Prohibited Risks and Culpable Disregard or Inattentiveness: Challenge and Confusion in the Formulation of Risk-Creation Offenses

Because they track the Model Penal Code, current criminal law formulations of risk offenses typically fail to distinguish the rule of conduct question - What risks does the criminal law prohibit? - from the adjudication question - When is a particular violator's conscious disregard of, or his inattentiveness to, a risk in a particular situation sufficiently condemnable to deserve criminal liability? Instead, the formulations address only the second question - through their definition of reckless and negligent culpability - and fail to provide a rule of conduct provision to define a prohibited risk.This reliance upon culpability definitions as the core of risk-creation offense definitions is problematic because it fails to announce a useable conduct rule that describes those risks the law prohibits. Instead, this approach subjectivizes the definition of prohibited risks. What may be held "reckless" or "negligent" for one person may not be "reckless" or "negligent" for another person in the identical situation - an effect that strips case adjudications of their value in educating the community as to risks that the rules of conduct prohibit.Current risk-creation offenses also are problematic because they make results - including the creation of a prohibited risk - irrelevant to criminal liability. While this is consistent with the Model Code's view that resulting harm is insignificant, that only culpable state of mind ought to affect liability, it is inconsistent with the view of most state code drafters. Thus, while the Model Code grades offenses without regard to whether a prohibited risk in fact is created, most state codes logically would want to grade lower in the absence of a prohibited risk.These two fundamental problems - the failure to distinguish conduct rules and adjudication rules and the confusion over the significance of results - are related. The Model Penal Code's general failure to distinguish conduct and adjudication rules made it less likely that state code drafters would notice what they would have seen as the Code's inappropriate subjectivization of risk and risk offenses. If the Model Code had systematically segregated conduct and adjudication rules, it would have been more obvious to state code drafters that the Code's formulation of risk-creation offenses was one that they could not accept.