Abstract
The counterfactual mental state of negligent criminal activity invites skepticism from those who see mental states as essential to responsibility. Here, I offer a revision of the mental state of criminal negligence, one where the mental state at issue is actual and not merely counterfactual. This revision dissolves the worry raised by the skeptic and helps to explain negligence’s comparatively reduced culpability.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
For further details as well as consideration of the relevant mens rea element of the negligence offence involved, see Montgomery v. Texas, 369 S.W.3d 188 (Tex. Crim. App. 2012). Many cases of criminal negligence in the public record are driving cases, reflecting the combination of high stakes and easy familiarity that marks driving.
A three-quarter ton pickup truck is a pickup truck rated to carry three quarters of a ton; such trucks often themselves weigh nearly five tons without their payload.
Although this is the standard objection to criminal negligence, it is certainly not the only important question relating to negligence. The family of objections that includes the standard objection denies that negligent wrongdoers are responsible for their negligence. Another family of objections is skeptical that we can satisfyingly distinguish negligent wrongdoing from risky non-wrongdoing. My suspicion is that my answer to the standard objection might also help us to answer those further questions, but I set them aside as separate from the heart of the standard control objection.
For key texts on the moral philosophy side, see Harry Frankfurt (1969) and John Martin Fischer and Mark Ravizza (1998). For key texts on the legal philosophy side, see H. L. A. Hart (2008), Joseph Raz (2010), and Antony Duff (2009a, b). For a systematic connection between the two, see David Brink and Dana Kay Nelkin (2013).
See, for instance, Brink (2021) for a powerful survey of the explanatory power of compromised and absent control. The mental element of control is especially apparent in the criminal law’s insanity defense, illustrated by Model Penal Code § 4.01.
As Marcia Baron (2020) points out, recklessness as defined by the Model Penal Code requires more than mere awareness of the risk; it requires conscious disregard of the risk. Supposing (plausibly) that one might be aware of some downside without consciously disregarding it (and, given the fact of wrongdoing, without heeding it), Baron identifies another path to the mens rea of negligence: cases of awareness without conscious disregard. Given the exploration of the mens rea of negligence I offer here, where the agents are not aware of the risk involved, I set aside without rejecting Baron’s further possibility.
Proving their awareness might be difficult in the absence of a confession. Douglas Husak (2011, 201–02) presents a nice account of the heightened practical challenges of proof in cases of negligence, practical challenges that are faced by both the skeptic’s explanations and my own. I set aside those challenges throughout this paper.
For two examples of manifestation arguments along these lines, see Kenneth Simons (1994) and Findlay Stark (2016). See also Samuel Murray’s (2020) account of failing to allocate sufficient psychological resources as well as the dog’s-breakfast agential failures identified by Michael Moore and Heidi Hurd (2011). For criticism of manifestation arguments, see Alexander and Ferzan (2009, 71–77), King (2009, 583–587), and Smith (2012).
See Santiago Amaya and John Doris (2014, 255) for a particularly nice discussion of moral performance mistakes as wrongs whose “occurrence cannot be traced to a lack of moral concern on the part of their agents.” I have argued elsewhere (2020) that the defense of duress should apply in at least some cases where agents do wrong precisely because of some good feature of their moral psychology, complicating my response here.
We should be careful to distinguish tracing explanations of negligence from culpable-ignorance substitution. Both are responses to putatively culpable agents who lack some relevant mental state. Some jurisdictions treat ignorant agents as if they were knowing when they satisfy certain conditions, e.g., certain causal histories. See Alex Sarch’s (2019) exploration of this sort of substitution. On the tracing strategy, however, negligent agents are not treated like non-negligent agents, i.e., like reckless (or knowing or purposeful) agents. They are held responsible for a negligent wrong.
Hirstein, Sifferd, and Fagan describe the case of Bert, who forgets that he is to watch his children over the weekend and flies to Las Vegas instead, leaving them unsupervised. By hypothesis, Bert was wholly unaware of his abandoned children when he flew off. We might nonetheless hold him responsible for their abandonment given his failure to take prior precautions. What could he have done?
[Bert] might have trained himself to pay close attention to actions that might affect his children by imagining their faces when a decision that affected them arose. He might have utilized a hard rule of writing down every aspect of the schedule with his children to avoid lapses. Knowing that he tended to tune his ex-girlfriend out to avoid conflict over the children, Bert could have practiced focusing on her communications about their children nonetheless. Bert also could have engineered his environment such that he was less likely to forget his parenting schedule (he could have set a reminder or kept a calendar) and practiced the process of deliberative self-control by slowing down and mentally reviewing his schedule before making decisions that might involve his parenting schedule, such as deciding to leave town. (Hirstein, Sifferd, and Fagan 2018, 138).
I am skeptical that many of the cases usually classified as negligent wrongdoing involve prior awareness of the particular risk that looms and the possibility of avoiding it, and so I am skeptical that the first horn of the dilemma captures very many cases. The dilemma argument I present here, however, is independent of that empirical skepticism.
Even if the tracing advocate has an answer for this dilemma, we have little reason to think that the culpability for the earlier decisions should closely track the culpability for the later negligent wrongs. For an argument skeptical of tracing along these lines, see my work (2016).
For the best sustained defense of an argument along these lines, see Alexander and Ferzan (2009).
My concerns here are not exegetical, and I am not claiming that Hart’s account is exhausted by the discussion of general capacities and the opportunity to exercise them.
Once again, we see that excuses are “the ‘royal road’ to theories of responsibility” (Moore 2010, 548, quoting Sigmund Freud).
Hirstein, Sifferd, and Fagan use their account to explain responsibility for consequences in addition to explaining responsibility for actions and omissions. I set aside responsibility for consequences, insofar as responsibility for consequences is grounded in responsibility for explanatory acts or omissions.
This is not to exclude counterfactual reasoning from the account altogether. On my revision, an agent is culpable when their minimal working set of executive functions did function in some way (this is the responsibility condition) but should have functioned in some other way (this is the wrongdoing condition). What I discard is the claim that an agent can be responsible solely because their minimal working set of executive functions should have functioned in some way it did not. Responsibility requires actual executive involvement; merely counterfactual involvement is not sufficient.
This establishes responsibility. To determine the full nature of culpability, we also need to make precise the description of the relevant wrongdoing. For that, there might be further questions about the nature of the executive functioning’s engagement. For example, if I am innocently unaware of the risk my intentional behavior causes, I am responsible for my behavior (it being intentional and thus the product of executive functioning), but given the innocent unawareness, my behavior might not constitute culpability. I think Dana Kay Nelkin for pushing me to clarify this.
This is a controversial notion of awareness. For example, Moore and Hurd include some dispositional beliefs in awareness (2011, 153–56), Murray defines substandard awareness (presumably a type of awareness) as possessing but failing to exercise the epistemic capacities (2020, 11–12), and Husak (2011, 207–10) and Stark (2016, chs. 4–5) treat awareness as akin to belief. I return to the relevant notion of awareness in § 4, where I defend an account of culpability for negligent wrongdoing consistent with a broad ecumenicism about awareness as well as intuitive distinctions between higher- and lower-level awareness.
Hirstein, Sifferd, and Fagan give us an example of an intentional wrongdoer: “a man driving in Manhattan accelerates his car into a crosswalk full of people, injuring several of them. One causal history of that event contains executive processes playing planning roles, setting goals to harm as many as possible, and then forming and executing the final intention to accelerate into the people” (2018, 65).
Indeed, as Williams points out, awareness can get in the way of control and can reflect the lack of control (2020, 119). As an experiment, attempt to pay attention to each element of some ordinary thing you do by routine, such as washing your hair in the shower. Attend carefully to each component element, and I expect that you will find that your progress slows. This disruption shows up even more in highly skilled routine activities, such as playing a violin or shooting a basketball. For the highly skilled violinist, working the bow comes quickly, and attention can interfere; for the rest of us, our lack of faculty with the instrument is reflected in our intense concentration: “Keep my upper arm still! Go to the angle for the D string! Keep the bow straight!”.
We can see something like this urged tacitly in an argument from Alexander and Ferzan: if an agent’s failure to act appropriately manifests some untoward desire, the desire or lack thereof “must figure as a factor in the actor’s practical reasoning in performing the action. Such an approach, however, looks as if it collapses culpable indifference into our conception of recklessness” (2009, 72).
Legal scholars sometimes treat awareness as synonymous with knowledge. See, for example, the treatment of awareness throughout Markus Dubber’s (2015) review of the Model Penal Code. See also note 24 above.
There are substantive discussions of this positive cognitive element of negligence in Findlay Stark (2016) and Amaya (forthcoming).
These building blocks are also nicely captured by an example from Amaya and Doris (2014, 261): “You saw an injured pedestrian in distress, [and] you value helping others.”
It might seem that any account that satisfies one of these will satisfy the other. Baron writes, “it doesn’t happen that one ‘just doesn’t see’ what one should see. There has to be an explanation” (2019, 337, citation omitted). However, even if there is an explanation of some sort, that explanation might not satisfy the manifestation conditions. In any case, insofar as guidance control is doing the explanatory work, as is suggested by the Frankfurt cases, the theory should capture that core guidance-control insight.
This is an instance of the account of responsibility offered in § 3.2, not a revision of it.
Hirstein, Sifferd, and Fagan argue that the executive system is instantiated in the brain’s cognitive control network and that its functional roles correspond to particular, physical brain elements. Thus, we can imagine that Montgomery’s actual executive functioning corresponded to significant brain activity. This is further reason to conclude that the mens rea of negligence has a significant actual component.
Alexander and Ferzan tell us that Sam and Ruth correctly believed at the time that, given the rate the tub was filling, there would be plenty of time to return. Even if they did correctly believe this, did they believe they were sure to return on time? Alexander and Ferzan’s stipulation of Sam and Ruth’s beliefs is both partial and artificial. Accordingly, I am hesitant to rely on my intuitions about Sam and Ruth’s culpability. For similar and other concerns about the case, see Baron (2020, 78 nn. 27 & 28).
For an illuminating exploration of the perception of absences, see Anna Farennikova (2013).
This sad case, well-known in the negligence literature, can be found at State v. Williams, 4 Wash. App. 908, 484 P.2d 1167 (1971).
Washington’s criminal negligence provisions from 1971 differ from the contemporary Model Penal Code provisions, though not in ways that complicate the case for our purposes. Washington has since reformed its criminal justice code such that it more closely tracks the Model Penal Code.
I thank William Hirstein, Katrina Sifferd, and Tyler Fagan for their rich and fascinating book, and I thank Dennis Patterson and the Rutgers Institute of Law and Philosophy for organizing the conference on the book that occasioned this paper. I also thank Santiago Amaya, Marcia Baron, Amy Berg, Dana Kay Nelkin, Findlay Stark, and Evan Tiffany for their invaluable comments on prior drafts as well as the editorial staff of Criminal Law and Philosophy.
References
Agule, Craig K. 2016. “Resisting Tracing’s Siren Song.” Journal of Ethics & Social Philosophy 10 (1): 1–24.
Agule, Craig K. 2020. Distinctive Duress. Philosophical Studies 177 (4): 1007–1026. https://doi.org/10.1007/s11098-018-01227-3
Alexander, Larry, and Kimberly Kessler Ferzan. 2009. Crime and Culpability: A Theory of Criminal Law. 1st ed. Cambridge University Press.
Amaya, Santiago. forthcoming. “Negligence: Its Moral Significance.” In Oxford Handbook of Moral Psychology, edited by Manuel Vargas and John M. Doris. Oxford University Press.
Amaya, Santiago, and John M. Doris. 2014. “No Excuses: Performance Mistakes in Morality.” In Handbook of Neuroethics, edited by Jens Clausen and Neil Levy, 253–72. Springer.
Baron, Marcia. 2019. “Negligence and the Mens Rea Requirement.” Jahrbuch Fur Recht and Ethik 27: 325–44.
Baron, Marcia. 2020. “Negligence, Mens Rea, and What We Want the Element of Mens Rea to Provide.” Criminal Law and Philosophy 14 (1): 69–89.
Berg, Amy. 2018. “Ideal Theory and ‘Ought Implies Can.’” Pacific Philosophical Quarterly 99 (4): 869–90.
Brink, David O. 2021. Fair Opportunity and Responsibility. Clarendon Press.
Brink, David O., and Dana Kay Nelkin. 2013. “Fairness and the Architecture of Responsibility.” Oxford Studies in Agency and Responsibility 1: 284–313.
Dicey-Jennings, Carolyn. 2020. The Attending Mind. Cambridge University Press.
Dubber, Markus Dirk. 2015. An Introduction to the Model Penal Code. Oxford University Press.
Duff, Antony. 2009a. “Legal and Moral Responsibility.” Philosophy Compass 4 (6): 978–86.
Duff, Antony. 2009b. Answering for Crime: Responsibility and Liability in the Criminal Law. Hart Publishing.
Farennikova, Anna. 2013. “Seeing Absence.” Philosophical Studies 166 (3): 429–54.
Fischer, John Martin, and Mark Ravizza. 1998. Responsibility and Control: A Theory of Moral Responsibility. Cambridge University Press.
Frankfurt, Harry G. 1969. “Alternate Possibilities and Moral Responsibility.” The Journal of Philosophy 66 (23): 829–39.
Greenberg, Alexander. 2020. “Epistemic Responsibility and Criminal Negligence.” Criminal Law and Philosophy 14 (1): 91–111.
Hart, H. L. A. 2008. Punishment and Responsibility: Essays in the Philosophy of Law. 2nd ed. Oxford University Press.
Herstein, Ori. 2019. “Nobody’s Perfect: Moral Responsibility in Negligence.” Canadian Journal of Law and Jurisprudence 31 (1): 109–25.
Hirstein, William, Katrina L. Sifferd, and Tyler Fagan. 2018. Responsible Brains: Neuroscience, Law, and Human Culpability. MIT Press.
Husak, Douglas. 2011. “Negligence, Belief, Blame and Criminal Liability: The Special Case of Forgetting.” Criminal Law and Philosophy 5 (2): 199–218.
Khoury, Andrew C. 2012. “Responsibility, Tracing, and Consequences.” Canadian Journal of Philosophy 42 (3): 187–207.
King, Matt. 2009. “The Problem with Negligence.” Social Theory and Practice 35 (4): 577–95.
King, Matt. 2014. “Traction Without Tracing: A (Partial) Solution for Control-Based Accounts of Moral Responsibility.” European Journal of Philosophy 22 (3): 463–82.
Mole, Christopher. 2017. “Attention.” In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta, Fall 2017. Metaphysics Research Lab, Stanford University. https://plato.stanford.edu/archives/fall2017/entries/attention/.
Moore, Michael S. 1993. Act and Crime: The Philosophy of Action and Its Implications for Criminal Law. Oxford University Press.
Moore, Michael S. 2010. Placing Blame: A Theory of the Criminal Law. Oxford University Press.
Moore, Michael S., and Heidi M. Hurd. 2011. “Punishing the Awkward, the Stupid, the Weak, and the Selfish: The Culpability of Negligence.” Criminal Law and Philosophy 5 (2): 147–98.
Murray, Samuel. 2020. “The Place of the Trace: Negligence and Responsibility.” Review of Philosophy and Psychology 11 (1): 39–52.
Pereboom, Derk. 2014. Free Will, Agency, and Meaning in Life. Oxford University Press.
Simester, A. P. 2013. “A Disintegrated Theory of Culpability.” The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams, 178–203. Cambridge University Press.
Simons, Kenneth W. 1994. “Culpability and Retributive Theory: The Problem of Criminal Negligence.” J. Contemp. Legal Issues 5: 365.
Smith, Holly. 2012. “Negligence.” In International Encyclopedia of Ethics, edited by Hugh Lafollette, 3565–3571. Wiley-Blackwell.
Stark, Findlay. 2016. Culpable Carelessness: Recklessness and Negligence in the Criminal Law. Cambridge University Press.
Vargas, Manuel. 2005. “The Trouble with Tracing.” Midwest Studies in Philosophy 29 (1): 269–91.
Vargas, Manuel. 2013. Building Better Beings: A Theory of Moral Responsibility. Oxford University Press.
Watzl, Sebastian. 2017. Structuring Mind: The Nature of Attention and How It Shapes Consciousness. Oxford University Press.
Westen, Peter. 2007. “Individualizing the Reasonable Person in Criminal Law.” Criminal Law and Philosophy 2 (2): 137–62.
Williams, Bernard. 1981. Moral Luck: Philosophical Papers 1973-1980. Cambridge University Press.
Williams, Garrath. 2020. “Taking Responsibility for Negligence and Non-Negligence.” Criminal Law and Philosophy 14 (1): 113–34.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Agule, C.K. Minding Negligence. Criminal Law, Philosophy 16, 231–251 (2022). https://doi.org/10.1007/s11572-021-09603-7
Accepted:
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-021-09603-7