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85 Tex. L. Rev. 333 (2006-2007)
What's Wrong with Involuntary Manslaughter

handle is hein.journals/tlr85 and id is 349 raw text is: What's Wrong with Involuntary Manslaughter? Stephen P. Garvey* Efforts to explain when and why the state can legitimately impose retributive punishment on an actor who inadvertently creates an unjustified risk of causing death (and death results) typically rely on one of two theories. The prior-choice theory claims that retributive punishment for inadvertent lethal risk creation is justified if and only if the actor's inadvertence or ignorance was a but-for and proximate result of a prior culpable choice. The hypothetical-choice theory claims that retributive punishment for inadvertent lethal risk creation is justified if and only if the actor would have chosen to take the risk if he had been aware of it, even though he was not in fact aware of it. I argue that neither of these theories satisfactorily identifies when and why retributive punishment is warranted for inadvertent lethal risk creation. Instead, I propose that an actor who creates a risk of causing death, but who was un- aware of that risk, can fairly be subject to retributive punishment if he was either nonwillfully ignorant or self-deceived with respect to the existence of the risk, and if such ignorance or self-deception was due to the causal influence of a de- sire he could and should have controlled. The culpability of such an actor consists, not in any prior actual choice to do wrong, nor in any imagined hypo- thetical choice to do wrong, but in the culpable failure to exercise doxastic self- control: control over one's beliefs. Walter and Bernice Williams were loving parents. They were also convicted of letting their fourteen-month-old son die of pneumonia.' The Williamses said they never realized their son's life was in danger, and indeed, the state of Washington never claimed otherwise. It wanted to punish them anyway. But if the Williamses never realized their son's life was in danger, how can they fairly be punished for endangering it? If we punish them nonetheless, why do we punish them? What do we punish them for? * Professor of Law, Cornell Law School. Thanks to Robert Blecker, John Blume, Steven Clymer, Valerie Hans, James Henderson, Kenneth Simons, Sheri Johnson, and Trevor Morrison for helpful comments. 1. State v. Williams, 484 P.2d 1167, 1174 (Wash. Ct. App. 1971). The case is reproduced in a number of criminal law casebooks. See, e.g., KATE E. BLOCH & KEVIN C. MCMUNIGAL, CRIMINAL LAW 392-95 (2005); JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 296-99 (3d ed. 2003); SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 445-48 (6th ed. 1995); JOHN KAPLAN, ROBERT WEISBERG & GUYORA BINDER, CRIMINAL LAW 370-73 (5th ed. 2004); CYNTHIA LEE & ANGELA HARRIS, CRIMINAL LAW 425-29 (2005); LLOYD L. WEINREB, CRIMINAL LAW 290-91 (7th ed. 2003). For a fictionalized account offering a similar fact pattern, see Norval Morris, The Watching Brief 54 U. CHI. L. REV. 1215 (1987).

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