Retributivism Refined - Or Run Amok?
Kenneth W. Simons, Retributivism Refined - Or Run Amok?, 77 U. Chi. L. Rev. 551 (2010).
What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors - Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse - provide a controversial set of answers. Whether a criminal act does or does not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced to a single idea: “Do not be reckless; do not knowingly take risks that are clearly unjustifiable in light of your reasons for taking those risks.” Few scholars and even fewer legislators will be persuaded. Nevertheless, the authors have written an engaging, lively, philosophically astute book of remarkable breadth, depth, and originality.
In this book review, I first point out that, to some extent, the authors are consequentialists in retributivist clothing. Turning to the authors’ analysis of recklessness, I investigate two critical questions: Can recklessness really suffice as the sole criterion of culpability? (The answer, alas, is no.) And, is their requirement of “conscious awareness” of risk too demanding? (Indeed it is.) In the last section, I address a surprising phenomenon, the reappearance of the reasonable person as a central requirement of their culpability criterion, notwithstanding their unequivocal rejection of the reasonable person as part of a criterion of liability for culpable inadvertence to risk. I then critique that reincarnation.