Justice, Liability, and Blame: Community Views and the Criminal Law.

• Author: Slobogin, Christopher

Paul H. Robinson & John M. Darley, Justice, Liability, and Blame: Community Views and the Criminal Law (Boulder: Westview Press, 1995). 307 pp.

The relationship between popular opinion and law is a complicated one, especially in a society like ours that is both democratic and concerned about individual rights and moral justice. In this country the tension has been apparent at least since the eighteenth century, when James Madison and Alexander Hamilton clashed with the anti-federalists over how "representative" the people's representatives should be.(1) Ought law to be a reflection of the people's will, a distillation of the best theoretical insights, or some combination thereof and, if the latter, how does one titrate the mixture of lay and theoretical input?

In Justice, Liability and Blame, Paul Robinson, a well-known law professor, end John Darley, a respected social scientist, force one to ponder this question, in the stimulating context of fashioning criminal law doctrine. The book is primarily a description of eighteen studies aimed at probing community opinion about a wide range of criminal law issues, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder rule, and the in toxication and insanity defenses. In presenting these studies, the authors subscribe to two key premises. First, they believe that lay opinion should influence substantive criminal law. Second, they believe that they can accurately ascertain that opinion. After briefly describing the most intriguing findings of their research, this review analyzes these two premises and concludes that both may require significant caveats. The overall conclusion, however, is that the book is a major breakthrough in the application of the scientific method to criminal law issues, and should be viewed both as a rich source of ideas for criminal theory and as a model for interdisciplinary work.

1. The Results

   All of the studies in Justice, Liability and Blame followed the same format. First, a group of lay subjects, usually around forty in number, was selected. The group was then asked to read a series of scenarios depicting variations on a core fact pattern. For instance, in the study designed to plumb attitudes toward the act requirement for attempt, the subjects read about Ray, a locksmith. In one scenario, Ray tells a friend of his that he has decided to rob a safe in a coin shop, but does nothing to implement this plan. In other scenarios he undertakes various steps before his plan is discovered, from reconnoitering the store to opening the safe door. In the final scenario, he completes the crime. After reading these scenarios, the subjects were asked to assign to each a liability rating, on a thirteen-point scale that the authors used throughout the research.(2) The authors then report the average liability score of the group, as well as related information, for each scenario.

   Recounting all of the interesting findings discussed in Justice, Liability and Blame would take up too much space. Instead, this review canvasses the results which most directly challenge accepted common law or Model Penal Code positions,5 since those results have the greatest potential implications for the criminal law. Perhaps the most important overall finding in this regard is the significant conflict between the lay subjects' opinions and the theory undergirding the Model Penal Code (MPC). The Code generally endorses a "subjective" defendant-centered approach to assessment of criminal liability; the subjects, in contrast, tended to evaluate liability from an "objective" harm-oriented perspective, similar to that found in traditional common law. A second important finding is the tendency of the lay people in these studies to recognize fine gradations in determining punishment. This tendency stands in contrast to the all-or nothing approach to liability generally found in the criminal codes.

   Illustrations of both types of attitudes are found in Study 1, involving attempt.(4) The MPC provides that any "substantial step" toward completion of a crime that is corroborative of intent is sufficient conduct for an attempt conviction. In contrast, Robinson and Darley's subjects would impose(5) little or no liability in such a situation, even when the person has the purpose of committing the crime. Instead, they reserved significant punishment only for those who, acting with the intent to commit the crime, have engaged in conduct which demonstrates an unequivocal purpose or which comes dangerously close to completing the offense (which is the common law approach). The subjects also strongly rejected the Model Penal Code stance that the punishment for attempt should be identical to the punishment for the completed offense; instead, as under the common law, they indicated that attempt should be graded much lower than the completed crime. Further, contrary to both the MPC and the common law, the subjects believed that renunciation of a completed offense should result in significant mitigation. At the same time, they indicated that renunciation of an attempt should not be a complete defense to attempt liability, as it is under the Model Penal Code, but rather should be only a mitigating factor.

   The subjects in Studies 2 and 3 also evidenced discomfort with the Model Penal Code's subjective approach and with the law's preference for rigid categories of liability. In Study 2,6 the subjects were given a series of scenarios in which the actor intended to kill someone else through poisoning, but which varied the risk of harm and the degree of harm that could occur. The subjects indicated that the key determinants of liability should be the actual probability the crime will occur (rather than the probability perceived by the actor) and the seriousness of the actual harm posed (rather than the harm intended by the actor). Similarly, in Study 3,7 the subjects required actual encouragement for accomplice liability, thus rejecting the Model Penal Code's imposition of punishment for unsuccessful encouragement. Further, in contrast to both the and the common law, they recognized gradations of accomplice liability depending upon the actual assistance provided, and under no circumstances were willing to give the accomplice the same punishment as the principal.

   In Study 4,(8) which looked at lay attitudes toward omission liability, the lay subjects felt that even a person with no duty toward a drowning person should be liable for a failure to save (except when there is significant danger in doing so). Conversely, even a person with a significant duty to act and an ability to do so in an easy and safe manner was not punished as severely as one with the same mental state who affirmatively commits the act. Again, these results are contrary both to the and to the common law.

   The subjects were also much more willing to provide a "justification" defense than most codes. For instance, in Study 5,9 the subjects were reluctant to punish a person who has the ability to retreat from an attack. In Study 6,(10) the subjects recognized a complete defense for use of nondeadly force in defense of property, and assigned only minimal liability to those who use deadly force in defense of property. Similarly, in Study 7,(11) the subjects seemed to believe that use of deadly force should be permitted in effecting an arrest even if no officer is involved, and that negligently killing an innocent person in the course of an arrest should result in little or no liability. All of these results are in conflict with the Model Penal Code and, to a lesser extent, the common law.

   Differences between the subjects and the law were apparent in connection with mental state issues as well. Study 8(12) indicated that subjects were willing to assign liability based on negligence; at the same time, the subjects in Study 11(13) believed that negligence should be individuated (that is, reasonableness should be viewed from the perspective of a person "in the actor's situation"(14)). While acceptance of negligence as a basis for liability is closer to the common law than the MPC (which recognizes such liability only in connection with homicide and a few other areas), the individuation of negligence is closer to the MPC position in those cases when it does permit punishment for negligent acts. Indeed, the subjects in Study 11 appeared willing to go further than the MPC in this regard. They indicated that a person's heredity and intelligence should be considered part of the actor's "situation"; even the MPC, while generally open to individuation, specifically labels these factors irrelevant in its commentary. A third study about mental state,(15) Study 9, found that lay people were willing to impose accomplice liability (albeit at a minimal level) even in cases where a person is only reckless as to the outcome of his or her encouragement. This result also diverges from the legal view, which requires the accomplice to have either purpose or knowledge as to the principal's conduct (perhaps because, in contrast to what the subjects in Study 3 would do, the law punishes the accomplice like a principal). Finally, Study 10,(16) on voluntary intoxication, found that a person's intentions as to causing death at the time of becoming intoxicated (as opposed to at the time of the death) is a very important variable to lay subjects, whereas it is irrelevant under the MPC and the common law.

   Two of the three studies on excuses produced interesting divergences between lay and legal opinion. Study 12(17) found that, in contrast to the federal insanity test, but consonant with the MPC's approach, volitional dysfunction due to mental illness is considered a ground for exculpation by the subjects. In Study 14(18) the subjects indicated that entrapment depends upon the degree of coercion by the government agent, not the target's predisposition or the immoral nature of the police conduct (the two...