The Ontological Problem of Risk and Endangerment in Criminal Law

Document Type

Article

Publication Date

2011

Abstract

Penal codes are rife with what Antony Duff calls “crimes of explicit endangerment,” that is, offenses that are explicitly framed as the conduct of “endangering” or “jeopardizing” another or creating a “risk,” “danger,” and/or a “likelihood” of harm to another. Risks and dangers, in turn, are conventionally understood to be probabilistic in nature. Probabilistic understandings of risk are compatible with some crimes of endangerment. However, they cannot account for most such offenses, including most that arise under provisions modeled upon Model Penal Code section 211.2. Specifically, they cannot account for commonplace offenses that punish persons for creating risks that exist objectively and apart from the mental states of those who bring them about – at least not regarding events that by their nature must either materialize in harm or not by the time of trial but do not thus materialize in harm. I shall argue that this ontological problem of risk can be resolved, but only by replacing conventional, probabilistic understandings of risks with an alternative, counterfactual understanding that is similar to the counterfactual judgments at play in impossibility attempts.

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