Intent Reconceived

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

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 for 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. 371 372 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 AngloAmerican 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 purposebased 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). 374 IOWA LAW REVIEW [Vol. 101:371 V explains the nature of the misconception, demonstrating that the state of purpose is actually a necessary condition of knowing action. As such, the conventional view that the states of mind of purpose and knowledge represent distinct forms of culpability—as represented in Garratt v. Daily, the seminal case on tortious intent on which first-year law students have cut their teeth for more than half a century—is shown to be based upon a false dichotomy, and the ostensible distinction between purpose and knowledge evaporates into thin air. Finally, Part VI demonstrates that knowledge of a high probability that a particular consequence will occur, and the desire to bring the consequence about, actually represent nothing more or less than aggravating factors in the calculus of culpability. II. THE ODYSSEY OF LEGAL INTENT IN ANGLO-AMERICAN LAW “[A]ctus not facit reum nisi mens sit rea (an act does not make one guilty unless his mind is guilty).”—Latin maxim2 “[A] civilized society does not punish for thoughts alone.”—Model Penal Code 3 Over the vast span of the common law, at least 78 terms have been employed to connote the state-of-mind requirement of intent in criminal law,4 including terms such as “evil-meaning mind,”5 “callously,” “spitefully,” “heedlessly,”6 and the oxymoronic “willfully neglects.”7 Scholars and jurists 2. See LAFAVE, supra note 1, § 4.1(a), at 166. 3. MODEL PENAL CODE § 2.01 cmt. 1 (AM. LAW INST., Official Draft and Revised Comments 1962) (1985). 4. S. REP. NO. 95-605, pt. 1, at 55 (1977). “By as early as the thirteenth century . . . English courts had begun to require proof that the person charged with a criminal offense had a culpable state of mind.” JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW §10.01, at 117 (5th ed. 2009). 5. DRESSLER, supra note 4, § 10.02[B], at 118. 6. See, e.g., N.J. STAT. ANN. § 2C:11-5 hist, n. (West 1981) (criminal homicide can be found when death was caused by driving a vehicle carelessly and heedlessly, in a willful or wanton disregard of the rights or safety of others). The statute was amended to have a recklessness standard by 1981 N.J. Laws 1222 (West). 7. S....