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Opaque Recklessness

NCJ Number
Journal of Crminal Law and Criminology Volume: 91 Issue: 3 Dated: Spring 2001 Pages: 597-652
Kimberly Kessler Ferzan
Date Published
56 pages
This article discusses opaque recklessness, which is not included in the Model Penal Code.
The person whose mental state satisfies the Model Penal Code’s definition of recklessness is one who engages in risky behavior, fully acknowledging the possibility that their actions could cause substantial and unjustifiable harm to others. Opaque recklessness is where the person knowingly engages in risky behavior but fails to think through the specific harms he is risking. If opaque recklessness should suffice for criminal responsibility, the definition of recklessness needs to be expanded to include it or a new mental state must be created. If the actor chooses to risk harm and the harm turns out to be death, death should be substituted for harm with regard to the defendant’s mens rea, thus holding the opaquely reckless actor responsible for choosing to risk the death that does occur. This fails to solve the opaque recklessness problem because rather than casting light on the mental state of opaque recklessness, it misconstrues how mental states work. The matter of “time framing” should be considered to see if the actor made a prior culpable choice not to analyze the risk of harm that he was presenting. But time framing fails because one may reasonably doubt that one can will oneself not to be conscious of a risk, and even if such an act of will is possible, the choice to be opaquely reckless may be an equally opaque choice. Duff’s theory states that recklessness should encompass practical indifference, an attitude encompassed in action that reflects that the actor cares too little about the risk that he is creating. Simons’ proposed mental state hierarchy acknowledges that there are conative-based (desire-based) mental states as well as cognitive-based mental states. Simons’ argument for a conative hierarchy cannot be based on the actor’s choice to cause or to risk harm. Simons instead wants to punish actors who just do not care enough. It is proposed that a new mental state be created in the Model Penal Code; one that captures the actor’s conscious decision to engage in dangerous behavior as well as the actor’s preconscious appreciation of the exact risk imposed. 183 footnotes


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