Intent Reconceived

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

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. PROSSER’S 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).