Citations (1)



What's Wrong with Involuntary Manslaughter?

Stephen P. Garvey

Cornell Law School

Cornell Legal Studies Research Paper No. 06-028
Texas Law Review, Vol. 85, 2006

Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk-creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it.

I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk-creation. Instead, I propose that an actor who creates a risk of causing death but who was unaware of that risk can fairly be subject to retributive punishment if he was either non-willfully ignorant or self-deceived, and if such ignorance or self-deception was due to the causal influence of a desire he should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypothetical choice to do wrong, but in the culpable failure to exercise doxastic self-control: control over one's beliefs.

Number of Pages in PDF File: 75

Keywords: voluntary manslaughter, negligent homicide

JEL Classification: J14

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Date posted: September 13, 2006  

Suggested Citation

Garvey, Stephen P., What's Wrong with Involuntary Manslaughter?. Cornell Legal Studies Research Paper No. 06-028; Texas Law Review, Vol. 85, 2006. Available at SSRN: http://ssrn.com/abstract=929748

Contact Information

Stephen P. Garvey (Contact Author)
Cornell Law School ( email )
Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-8589 (Phone)
607-255-7193 (Fax)
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