[MUSIC] With the goals of criminal law that we discussed before the break, retribution and crime control, in mind. Let us turn to how society defines criminal behavior. It is often said that the entire body of criminal law can be described by two principles. The harm principle and the fault principle. The harm princ, principle tries to pick out those behaviors that produce such substantial and unjustified harms, or such risk of harm, that the criminal law is the appropriate response. Some harms, such as the use of force, theft, and fraud are the so called core of the criminal law. Familiar examples are homicide, rape, arson, and stealing another's property. They involve substantial harm to others, and their prohibition is uncontroversial and found in all mature systems of criminal law. In the last century however, and increasingly in recent decades. Criminal law is used to address a wide variety of potentially problematic activities that are none the less not obviously sufficiently clear violations of the duties we owe each other to warrant societal blame and punishment. For example, do you think that a person should be convicted of a crime and sentenced to prison for passing oneself off as the war hero by wearing medals the person did not earn? It's insensitive and immoral behavior like intentional emotional cruelty, but should it be regulated with criminal law and potential imprisonment? Congress thought so and passed the stolen valor act of 2013, which the President signed into law. Should prostitution be a crime? Or should it be dealt with by public health measures and other forms of non criminal regulation? Such expansive use of the criminal law is controversial. Because it is not clear that criminal law regulation is morally appropriate and necessary. And employing the criminal law when it is not appropriate, and not necessary tends to undermine the moral message that the criminal law distinctively is meant to convey. A current example of the issue of the appropriate use of the criminal law is the extensive law enforcement approach to branding the use recreational use of abusable drugs, other than alcohol and nicotine, of course. There's substantial debate about whether criminal law regulation as the primary means to prevent drug use is a wise and cost effective policy. More generally, criminal law as a regulatory tool, has become so expansive. That is unclear that the harm principle is now use to limit the proper reach of the criminal law. It is often said that our Federal system provides 51 laboratories, the 50 states, and the Federal Penal Code for trying to produce the best policies. This permits substantial experimentation and responsiveness to differing values and attitudes in different jurisdictions rather than a one size fits all approach. Moreover in our legal order, the Constitution places almost no limits on the ability of a jurisdiction to criminalize an activity. That is, the various states and the federal government have essentially no restrictions on the type of conduct within their jurisdiction, that they can prohibit using the criminal law. Exceptions are infrequent, are never usually based on a conflict between the prohibition and another constitutional value. To return to the example of the stolen valor act raised shortly ago. The Supreme Court found an earlier version of the act that prohibited lying about military heroics unconstitutional, because it violated the First Amendment's protection of free speech. Otherwise, it would have been perfectly acceptable to criticize such unsavory, but not terribly harmful behaviour. Another unusual example, is a case in which the Supreme Court held that it was unconstitutional to blame and punish a person simply for the status of being a drug addict. Not for use, not for possession, but simply for the status of being a drug addict. Because statuses are not actions. They are not behavior and thus they are beyond the reach of the criminal law. But such instances are indeed unusual. Despite the variation that our federal system permits there are none the less substantial similarities among the various criminal codes, that they all start from similar legal and cultural heritage. Now let us turn to the fault principle. This is the principle that guides who deserves criminal blame and punishment for the behavior that we wish to prevent using the criminal law. Examples of such behaviors are killing conduct, non-consensual sexual contacts, burning of buildings, takings of another property, and the like. All these harms can be caused without fault if a person was acting as carefully as one could expect under the circumstances, but caused an accident nonetheless. Accidents happen without fault. Indeed, the only way to prevent all accidents would be to completely cease all interpersonal human interaction. When innocently cause harms occur such cases are occasions for regret, but hardly for criminal blame and punishment. Indeed if the harm doer, and note that I say harm doer and not wrong doer was sufficiently careful victims of the accident would not even be entitled to tort damages. Because the harm doer did not violate the reasonable standard of care that is the touchstone of tort liability. So if causing a harmful result by one's behavior is not a sufficient condition for blame and punishment, what is the essence of the fault principle? We can best start to explore this question with a quote from former Supreme Court Justice Oliver Wendell Holmes. Justice Holmes wrote that even a dog knows the difference between being stumbled over and being kicked. Just so the law and ordinary morality, I should add, assess for not just on the basis of results or outcomes of our behavior, but more importantly on the basis of the mental state with which the person acted. An intended harm, a violent kick of an enemy is vastly more blameworthy than an accidental kick that is equally painful to the victim. Mental states are the royal road to moral fall. The mental state with which a person engages in potentially harmful behavior is the best indication of the person's attitudes towards the rights and interests of fellow people. If someone is being as careful as humanly possible, then the person has manifested complete respect for the rights and interests of others. If the person has intentionally caused the harm without any justification then the person has demonstrated that the rights and interests of the victim do not matter. Such indifference is the essence of moral fault and blameworthiness. The mental states that make conduct criminal violations are knows as the mens rea. This is an old Latin term that literally means a guilty mind. But this is misleading. A more precise meaning would be the mental state that is part of the definition that makes a specific behavior a crime. There is nothing problematic about forming intentions. We do it unproblematically all the time. I am intentionally delivering this lecture and you are intentionally listen, listening to it. But there is nothing criminal about delivering or viewing an academic lecture. But as we just saw, the mental states that accompany various potentially harmful behaviors distinguish how blameworthy the person is. Is the combination of acting in prohibited ways coupled with a mental state indicating culpability that are the pre-conditions for fault. The criminal law is littered with mental state terms that are parts of the criteria for crime. Often such terms are confusing. But, in the last half century, a law reform organization based in Philadelphia, the American Law Institute, has published a model penal code that identifies blame worthy mental states with some care. Although it is only a model code, and it is not binding on any jurisdiction,. It has had enormous influence on the reform and evolution of criminal law, since it was published in the early 1960's. It identifies four culpable Mental States. Purpose, Knowledge, Recklessness, and Negligence. Let me use an oversimplified example of homicide to define them for you. Purpose has it's ordinary language meaning. That is, to do something on purpose. The result is your conscious goal. So if I kill purposely, this means that I meant to kill the victim, I did it on purpose. Knowledge means simply that you are aware of some fact, or practically certain that it is true. Suppose for example I want to blow up a plane to destroy the cargo so that I can collect insurance proceeds. The crew, of course, dies in the explosion. Was it my true purpose to kill them? Not necessarily, I may even have foolishly hoped that a miracle would occur, and that they wouldn't die. Nevertheless, I knew it was practically certain that the crew would die and I would be guilty of knowing homicide. To define the other culpable mental state terms, recklessness and negligence. Let us return to the example of our speeding driver which this lecture used earlier. The driver certainly did not have the goal that someone should die and he was not practically certain that someone would be killed as a result of his enormously dangerous driving. But he created an immense amount of risk of death. That was completely unjustified under the circumstances. Recklessness means that the person is actually aware of a risk he is creating. It is actually in his mind, but he decides to run that risk despite recognizing the danger. The driver would thus be guilty of reckless homicide if he was actually aware of the risk of set, of death or serious bodily injury, but he decided to run the light anyhow for no reason with any social justification. Negligence is defined as being unaware of a risk a person has created. But under conditions in which a reasonable law abiding citizen should have been aware of the risk. The person that's failed to pay the kind of attention we expect of each other when creating unjustified risks. Even if our driver was somehow not aware of the risk of death or serious bodily harm he was creating by his dangerous driving. He certainly should have been aware. In criminal law, the amount of risk that must be created for criminal liability is greater than in tort law, reflecting the criminal law's concern with sufficient culpability to justify, state blame, and punishment. Remember that I said that the mental states acc, mental state accompanying behavior is an indication of the person's attitudes towards the rights and interests of others who might be effected by the behavior. The more indifferent someone is, the more blame worthy. And they are almost certainly more dangerous if they are more indifferent. The four mental states I have defined, purpose, knowledge, recklessness, negligence, represent an imperfect, but good hierarchy of different levels of blame worthiness. To continue the homicide example, killing purposely or knowingly is more indifferent and generally more dangerous than killing by the creation of risk with awareness of the risk. Which is in turn more blameworthy than killing without awareness of risk, but one, but when one should have been aware of the risk. And the severity of punishments that may be imposed reflect such different levels of blame worthiness, even when the result, such as death, is the same. There is one major exception to the full principle in the United States criminal law. So called crimes of strict liability. These permit criminal blame and punishment, simply for engaging in the preminal, in the prohibited conduct. Even if one's behavior was blameless. For example, shipping certain goods in interstate commerce without a proper label may be a crime. Imagine a midsize business that is a wholesaler and distributer of pharmaceuticals. The firm packages and labels the drugs before shipping them. Suppose one batch is not properly labeled, all though the firm management had instituted exceptionally fine training and quality control for the labeling process there is no perfect process. Innocent accidents happen, and the business and it's officers are blameless. Depending on the circumstances the officers and perhaps the business itself are nonetheless criminally liable, and may be blamed and punished. Such crimes largely address public health and safety issue and carry light punishments and stigma, but not always. Some strict liability crimes carry heavy penalties. Such crimes, and there are many, many in contemporary criminal codes. Are extremely controversial because they potentially blame and punish people engaging in legitimate activities in blameless fashion. Given the immense importance of fault in criminal law, the question is whether it is fair to use the criminal law to regulate such behavior. Especially since other forms of regulations such as civil fines might be equally effective. Having considered the harm and fault principles that guide the definition of crime, we will turn to the actual structure of criminal guilt after a break. [MUSIC]
