CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 1, 2009

Featured Download: Bandes on Punishing Negligence


Susan A. Bandes  (DePaul University - College of Law) has posted Is it Immoral to Punish the Heedless and Clueless? (Law and Philosophy , 2010) on SSRN. Here is the abstract:

This essay, written for a symposium on the book Crime and Culpability: A Theory of Criminal Law, by Larry Alexander, Kim Ferzan and Stephen Morse, responds to the authors’ argument that the criminal law should not punish negligent behavior. The authors argue that criminal culpability should be measured in light of the level of risk the actor himself perceives, and that we are not morally culpable for taking risks of which we are unaware, even if our lack of awareness is objectively unreasonable. They contend that for the negligent actor, the failure to advert to risk is beyond the actor’s control, and beyond the influence of the criminal law, at the critical moment of action. It follows, they argue, that negligent conduct should not be culpable, since punishing negligence would require holding actors responsible when their failure to advert to a risk, however unreasonable, did not entail a conscious choice.

The consequences that flow from the authors’ initial descriptive assumptions about awareness and choice are significant. The authors declare objective reasonableness standards for evaluating negligent behavior off-limits since objective standards would lead to punishment for a state of mind the actor did not in fact possess. And because the authors assume that negligent behavior lacks the element of choice and therefore falls below the threshold for culpability, they deem it improperly consequentialist to consider whether punishing negligence would promote the penal goal of communicating and enforcing norms for future conduct. The essay raises concerns about this distinction, questioning whether the criminal law's norm-creation and norm-enforcement functions can be readily distinguished from its role in assessing moral desert.

One obvious drawback of doctrines that insulate negligent conduct from criminal liability is that they reward heedless and clueless behavior. The actor who somehow failed to advert to well-know risks is off the hook, while the actor who adverted to such risks and engaged in the risky behavior anyway may be liable. Nevertheless, this essay does not argue that criminal negligence liability is necessarily a matter of good policy. It argues that the authors have taken the policy debate off the table based on questionable assumptions about the nature of consciousness, choice and character. The authors’ normative argument that negligence liability must be rejected as a threshold matter relies heavily on their descriptive assumption that the negligent actor is impervious to influence or correction--an assumption that is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience.

To me, Bandes's criticism seems to miss the gist of the argument by Alexander et al. They do not contend that punishing negligence can have no effect on negligent behavior, though that is a significant part of Bandes' critique. Even if punishing negligence can induce some to become more careful, Alexander et al. argue that those who do not advert to risk have not necessarily made the kind of culpable choice that retributively justifies punishment. Nor does the variety of possible levels of consciousness make any difference if one is attracted to the position of Alexander et al. that "cognitive awareness" is necessary to just punishment.


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Include among the "clueless" all the white-collar targets bulldozed into prison in recent years for actions they (and often lawyers who'd advised them in business activities) had no idea were imprisonable offenses until the FBI came knocking.

Fact is, it's difficult to support the notion "ignorance of the law is no excuse" in a time when "creative" prosecutors armed with vague, sweeping RICO laws and harsh sentencing guidelines (even if only advisory) can criminalize virtually any activity.

Not knowing what business practices might land you in prison these days can hardly even be considered negligence.

Posted by: John K | Oct 2, 2009 7:08:14 AM

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