A Case for Criminal Negligence

Abstract

I join the chorus of congratulations for Larry Alexander, Kim Ferzan, and Stephen Morse for the contributions their book makes to our understanding of the criminal law.1 The book seeks to achieve nothing less than a comprehensive theory of the crime and punishment, one that tries to reorient the thinking of scholars and policy makers toward a single theory of justice based on blameworthiness and retribution. Regardless of whether we are ultimately convinced by the conclusions, we can all admire the scholarly ambition and risk-taking the project requires, and appreciate the many insights the authors provide. I learned a lot from this book; it both advanced and unsettled my prior thinking on a whole range of topics. But ultimately the book failed to persuade me. I remain far from certain that a single theory can explain the criminal law; more doubtful than ever that, even if a single theory is possible, retributive theory is the right tool for the job; and skeptical that a unified theory is even desirable. Doing justice to the authors' larger thesis would require a review as long as the book, so my goals here are modest. In the next few pages I will address the authors' critical corollary claim that negligence does not form an appropriate basis for criminal liability, and explain why I think it is wrong, at least as a matter of first principles. I then raise some questions about the proposed practical application of the theory to a revised