About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 Buff. Crim. L. Rev. 431 (1997-1998)
Virtue and Criminal Negligence

handle is hein.journals/bufcr1 and id is 437 raw text is: Virtue and Criminal Negligence Kyron Huigens I. INTRODUCTION Criminal negligence has been seen as a unique and problematic ground for punishment.'The Model Penal Code includes criminal negligence among its four Kinds of Cul- pability,' but the inclusion of negligence was controversiaP because negligence differs from the other three kinds of culpability in one obvious respect. Each of the other three- purpose, knowledge, and recklessness-is defined as a par- ticular consciousness of harm. For example, recklessness is defined as the conscious disregard of a substantial risk of harm.' In contrast, criminal negligence is premised on a substantial risk of harm of which the actor ought to have been aware, but was not.' Because negligence, unlike the other kinds of culpability, does not depend on a consciousness of harm, criminal negli- gence often is said to result in objective liability as opposed to subjective liability.' The very accuracy of this characteri- zation indicates the objection that some have raised against negligence as a basis for criminal liability. If criminal negli- gence is objective liability, then it is a member of a species of liability which includes strict criminal liability. Indeed, it * Assistant Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. The writing of this article was supported by a grant from the Jacob Burns Institute for Advanced Legal Studies. 1. See 1 WAYNE R. LAFAVE & AUSTIN W. SCOw, JR., SUBSTANTIVE CRIMINAL LAW § 3.7(a) (1986). 2. See AMERICAN LAW INSTITUTE, MODEL PENAL CODE AND COMMENTARIES § 2.02(2Xd) (Official Draft and Revised Comments 1985). 3. See id. § 2.02 commentary at 4 (No one has doubted that purpose, knowledge, and recklessness are properly the basis for criminal liability, but some critics have opposed any penal consequences for negligent behavior.). 4. See id. § 2.02(2Xc). 5. See id. § 2.02(2Xd). 6. See, e.g., SANFORD K- KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 449 (6th ed. 1995) (A standard of negligence is, as we have indicated, substantially objective.).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most