Crime and Culpability: A Theory of Criminal Law

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This book presents a comprehensive overview of what the criminal law would look like if organized around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. They conclude with a discussion of rules versus standards in criminal law and offer a description of the shape of criminal law in the event that the authors' conceptualization is put into practice.
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Product Details

Meet the Author

Larry Alexander is the Warren Distinguished Professor of Law at the University of San Diego. He has authored and co-authored five books, most recently Is There a Right to Freedom of Expression and, with Emily Sherwin, Demystifying Legal Reasoning.

Kimberly Kessler Ferzan is associate dean for faculty affairs and professor of law at Rutgers University School of Law, Camden. The author of numerous articles, essays, and book chapters on criminal law theory, she is co-founder and co-director of the Rutgers-Camden Institute for Law and Philosophy.

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Table of Contents

Acknowledgments xiii

Part 1 Introduction: Retributivism and the Criminal Law

1 Criminal Law, Punishment, and Desert 3

I The Criminal Law and Preventing Harm 4

II Questions about Retributivism 7

III Conclusion 17

Part 2 The Culpable Choice

2 The Essence of Culpability: Acts Manifesting Insufficient Concern for the Legally Protected Interests of Others 23

I Unpacking Recklessness 25

II Folding Knowledge and Purpose into Recklessness 31

III A Unified Conception of Criminal Culpability 41

IV Proxy Crimes 66

3 Negligence 69

I Why Negligence Is Not Culpable 70

II Attempts at Narrowing the Reach of Negligence Liability 71

III The Strongest Counterexample to Our Position 77

IV The Arbitrariness of the Reasonable-Person Test 81

4 Defeaters of Culpability 86

I Justifications and Excuses: Reorienting the Debate 88

II Socially Justifying Reasons 93

III Excuses 134

IV Mitigating Culpability 162

Part 3 The Culpable Act

5 Only Culpability, Not Resulting Harm, Affects Desert 171

I The Irrelevance of Results 172

II The Intuitive Appeal of the "Results Matter" Claim 175

III "Results Matter" Quandaries 178

IV Free Will and Determinism Reprised 188

V The Immateriality of Results and Ancestral Culpable Acts 191

VI The Immateriality of Results and Inchoate Crimes 192

VII Inculpatory Mistakes and the Puzzle of Legally Impossible Attempts 194

6 When Are Inchoate Crimes Culpable and Why? 197

I Our Theory of Culpable Action 198

II Some Qualifications and Further Applications 216

7 The Locus of Culpability 226

I The Unit of Culpable Action 228

II Culpability for Omissions 234

III Acts, Omission, and Duration 241

IV IndividuatingCrimes 244

Part 4 A Proposed Code

8 What a Culpability-Based Criminal Code Might Look Like 263

I An Idealized Culpability-Based Criminal Code 264

II From an Idealized Code to a Practical One: Implementing Our Theory in "the Real World" 288

Epilogue 325

Appendix 327

Bibliography 331

Index 349

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