Abstract

http://ssrn.com/abstract=323400
 
 

Citations (1)



 
 

Footnotes (190)



 


 



Does Punishment for 'Culpable Indifference' Simply Punish for 'Bad Character'? Examining the Requisite Connection between Mens Rea and Actus Reus


Kenneth W. Simons


Boston University - School of Law

August 7, 2002

Buffalo Criminal Law Review, Vol. 6

Abstract:     
The conventional mental state or culpability categories recognized in the criminal law are purpose, knowledge, recklessness, and negligence. Should the law also recognize as an additional category some version of "culpable indifference"? Yes, according to a number of scholars; and some courts have also recognized this category, especially in the context of depraved heart murder. Culpable indifference can describe a modestly culpable mental state, sufficient for manslaughter liability (or, with respect to a circumstance element, roughly equivalent in seriousness to cognitive recklessness). It can also identify a more aggravated form of culpability, sufficient for murder (or, with respect to a circumstance element of an offense, roughly equivalent in seriousness to knowledge).

But some critics raise an important objection: punishing those who display culpable indifference punishes for "character" rather than for "acts," and is no more justifiable than punishing a person for a free-floating mental state (for example, punishing a pure bystander who takes perverse delight in another's commission of a crime). By contrast, punishment for acts accompanied by the more conventional mental states of purpose, knowledge, and recklessness supposedly is not subject to this objection.

This paper explores when culpable indifference is indeed especially problematic in punishing merely for an attitude disconnected from conduct, and when it is not. The connection problem, we will see, is much more manageable on some formulations of culpable indifference. At the same time, this problem is hardly unique to culpable indifference; connection problems arise to a surprising extent with the conventional mental states of purpose, knowledge, and recklessness, as well.

Two types of culpable indifference standards are distinguished. The first is a cognitive counterfactual criterion, and it asks whether the actor would have chosen to create a risk even if he had a higher degree of confidence (than he actually had) that it would result in harm. This approach must be carefully circumscribed in order to avoid the "punishment merely for character" objection. The second type of culpable indifference standard is an idealized counterfactual criterion, and it asks whether (and to what extent) the actor's conduct falls short of what an idealized, non-indifferent person would do. This approach does not pose the "punishment for character" objection; however, it raises serious problems of vagueness. To some extent, these problems can be overcome by articulating more specific, multiple criteria of culpable indifference (for example, the actor's intent to create a risk, or his participation in an immoral or illegal activity, or, as a mitigating factor, his efforts to avoid harm).

Number of Pages in PDF File: 62

Keywords: punishment, mental state, mens rea, blame, culpability, recklessness, concurrence

JEL Classification: K140, K14

Accepted Paper Series


Download This Paper

Date posted: August 19, 2002  

Suggested Citation

Simons, Kenneth W., Does Punishment for 'Culpable Indifference' Simply Punish for 'Bad Character'? Examining the Requisite Connection between Mens Rea and Actus Reus (August 7, 2002). Buffalo Criminal Law Review, Vol. 6. Available at SSRN: http://ssrn.com/abstract=323400 or http://dx.doi.org/10.2139/ssrn.323400

Contact Information

Kenneth W. Simons (Contact Author)
Boston University - School of Law ( email )
765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-4701 (Phone)
617-353-3077 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 4,386
Downloads: 318
Download Rank: 52,468
Citations:  1
Footnotes:  190

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.297 seconds