75 Pages Posted: 13 Sep 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.
Keywords: voluntary manslaughter, negligent homicide
JEL Classification: J14
Suggested Citation: 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: https://ssrn.com/abstract=929748