Wednesday, August 26, 2009
Last week, with tongue in cheek, I titled a blog post about my new book (with Kimberly Ferzan) as “The Last Word on Criminal Law.” As if to demonstrate to the whole world that I was only kidding, Alec Walen has posted a review of the book on SSRN. The review was summarized on CrimProf yesterday.
We thank Alec for his kind comments about our book and for the effort he has put in in criticizing it. His criticisms boil down to these four, to which we append our responses:
1. We don't justify treating mistakes of how much concern is "sufficient concern" as nonexculpatory when we treat mistakes of fact as exculpatory. Reply: But someone who treats subjecting people to huge risks for trivial reasons just is displaying insufficient concern even if he doesn't so regard it. On the other hand, as we argue in the book, one who doesn't know the riskiness of his behavior cannot be accused of insufficient concern on that ground alone.
2. We don't justify regarding negligence as nonculpable. Reply: Unfortunately, Walen doesn't engage the arguments we make in chapter 3 on this very point. His remarks suggest he holds the "culpability comes from the character defects that led the person to be unaware of the risk" position. But we deal with that position at some length, and Walen doesn't respond to our arguments.
3. Our repudiation of "result luck affects retributive desert" overlooks the many ways luck affects how we fare in life. Reply: Luck surely does this. But one doesn't have to be a luck egalitarian to deny that luck affects the blame or punishment we deserve. All Walen does is give some consequentialist reasons for singling out harm-causers among the persons deserving of punishment. He does nothing to show that those who imposed what they believed were the same risks but whose acts did not result in harm are less deserving of punishment.
4. In a footnote, Walen quarrels with our position on incomplete attempts and other inchoate crimes. Reply: Our position is surely controversial, and it does lead to the position Walen finds ludicrous (assuming the practical joker is, like the would-be murderer, brandishing a loaded gun that might accidentally discharge). That's a bullet we bite. But if one rejects our position, we demonstrate that one is led to the position that the act of intending harm is itself a culpable act, which then leads to the many puzzles and difficulties we describe in ch. 6. So there's a different bullet one needs to bite if one thinks ours is too hard on the teeth. We lay out that challenge in ch. 6, but Walen doesn't take it up.