Retributivism Refined—or Run Amok?

Crime and Culpability: A Theory of Criminal Law. Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse. Cambridge, 2009. Pp xiii, 330.

What would the criminal law look like if we took retributivist principles very seriously? In this engagingly written, lively, philosophically astute book, the authors—Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse—provide a controversial set of answers. Whether a criminal act does or does not result in harm should not affect the actor’s punishment (p 171). Only the last act of risk creation should suffice for liability (p 197). Conscious awareness of risk should always be necessary (pp 70–71). And all of criminal law, every category of mens rea and actus reus, should be reduced to the following single idea: Do not be reckless; do not knowingly take risks that are clearly unjustifiable in light of your reasons for taking those risks (p 263).

Few scholars and even fewer legislators will be persuaded, but that is of no moment. The authors have developed a set of arguments of remarkable breadth, depth, and originality. The arguments are fleshed out with terrific, vivid illustrations. The analysis is subtle and penetrating but leavened with playful humor. The authors are also brutally honest about the extreme implications of their positions. Indeed, they seem to relish these contrarian and radical repercussions, as we will see. I have no doubt that the book will be grist for the mill of criminal law theorists for many years to come.