CrimProf Blog

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

Tuesday, September 12, 2023

Funk on Rethinking Culpability

T. Markus Funk has posted Rethinking Culpability on SSRN. Here is the abstract:

"Culpability” for good reason plays a central role in justice systems around the world. Yet, as this article argues, in the U.S. this foundational concept tied to moral responsibility traditionally received a surprisingly crimped construction. The Model Penal Code, for example, narrowly uses moral culpability of perpetrators as a means of “grading” offenses and calibrating sentences. State and federal legislative enactments and scholarly analysis follow suit.

Under this prevailing perpetrator-centric approach, “harm” refers to the concrete damage (or the “injury”), such as physical pain and damage or loss of property, the alleged offender caused. Culpability, on the other hand, is thought to tell us what was going on in the perpetrator’s mind so that we can assess how morally blameworthy the perpetrator’s conduct was.

What is missing is the recognition that criminal conduct in fact inflicts two very distinguishable forms of “injury” to the victim. First, there is the concrete harm to the victim’s person or property. Second is the extent to which the perpetrator’s conduct imposed “unequal standing” on the victim. This article demonstrates that it is this second category of injury that the U.S. justice system fails to appropriately consider.

“Unequal standing,” after all, is rooted in the understanding that a democratic society tethered to a common set of legal ground rules presumes a willing and engaged population. The essential precondition for such success is that people have an equal concern and reciprocal respect for one another’s rights. Put another way, the population voluntarily buys into the system because the individuals in it in broad terms respect those rules, including the obligation to recognize and safeguard each other’s “equal standing” in the public sphere.

Unlike totalitarian systems that resort to brute force to conform the public’s behavior, democracies founded on the rule of law must truly earn the public’s respect for their legal rules. They depend on the public’s willingness to voluntarily self-police conduct in the sense of voluntarily conforming their conduct to these rules. Only when the people maintain such relationships of restraint between and among each other can a justice system effectively preserve fundamental human rights.

The position advanced here, then, is that the U.S. justice system’s prevailing offender-centric perspective is due for a rethink. We must recognize that a perpetrator’s decision to unjustifiably elevate his or her own interests over those of the victim inflicts a very distinct injury. Viewing culpability through a more victim-centric lens opens the avenue to a holistic understanding of the full scope of a perpetrator’s conduct. By recognizing and labeling the imposition of unequal standing as a distinct injury we, in turn, acknowledge and reinforce the equality-supporting civic bonds so vital to a flourishing society.

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