Posted by Sherry F. Colb
In my Verdict column for this week, I examine a recent finding that jurors have a difficult time distinguishing between two of the criminal law mental states through which the seriousness of an offense is ranked: recklessness and knowledge. In the column, I offer an explanation for juror confusion and propose some potential solutions to the problem.
I conclude that confusion arises in part from the fact that neither recklessness nor knowledge is a "pure" mental state. Recklessness requires a defendant to be aware of a substantial and unjustifiable risk of harm and to act anyway, notwithstanding that risk. Knowledge requires a defendant to be aware of the virtual certainty of harm and to act notwithstanding that knowledge. To be aware of something, however, whether it is an unjustifiably high risk or a virtual certainty, requires two things to be true, only one of which is subjective: (1) the person must believe that there is a particular level of risk of harm (extreme and unjustified or virtually certain), and (2) there must actually, in the real world, be that level of risk.
If someone asks the question "Did Othello know that Desdemona cheated on him?," the answer to that question must be "no," regardless of what Othello believed, because Desdemona was in fact faithful to her husband. And if someone asks the question "Did most of the obstetricians of early Nineteenth Century Vienna know that they were infecting their maternity patients with puerperal fever from cadavers?," the answer to that question must also be "no," because even though the doctors were in fact causing their patients to die, the doctors were not conscious of the impact of their behavior.
In the criminal law, we pay attention to the subjective beliefs of the defendant regarding her actions, and we attend as well to the objective reality of what those actions in fact entailed in the real world. We often punish more harmful conduct more harshly than we do less harmful conduct, even when the subjective mental states of the respective perpetrators is the same. And we punish completely harmless (in the sense of having actually caused no harm) conduct as well, when the perpetrator's subjective intentions or beliefs about his actions are sufficiently culpable.
In the case of recklessness and knowledge, the objective reality at issue is the real risk involved in the behavior under the circumstances. Holding a completely loaded gun to a person's head and firing, for example, is more risky than playing one round of offensive (rather than self-directed) Russian roulette, even when both victims happen to die in a particular case. For this reason, a person who consciously does the former, understanding the risks, would be guilty of "knowingly" killing her victim, while the person who consciously does the latter would be guilty of recklessly killing his victim.
As I explain in my column, there is uncertainty about what we ought to do when subjective consciousness of risk and objective reality of risk conflict. Assume, for example, that John Doe believes that feeding his son an unripe tomato will almost certainly kill the boy, but that John is in fact mistaken about the odds of a fatality, which are negligible. Assume further that notwithstanding his belief, John feeds his son an unripe tomato, because his son has been pleading for it, and the boy dies (because of an unknown extreme sensitivity that the boy has to unripe tomatoes, a sensitivity that almost no one else in the world shares). How culpable is John in the death of his son?
What about the converse situation? Let us posit that Jane Doe believes the "Death Cap" mushroom is somewhat dangerous, but she is mistaken in that eating Death Caps is in fact virtually certain to cause death. Jane Doe's son pleads with her for permission to eat the mushroom, and she gives in, just as John Doe did. She plucks a mushroom from the woods where they are hiking and gives it to her son, after which he eats it and drops dead. How culpable is Jane in the death of the boy?
Who is worse: John or Jane? My inclination is to say that John is worse and that he deserves greater condemnation and condemnation than Jane. From a consequentialist perspective, it seems that John is a more dangerous person than Jane. We know of John that even when he believes an act is virtually certain to cause death, this knowledge does not stop John from performing the act. What we know of Jane, on the other hand, is that when she believes an act is somewhat dangerous to another's life, this knowledge does not deter her from the act.
The next time the two people are considering risky behavior, we have more reason to fear John's decision than we do to fear Jane's. Though John happened to have been mistaken about the reality of risk in eating an unripe tomato, even a correct understanding that an action truly is almost always deadly will not prevent John from acting. Of Jane, on the other hand, there is a greater chance that factual education about risk would prevent her from embarking on a deadly course of action in the future.
If one is a retributivist/deontologist, John also seems like the worse character of the two offenders. He acted like the parent who feeds his child a Death Cap while knowing of the latter's near-certain lethality. We might compare him to the person who feeds a child a capsule from a bottle of cyanide after someone has poured out the cyanide capsules and replaced them with acetaminophen. His character, in other words, seems to be the character of a murderer.
Jane, by contrast, thinks she is agreeing to have her child do something that is somewhat dangerous, an irresponsible parental act but not the sort of behavior that makes her a murderer. We might compare her to the parent who consistently drives his children around at thirty-five miles over the speed limit. An irresponsible parent? Yes. A murderer? No.
If we take this argument to its logical conclusion, however, we wind up in a scenario that gives me some pause: the case of the person who believes in Voo Doo and "drowns" a doll that looks like the person's enemy in the belief that this will kill the live human enemy. When the risk of an activity causing death is in fact zero, I am reluctant to treat the actor as a murderer, even though his subjective state of mind is the same as that of a murderer. Perhaps this reluctance reflects some underlying skepticism about the actor's truly believing a demonstrably false proposition. Or perhaps I am reluctant out of a concern for how one would go about proving an individual's sincere belief in an absurdity. It may be, however, that my reluctance reflects the underlying intuition that if conduct is harmless (or virtually never harmful), it should not be punished by the criminal law, regardless of what was going on in the person's head.
Though this may not be much consolation, it may be the case that if someone is really willing to knowingly endanger life, we are likely to encounter him or her again in a context that leaves little room for doubt about culpability. Maybe it is fairest, if not safest, to await such an occasion before imposing a criminal penalty.