actor is one who should be aware of an unjustifiable risk; the reckless actor is aware of an unjustifiable risk but nevertheless takes it; the knowing actor is aware that a harmful result is practically certain to occur, or that an incriminating circumstance very probably exists; and the purposeful actor has the conscious object of achieving the result. 2 Why does the Code largely employ a cognitive conception of negligence? For two basic reasons first the code drafters wanted to ensure that some form of "conscious"wrongdoing would normally be required for criminal liability Doctrinally, they accomplished this by providing that "recklessness, rather than negligence, is the presumptive minimum culpability term for every material element of every crime. 3 Accordingly, recklessness is defined (in part)as awareness that a harm may ensue or that an incriminating circumstance might obtain At the same time, negligence is understood negatively, as a form of culpability in which the actor lacks such awareness. (Indeed, the only difference between negligence and recklessness under the Code is this difference in awareness.) Second, the drafters wanted negligence to fit within a structured 1 Model Penal Code $2.02(2)(d)(ALl 1985)(hereinafter"MPC"). Importantly, however, the mPC defines criminal negligence as a gross deviation from reasonable conduct; thus criminal negligence is a species of what tort law would call "gross"negligence, not ordinary negligence. Also, MPC negligence presupposes that the actor should have been aware of a"substantial risk of harm. I put aside for purposes of this article, the nteresting question whether this substantiality requirement (common to the MPC definitions of both negligence and recklessness) should be understand as an independent requirement, or instead as just an aspect of unjustifiability. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 CaL. L Rev.931,933935(2000) MPC, $2.02(2). Note two qualifications. First, the meaning of these culpability terms differs somewhat when they pertain to a circumstance element of an offense, rather thai a result element. Second, the MPc strongly disfavors strict criminal liability, or liability in the absence of any form of culpability. MPC $2.05 §202(3) Specifically, MPC "recklessness"requires that the actor be aware of a substantial risk of a relevant harm occurring or circumstance existing. MPC, $2.02 (2)(c) It need not have been so. Criminal recklessness could be distinguished from criminal negligence not according to consciousness of risk, but according to the actor,s greater Simons, Dimensions of Negligence 8/7/02actor is one who should be aware of an unjustifiable risk11; the reckless actor is aware of an unjustifiable risk but nevertheless takes it; the knowing actor is aware that a harmful result is practically certain to occur, or that an incriminating circumstance very probably exists; and the purposeful actor has the conscious object of achieving the result.12 Why does the Code largely employ a cognitive conception of negligence? For two basic reasons. First, the Code drafters wanted to ensure that some form of “conscious” wrongdoing would normally be required for criminal liability. Doctrinally, they accomplished this by providing that “recklessness,” rather than “negligence,” is the presumptive minimum culpability term for every material element of every crime. 13 Accordingly, recklessness is defined (in part) as awareness that a harm may ensue or that an incriminating circumstance might obtain.14 At the same time, negligence is understood negatively, as a form of culpability in which the actor lacks such awareness. (Indeed, the only difference between negligence and recklessness under the Code is this difference in awareness.15) Second, the drafters wanted negligence to fit within a structured 11 Model Penal Code §2.02(2)(d) (ALI 1985) (hereinafter “MPC”). Importantly, however, the MPC defines criminal negligence as a gross deviation from reasonable conduct; thus, criminal negligence is a species of what tort law would call “gross” negligence, not ordinary negligence. Also, MPC negligence presupposes that the actor should have been aware of a “substantial” risk of harm. I put aside, for purposes of this article, the interesting question whether this substantiality requirement (common to the MPC definitions of both negligence and recklessness) should be understand as an independent requirement, or instead as just an aspect of unjustifiability. See Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931, 933-935 (2000). 12 MPC, §2.02(2). Note two qualifications. First, the meaning of these culpability terms differs somewhat when they pertain to a circumstance element of an offense, rather than a result element. Second, the MPC strongly disfavors strict criminal liability, or liability in the absence of any form of culpability. MPC §2.05. 13 MPC, §2.02(3). 14 Specifically, MPC “recklessness” requires that the actor be aware of a substantial risk of a relevant harm occurring or circumstance existing. MPC, §2.02(2)(c). 15 It need not have been so. Criminal recklessness could be distinguished from criminal negligence not according to consciousness of risk, but according to the actor’s greater Page 8 of 57 Simons, Dimensions of Negligence 8/7/02