRE”: THE CONFUSION OF AN ASPIRATIONAL
STATE WITH AN EXECUTORY STATE REPRISED ........................... 388
IV. THE LEGITIMACY OF PURPOSE AS LEGAL INTENT .......................... 390
A. THE INTEREST OF UNIFORMITY IN CRIMINAL AND TORTIOUS
INTENT ................................................................................... 390
B. THE DISTINCTION BETWEEN ASPIRATIONAL AND EXECUTORY
PURPOSE ................................................................................. 390
C. THE MISTAKE OF ASPIRATIONAL PURPOSE IN THE MODEL
PENAL CODE ........................................................................... 391
D. THE SOURCE OF THE CONFUSION OF DESIRE AND PURPOSE ......... 391
V. THE DEMISE OF “KNOWING INTENT IN CRIMINAL LAW AND
TORTS ........................................................................................... 392
A. THE FALSE DICHOTOMY OF PURPOSIVE AND KNOWING INTENT:
PURPOSE AS A NECESSARY CONDITION OF KNOWING ACTION ..... 392
B. AN ILLUSTRATION OF THE RELATIONSHIP OF KNOWLEDGE AND
EXECUTORY PURPOSE .............................................................. 393
C. THE ALTERNATIVE CRITIQUE OF THE KNOWLEDGE PRONG ........ 396
D. THE UNRAVELING OF GARRATT V. DAILEY ............................... 396
1. The Decision .................................................................. 396
2. The False Dichotomy of Purpose and Knowledge as
the Downfall of Garratt .................................................. 397
2015] INTENT RECONCEIVED 373
3. The Symbiotic Masking Effect of the Conflation of
Desire and Purpose and the False Dichotomy of
Purpose and Knowledge ............................................... 398
4. The Real Lesson of Garratt: Hard Cases Make Bad
Law ................................................................................. 398
VI. RECONCEIVING DESIRE AND KNOWLEDGE AS AGGRAVATING FACTORS
IN THE CALCULUS OF CULPABILITY ............................................... 398
VII. CONCLUSION ................................................................................ 400
APPENDIX A .................................................................................. 402
I. INTRODUCTION
From capital punishment to punitive damages, the gravest sanctions of
American justice are reserved for those who act with intent—the most
egregious form of fault. As with the concept of legal insanity, however, intent
resides along the murky boundaries of law, psychology, philosophy, and
cognitive science. As our knowledge in these areas evolves, theories shift, and
the legal doctrines upon which they rest crumble to the ground, to be rebuilt
according to stricter standards. The disjointed evolution of the insanity test in
our criminal law, from “McNaughton’s Rule through the “Irresistible
Impulse,” Durham “Product,” and the American Law Institute’s (“ALI”)
“Substantial Capacity” tests to the present amalgam of rules, is a classic
illustration.1 An even more radical conceptual shift, as revealed herein, will
generate the building blocks of a new paradigm of legal intent in Anglo-
American law.
The impending shift in legal intent traces back to two fundamental and
widespread misconceptions entrenched in the case law, treatises, and
casebooks on criminal law and torts. The first misconception, documented in
Part II, is the nearly universal notion that purpose-based intent is synonymous
with the desire to bring about a consequence. By contrasting the aspirational
nature of a desire with the executory nature of the state of mind of purpose-
based intent, however, the flaw in the conflation of purpose and desire is
revealed in Part III.
Part IV sets the stage for the identification of the second misconception,
revealing the ambiguity inherent in criminal and tort law definitions of
purpose, and then closely comparing the purposeful and knowing states of mind
memorialized in the ALI’s Model Penal Code (“MPC”) and Restatement
(Third) of Torts that are firmly rooted in case law and legal scholarship. Part
1. See DANIEL N. ROBINSON, WILD BEASTS & IDLE HUMORS: THE INSANITY DEFENSE FROM
ANTIQUITY TO THE PRESENT 161–203 (1996); see also WAYNE R. LAFAVE, PRINCIPLES OF CRIMINAL
LAW § 6, at 272–305 (2d ed. 2010).

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