Ferzan, Kimberly Kessler

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University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2012 Will the Real Paul Robinson Please Stand Up? Robinson's Conflicting Criminal Code Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship  Part of the Criminal Law Commons, Law and Philosophy Commons, and the Legal Theory Commons Repository Citation Ferzan, Kimberly Kessler, "Will the Real Paul Robinson Please Stand Up? Robinson's Conflicting Criminal Code" (2012). Faculty Scholarship at Penn Law. 2601. https://scholarship.law.upenn.edu/faculty_scholarship/2601 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact PennlawIR@law.upenn.edu. Will the Real Paul Robinson Please Stand Up?Robinson's Conflicting Criminal CodeKimberly Kessler Ferzan*Paul Robinson is widely regarded as one of the world's leading criminal lawtheorists. Moreover, Robinson does not spend all of his time in ivory towers; hedrafts criminal codes.' Thus, Robinson's world-view matters to the on-the-groundapplication of criminal law.Although Robinson famously advocates for a wide range of criminal lawdistinctions and doctrines, two of the most important aspects of his theory are (1)his reliance on the difference between conduct and adjudication rules, and (2) thedistinction he draws between "deeds" and "reasons" views of justification.Robinson takes seriously that some parts of criminal codes are directed towardcitizens as to how to behave, but other rules are meant to guide judges and jurors.And, he maintains that because justifications are conduct rules for citizens, theymust be guided by the "deeds" theory of justification, because the "reasons" theoryconflates the purpose of rules of conduct with the reasons for having principles ofadjudication.Here is Robinson's structure. Rules of conduct are the rules for citizens.They include the acts that are forbidden and the acts that are justified. Principlesof adjudication are rules for judges and juries.4 They include culpabilityprinciples.5 "Don't hit" is a rule of conduct. "It is worse for the defendant to hitpurposefully" is a principle of adjudication and grading. "You may hit if you arebeing attacked" is a rule of conduct. "The defendant may be excused if he thoughthe was under attack but was not" is a rule of adjudication.As for deeds versus reasons, because justifications, such as self-defense andnecessity, tell citizens what they may do, Robinson argues that justifications aredetermined solely by the objective facts (the "deeds" theory). Robinson maintains. Scholar in Residence, NYU Law School, Center on the Administration of Criminal Law;Professor of Law, Rutgers-Camden School of Law. I thank John Oberdiek and Dennis Patterson fortheir comments on earlier drafts, and Paul Robinson for early email exchanges on this topic while wewere working on Criminal Law Conversations.I See Curriculum Vitae of Paul H. Robinson, UNIv. OF PA. LAW SCH., (APR. 23, 2012)http://www.law.upenn.edu/cf/faculty/phrobins/cv.pdf.2 Paul H. Robinson, Four Distinctions That Glanville Williams Did Not Make: The PracticalBenefits of Examining the Interrelation Among Criminal Law Doctrines 10 (Univ. of Pa. Law Sch.,Pub. Law Research Paper No. 12-03, 2012), available at http://ssm.com/abstract-l 987762.3 Id4 Idatl1.s Id at 10.6 PAUL H. RoBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW 96 (1997).237OHIO STATE JOURNAL OF CRIMINAL LAWthat an act is justified when "there is no net societal harm."7 "Reasons" theory,which looks to what the defendant (reasonably) believed, is misguided accordingto Robinson because the defendant's beliefs do not determine what the defendantshould do.8 The facts determine that. Rather, the defendant's beliefs, when wrong,may still excuse him and are thus part of the principles of adjudication.9 In otherwords, people should act only when they are, in fact justified, but not when theymistakenly believe (even reasonably) that they are justified.Robinson argues that his structure provides a coherent and clear criminal lawwhile the reasons theory does not. For example, he claims that "the objectivedeeds approach is a dramatically more useful and clarifying conceptualization thanthe subjective reasons approach."'o However, Robinson fails to see that his veryown theories about risking and about self-defense incorporate the perspective ofreasons theories. And the combination of deeds and reasons that Robinsonunwittingly advocates leads to profound inconsistencies.Before setting forth the contradictions within his code, a brief interlude onepistemic perspectives is necessary. " Following Derek Parfit, Victor Tadros hasrecently argued that what is wrong, permissible, justified or required can be"epistemically relativized."12 That is, we can make any of these moral judgmentsfrom three perspectives: the facts themselves, the defendant's beliefs, or theevidence available to the defendant.13 Imagine Alice speeds 100 m.p.h. through anintersection; we will say that this conduct is "risky." However, from an omniscientperspective-the perspective of the facts-it may be clear that Alice will not hitanyone. Alice, from the perspective of her own beliefs, will believe the risk thatshe will hit someone to be at some level of probability. The evidence available toAlice, or a similar standpoint such as an "ideal observer" or "reasonable person,"may have different information than Alice herself and thus lead to a differentassessment (perhaps Alice is distracted and does not see an approaching schoolbus). The probabilities assigned by either Alice or the reasonable person will varywith the information available to that perspective-the speed, the time of day, thecrowd, etc., will all influence the assessment of the risk. And, depending upon theprobability of harm, Alice or the reasonable person can then assess whether takingSId. at 95.8 Paul H. Robinson, Objective Versus Subjective Justification: A Case Study in Function andForm in Constructing a System of Criminal Law Theory, in CRIMINAL LAW CONVERSATIONS 343,345-46 (Robinson, Garvey & Ferzan eds., 2009).9 ROBINSON, supra note 6, at 118-19.1o Robinson, supra note 8, at 346." For further discussion of the nature of risk and how it relates to culpability, see LARRYALEXANDER & KIMBERLY KESSLER FERZAN, WITH STEPHEN J. MORSE, CRIME AND CULPABILITY: ATHEORY OF CRIMINAL LAW 28-29 (2008).12 VICTOR TADROS, THE ENDS OF HARM: THE MORAL FOUNDATIONS OF CRIMINAL LAW 217-18(2011)." Id. at 218.238 [Vol 10: 1WILL THE REAL PAUL ROBINSON PLEASE STAND UP?the risk is justified. In contrast, from the fact-relative perspective, the harm willsimply not occur.Robinson has laid claim to the fact-relative perspective. Indeed, hisarguments about deeds theory's superiority over reasons theory rely on it.Specifically, his claim that a mistaken justification is not a justification, but ratheran excuse, turns on the requirement that others should only assist individuals whoare justified based on the facts. Imagine Betty believes that Carla is attacking her,but Betty is just reasonably mistaken. According to Robinson, Donald should notaid Betty because she is defending against someone who is not actually attackingher. Because there is no real threat, she is not to be assisted (Donald may not, say,throw her a weapon with which to defend herself), no matter how reasonable herbelief is. She may be entitled to an excuse, however, because her belief isreasonable and so we should not blame her if she harms her putative attacker inmistaken self-defense.Notably, Robinson attributes to reasons theorists a belief-relativeperspective.14 This would mean that reasons theorists think that one is justifiedwhenever one believes the justifying facts exist (e.g., a belief one is beingattacked). However, particularly with respect to mistaken justifications, reasonstheorists routinely require that that belief be reasonable, thereby laying claim to anevidence-relative perspective.15 This is important because Robinson does notrecognize that portions of his code, whereby he abandons a fact-relative analysisfor an evidence-relative perspective, actually shift him into reasons territory. Thisshift in perspective leads to Robinson contradicting himself. Cases with the verysame structure have different answers, depending upon whether Robinson hasadopted a fact-relative view or an evidence-relative view. Unfortunately forRobinson, these two perspectives cannot peacefully co-exist as the standard forconduct rules within one criminal code.Consider three cases.Alex:Alex is driving with Betty. Suddenly, Betty turns green and begins tovomit in Alex's car. Based on these appearances, Alex believes Betty's14 RoBINsoN, supra note 6, at 101 ("The standard formulation ... provides . . . 'an actor isjustified if he believes .... '").5 It may be that Robinson has drawn too much from his debate with Fletcher as to whetherthe actor must not only perform the right deed but also perform it for the right reason. However, thepermissibility of the action for reasons theorists does not come merely from a belief, but fromconformity with some objective standard. After all, Fletcher did not advocate just the "right reason"but also the "right deed." See also Douglas N. Husak, Justifications and Criminal Liability forAccessories, 80 J. CRIM. L. & CRIMINOLOGY 491, 508 (1989) (advocating a "best evidence available"standard).2392012]1OHIO STATE JOURNAL OF CRIMINAL LAWlife is in danger, speeds to the hospital, and runs a red light.Unbeknownst to Alex, Betty's just profoundly hungover.Did Alex behave negligently? According to Robinson, criminal law's rules ofconduct do not prohibit Alex's behavior. Robinson views this as an actus reusquestion. This is not about justification; this is not about excuse; this is not a mensrea problem. Rather, according to Robinson, Alex has not performed the actusreus of a risk creation offense because his conduct did not create a prohibited risk.Specifically, Robinson has argued that criminal codes only define the mens rea ofreckless and negligent conduct, but they need an actus reus of "creating aprohibited risk" as well. He has suggested the following formulation of aprohibited risk: "An actor creates a 'prohibited risk' when he creates a substantialand unjustified risk that a prohibited result will occur. A risk is substantial andunjustified if, given its nature, degree, and circumstances, its creation is a deviationfrom the standard of care of a reasonable person."1 6 He alternatively offers: "A'prohibited risk' is a risk that is of such a likelihood and of such a harm that thereasonable person would not judge it to be justified by the circumstances."17 Alexspeeds because he mistakenly believes he needs to get Betty to the hospital. Thisis not a prohibited risk under Robinson's formula. A reasonable person would actas Alex does.Can Robinson rely just on the speeding itself and not on the reason forspeeding? No. Notice that it has to matter why Alex is speeding for Robinson'sformulation. Indeed, both of his suggested formulations specifically take intoaccount whether the risk is justified. Moreover, the justification has to be takenfrom the ex ante perspective. Otherwise, whenever someone drives, whenever aconstruction worker uses dynamite, whenever a baseball player hits a ball thatcould fly into the stands, they are imposing a prohibited risk. To cabin theprohibition, the justification for the risk must be taken into account-normaldriving, building skyscrapers, and playing a popular sport.' 8 But once we take thejustification for the risk imposition into account, then it seems that Alex cannot becreating a prohibited risk because the risk to life and limb would be deemedjustified by a reasonable person in the circumstances. (Again, the reasonableperson in the circumstances never knows everything because it is never reasonableto drive if the car will kill someone, never reasonable to use dynamite if it will killa bystander, and never reasonable to hit a baseball that will fly into the stands andkill a spectator. The omniscient do not see risks and would find all and only those16 Paul H. Robinson, Prohibited Risks and Culpable Disregard or Inattentiveness: Challengeand Confusion in the Formulation of Risk-Creation Offenses, in 4 THEORETICAL INQUIRIES IN LAW367, 377 (2003); see also Robinson, supra note 2, at II ("In the context of rules of conduct, the lawmust define those ex ante risks that are prohibited.").17 See Robinson, supra note 16, at 378.1s See id at 376 (noting that the nature, degree, and justification for the risk and thecommunity's balance of these factors through the reasonable person standard is required).240 [Vol 10: 1WILL THE REAL PAUL ROBINSON PLEASE STAND UP?risks that actually cause harm to be prohibited.) From the perspective of beliefs orevidence, Alex acts permissibly. From the standpoint of facts, he does not.Robinson concludes Alex has not violated the actus reus conduct rule.Darryl:Carl is attacking Darryl. Just as Carl lifts up a knife to throw at Darryl,Darryl shoots Carl with a gun.Now, assume that we want to question whether Darryl is justified. Let usassume that we can know that Carl would have changed his mind (perhaps Carl haschanged his mind in the past, we have a diary, and so forth). According toRobinson, despite the chance that the aggressor may renounce, self-defense isjustified. One is justified to act in self-defense when the attack is immediatelynecessary, and one need not wait until the attack is imminent. In considering theimminence requirement, Robinson opines:Such a view is not entirely inappropriate since it gives A the opportunityto change his mind about killing D, and it thereby avoids the loss ofeither life. But one may disagree as to whether it is appropriate to givethe opportunity to A at D's expense, by forcing D to risk the chance thatA will decide to kill him a day earlier.19Here, Robinson allows D to act despite the fact that it may ultimately beunnecessary. In the context of a justification defense, Robinson considers whetherit is unfair to force D to bear the risk of error in determining whether D has ajustification defense and concludes that it is unfair to ask D to wait for certainty.Recall that Robinson tells us that an act is justified when there is no net socialharm. With respect to self-defense, the necessity limitation exists so that one doesnot kill aggressors, even culpable ones, if one does not have to. One role ofimminence, or the immediately necessary rule advocated by Robinson above, is toserve as a "proxy" for necessity. We only want defenders to kill when it isnecessary and thus require them to wait until the last possible minute.Notice then that what imminence is about is risk. We require the defender towait because there is some chance the aggressor will not go through with theattack. However, even at the point of immediate necessity, it may nevertheless betrue that the aggressor would not have gone through with the attack. Here, becauseCarl was not going to go through with the attack, Darryl did cause a net socialharm as he killed an aggressor whom it was unnecessary to kill. Darryl is beliefand evidence-relative justified, but fact-relative unjustified. In this case, Robinsonconcludes that Darryl is justified and he allows Darryl to act based on reasonableappearances.19 PAUL H. ROBINsON, 2 CRIMINAL LAW DEFENSES 79 (1984).2412012]OHIO STATE JOURNAL OF CRIMNAL LAWEllen:Ellen is taking her nightly jog. Out of nowhere, Fred runs up behind herand grabs her arm. Fearing that this person may be just about to attackher, Ellen stabs Fred. As it turns out, Fred was trying to catch up toEllen to give her the keys she had dropped.What result here? Robinson says that Ellen has made a mistake as to justification.She is excused, but she has not done the right thing.20 Notice again, that Ellen isbelief and evidence-relative justified, but she is fact-relative unjustified. Robinsonconcludes that Ellen is not justified, based on the facts.The problem for Robinson is that all three cases have exactly the samestructure. Alex incorrectly believes Betty is sick; Darryl incorrectly believes thatCarl will kill him; and Ellen incorrectly believes that Fred is about to attack her.None of them create a net social benefit-no speeding is authorized for hangovers,no killing is authorized when unnecessary, and no killings are authorized for falsebeliefs about good Samaritans. But, in each case, the person acts as a reasonable21person would. Yet, in cases one and two, Robinson privileges the reasonablenessof the belief in allowing Alex to run red lights and Darryl to respond to immediatethreats, but he denies that reasonable beliefs serve any ex ante conduct rulefunction for Ellen. The problem is that Robinson does not see that the evidence-relative perspective is precisely the territory that reasons theorists claim when theysay that Ellen's reasonable belief-that is, the belief from an objective, evidence-relative perspective-allows her to act. If Robinson is going to allow risks tomatter, thereby denying that Alex has committed the actus reus and that Darryl hasmade a wrong prediction, then he must also allow Ellen to act based on risks sheperceives. Either "reasonable and wrong" can exist within a conduct rule or itcannot. But Robinson must choose whether he is truly a deeds theorist, or areasons theorist in disguise.20 ROBINSON, supra note 6, at 100-01 (jogger-mistaken-for-attacker is example of mistakenreasonable belief which functions as an excuse).21 I am leaving aside my own skepticism about negligence. See ALEXANDER & FERZAN, supranote 11, ch. 3. This is an internal critique of Robinson's position.242 [ Vol 10: 1

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Will the Real Paul Robinson Please Stand Up? Robinson\u27s Conflicting Criminal Code

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Will the Real Paul Robinson Please Stand Up?Robinson's Conflicting Criminal CodeKimberly Kessler Ferzan*Paul Robinson is widely regarded as one of the world's leading criminal lawtheorists. Moreover, Robinson does not spend all of his time in ivory towers; hedrafts criminal codes.' Thus, Robinson's world-view matters to the on-the-groundapplication of criminal law.Although Robinson famously advocates for a wide range of criminal lawdistinctions and doctrines, two of the most important aspects of his theory are (1)his reliance on the difference between conduct and adjudication rules, and (2) thedistinction he draws between "deeds" and "reasons" views of justification.Robinson takes seriously that some parts of criminal codes are directed towardcitizens as to how to behave, but other rules are meant to guide judges and jurors.And, he maintains that because justifications are conduct rules for citizens, theymust be guided by the "deeds" theory of justification, because the "reasons" theoryconflates the purpose of rules of conduct with the reasons for having principles ofadjudication.Here is Robinson's structure. Rules of conduct are the rules for citizens.They include the acts that are forbidden and the acts that are justified. Principlesof adjudication are rules for judges and juries.4 They include culpabilityprinciples.5 "Don't hit" is a rule of conduct. "It is worse for the defendant to hitpurposefully" is a principle of adjudication and grading. "You may hit if you arebeing attacked" is a rule of conduct. "The defendant may be excused if he thoughthe was under attack but was not" is a rule of adjudication.As for deeds versus reasons, because justifications, such as self-defense andnecessity, tell citizens what they may do, Robinson argues that justifications aredetermined solely by the objective facts (the "deeds" theory). Robinson maintains. Scholar in Residence, NYU Law School, Center on the Administration of Criminal Law;Professor of Law, Rutgers-Camden School of Law. I thank John Oberdiek and Dennis Patterson fortheir comments on earlier drafts, and Paul Robinson for early email exchanges on this topic while wewere working on Criminal Law Conversations.I See Curriculum Vitae of Paul H. Robinson, UNIv. OF PA. LAW SCH., (APR. 23, 2012)http://www.law.upenn.edu/cf/faculty/phrobins/cv.pdf.2 Paul H. Robinson, Four Distinctions That Glanville Williams Did Not Make: The PracticalBenefits of Examining the Interrelation Among Criminal Law Doctrines 10 (Univ. of Pa. Law Sch.,Pub. Law Research Paper No. 12-03, 2012), available at http://ssm.com/abstract-l 987762.3 Id4 Idatl1.s Id at 10.6 PAUL H. RoBINSON, STRUCTURE AND FUNCTION IN CRIMINAL LAW 96 (1997).237OHIO STATE JOURNAL OF CRIMINAL LAWthat an act is justified when "there is no net societal harm."7 "Reasons" theory,which looks to what the defendant (reasonably) believed, is misguided accordingto Robinson because the defendant's beliefs do not determine what the defendantshould do.8 The facts determine that. Rather, the defendant's beliefs, when wrong,may still excuse him and are thus part of the principles of adjudication.9 In otherwords, people should act only when they are, in fact justified, but not when theymistakenly believe (even reasonably) that they are justified.Robinson argues that his structure provides a coherent and clear criminal lawwhile the reasons theory does not. For example, he claims that "the objectivedeeds approach is a dramatically more useful and clarifying conceptualization thanthe subjective reasons approach."'o However, Robinson fails to see that his veryown theories about risking and about self-defense incorporate the perspective ofreasons theories. And the combination of deeds and reasons that Robinsonunwittingly advocates leads to profound inconsistencies.Before setting forth the contradictions within his code, a brief interlude onepistemic perspectives is necessary. " Following Derek Parfit, Victor Tadros hasrecently argued that what is wrong, permissible, justified or required can be"epistemically relativized."12 That is, we can make any of these moral judgmentsfrom three perspectives: the facts themselves, the defendant's beliefs, or theevidence available to the defendant.13 Imagine Alice speeds 100 m.p.h. through anintersection; we will say that this conduct is "risky." However, from an omniscientperspective-the perspective of the facts-it may be clear that Alice will not hitanyone. Alice, from the perspective of her own beliefs, will believe the risk thatshe will hit someone to be at some level of probability. The evidence available toAlice, or a similar standpoint such as an "ideal observer" or "reasonable person,"may have different information than Alice herself and thus lead to a differentassessment (perhaps Alice is distracted and does not see an approaching schoolbus). The probabilities assigned by either Alice or the reasonable person will varywith the information available to that perspective-the speed, the time of day, thecrowd, etc., will all influence the assessment of the risk. And, depending upon theprobability of harm, Alice or the reasonable person can then assess whether takingSId. at 95.8 Paul H. Robinson, Objective Versus Subjective Justification: A Case Study in Function andForm in Constructing a System of Criminal Law Theory, in CRIMINAL LAW CONVERSATIONS 343,345-46 (Robinson, Garvey & Ferzan eds., 2009).9 ROBINSON, supra note 6, at 118-19.1o Robinson, supra note 8, at 346." For further discussion of the nature of risk and how it relates to culpability, see LARRYALEXANDER & KIMBERLY KESSLER FERZAN, WITH STEPHEN J. MORSE, CRIME AND CULPABILITY: ATHEORY OF CRIMINAL LAW 28-29 (2008).12 VICTOR TADROS, THE ENDS OF HARM: THE MORAL FOUNDATIONS OF CRIMINAL LAW 217-18(2011)." Id. at 218.238 [Vol 10: 1WILL THE REAL PAUL ROBINSON PLEASE STAND UP?the risk is justified. In contrast, from the fact-relative perspective, the harm willsimply not occur.Robinson has laid claim to the fact-relative perspective. Indeed, hisarguments about deeds theory's superiority over reasons theory rely on it.Specifically, his claim that a mistaken justification is not a justification, but ratheran excuse, turns on the requirement that others should only assist individuals whoare justified based on the facts. Imagine Betty believes that Carla is attacking her,but Betty is just reasonably mistaken. According to Robinson, Donald should notaid Betty because she is defending against someone who is not actually attackingher. Because there is no real threat, she is not to be assisted (Donald may not, say,throw her a weapon with which to defend herself), no matter how reasonable herbelief is. She may be entitled to an excuse, however, because her belief isreasonable and so we should not blame her if she harms her putative attacker inmistaken self-defense.Notably, Robinson attributes to reasons theorists a belief-relativeperspective.14 This would mean that reasons theorists think that one is justifiedwhenever one believes the justifying facts exist (e.g., a belief one is beingattacked). However, particularly with respect to mistaken justifications, reasonstheorists routinely require that that belief be reasonable, thereby laying claim to anevidence-relative perspective.15 This is important because Robinson does notrecognize that portions of his code, whereby he abandons a fact-relative analysisfor an evidence-relative perspective, actually shift him into reasons territory. Thisshift in perspective leads to Robinson contradicting himself. Cases with the verysame structure have different answers, depending upon whether Robinson hasadopted a fact-relative view or an evidence-relative view. Unfortunately forRobinson, these two perspectives cannot peacefully co-exist as the standard forconduct rules within one criminal code.Consider three cases.Alex:Alex is driving with Betty. Suddenly, Betty turns green and begins tovomit in Alex's car. Based on these appearances, Alex believes Betty's14 RoBINsoN, supra note 6, at 101 ("The standard formulation ... provides . . . 'an actor isjustified if he believes .... '").5 It may be that Robinson has drawn too much from his debate with Fletcher as to whetherthe actor must not only perform the right deed but also perform it for the right reason. However, thepermissibility of the action for reasons theorists does not come merely from a belief, but fromconformity with some objective standard. After all, Fletcher did not advocate just the "right reason"but also the "right deed." See also Douglas N. Husak, Justifications and Criminal Liability forAccessories, 80 J. CRIM. L. & CRIMINOLOGY 491, 508 (1989) (advocating a "best evidence available"standard).2392012]1OHIO STATE JOURNAL OF CRIMINAL LAWlife is in danger, speeds to the hospital, and runs a red light.Unbeknownst to Alex, Betty's just profoundly hungover.Did Alex behave negligently? According to Robinson, criminal law's rules ofconduct do not prohibit Alex's behavior. Robinson views this as an actus reusquestion. This is not about justification; this is not about excuse; this is not a mensrea problem. Rather, according to Robinson, Alex has not performed the actusreus of a risk creation offense because his conduct did not create a prohibited risk.Specifically, Robinson has argued that criminal codes only define the mens rea ofreckless and negligent conduct, but they need an actus reus of "creating aprohibited risk" as well. He has suggested the following formulation of aprohibited risk: "An actor creates a 'prohibited risk' when he creates a substantialand unjustified risk that a prohibited result will occur. A risk is substantial andunjustified if, given its nature, degree, and circumstances, its creation is a deviationfrom the standard of care of a reasonable person."1 6 He alternatively offers: "A'prohibited risk' is a risk that is of such a likelihood and of such a harm that thereasonable person would not judge it to be justified by the circumstances."17 Alexspeeds because he mistakenly believes he needs to get Betty to the hospital. Thisis not a prohibited risk under Robinson's formula. A reasonable person would actas Alex does.Can Robinson rely just on the speeding itself and not on the reason forspeeding? No. Notice that it has to matter why Alex is speeding for Robinson'sformulation. Indeed, both of his suggested formulations specifically take intoaccount whether the risk is justified. Moreover, the justification has to be takenfrom the ex ante perspective. Otherwise, whenever someone drives, whenever aconstruction worker uses dynamite, whenever a baseball player hits a ball thatcould fly into the stands, they are imposing a prohibited risk. To cabin theprohibition, the justification for the risk must be taken into account-normaldriving, building skyscrapers, and playing a popular sport.' 8 But once we take thejustification for the risk imposition into account, then it seems that Alex cannot becreating a prohibited risk because the risk to life and limb would be deemedjustified by a reasonable person in the circumstances. (Again, the reasonableperson in the circumstances never knows everything because it is never reasonableto drive if the car will kill someone, never reasonable to use dynamite if it will killa bystander, and never reasonable to hit a baseball that will fly into the stands andkill a spectator. The omniscient do not see risks and would find all and only those16 Paul H. Robinson, Prohibited Risks and Culpable Disregard or Inattentiveness: Challengeand Confusion in the Formulation of Risk-Creation Offenses, in 4 THEORETICAL INQUIRIES IN LAW367, 377 (2003); see also Robinson, supra note 2, at II ("In the context of rules of conduct, the lawmust define those ex ante risks that are prohibited.").17 See Robinson, supra note 16, at 378.1s See id at 376 (noting that the nature, degree, and justification for the risk and thecommunity's balance of these factors through the reasonable person standard is required).240 [Vol 10: 1WILL THE REAL PAUL ROBINSON PLEASE STAND UP?risks that actually cause harm to be prohibited.) From the perspective of beliefs orevidence, Alex acts permissibly. From the standpoint of facts, he does not.Robinson concludes Alex has not violated the actus reus conduct rule.Darryl:Carl is attacking Darryl. Just as Carl lifts up a knife to throw at Darryl,Darryl shoots Carl with a gun.Now, assume that we want to question whether Darryl is justified. Let usassume that we can know that Carl would have changed his mind (perhaps Carl haschanged his mind in the past, we have a diary, and so forth). According toRobinson, despite the chance that the aggressor may renounce, self-defense isjustified. One is justified to act in self-defense when the attack is immediatelynecessary, and one need not wait until the attack is imminent. In considering theimminence requirement, Robinson opines:Such a view is not entirely inappropriate since it gives A the opportunityto change his mind about killing D, and it thereby avoids the loss ofeither life. But one may disagree as to whether it is appropriate to givethe opportunity to A at D's expense, by forcing D to risk the chance thatA will decide to kill him a day earlier.19Here, Robinson allows D to act despite the fact that it may ultimately beunnecessary. In the context of a justification defense, Robinson considers whetherit is unfair to force D to bear the risk of error in determining whether D has ajustification defense and concludes that it is unfair to ask D to wait for certainty.Recall that Robinson tells us that an act is justified when there is no net socialharm. With respect to self-defense, the necessity limitation exists so that one doesnot kill aggressors, even culpable ones, if one does not have to. One role ofimminence, or the immediately necessary rule advocated by Robinson above, is toserve as a "proxy" for necessity. We only want defenders to kill when it isnecessary and thus require them to wait until the last possible minute.Notice then that what imminence is about is risk. We require the defender towait because there is some chance the aggressor will not go through with theattack. However, even at the point of immediate necessity, it may nevertheless betrue that the aggressor would not have gone through with the attack. Here, becauseCarl was not going to go through with the attack, Darryl did cause a net socialharm as he killed an aggressor whom it was unnecessary to kill. Darryl is beliefand evidence-relative justified, but fact-relative unjustified. In this case, Robinsonconcludes that Darryl is justified and he allows Darryl to act based on reasonableappearances.19 PAUL H. ROBINsON, 2 CRIMINAL LAW DEFENSES 79 (1984).2412012]OHIO STATE JOURNAL OF CRIMNAL LAWEllen:Ellen is taking her nightly jog. Out of nowhere, Fred runs up behind herand grabs her arm. Fearing that this person may be just about to attackher, Ellen stabs Fred. As it turns out, Fred was trying to catch up toEllen to give her the keys she had dropped.What result here? Robinson says that Ellen has made a mistake as to justification.She is excused, but she has not done the right thing.20 Notice again, that Ellen isbelief and evidence-relative justified, but she is fact-relative unjustified. Robinsonconcludes that Ellen is not justified, based on the facts.The problem for Robinson is that all three cases have exactly the samestructure. Alex incorrectly believes Betty is sick; Darryl incorrectly believes thatCarl will kill him; and Ellen incorrectly believes that Fred is about to attack her.None of them create a net social benefit-no speeding is authorized for hangovers,no killing is authorized when unnecessary, and no killings are authorized for falsebeliefs about good Samaritans. But, in each case, the person acts as a reasonable21person would. Yet, in cases one and two, Robinson privileges the reasonablenessof the belief in allowing Alex to run red lights and Darryl to respond to immediatethreats, but he denies that reasonable beliefs serve any ex ante conduct rulefunction for Ellen. The problem is that Robinson does not see that the evidence-relative perspective is precisely the territory that reasons theorists claim when theysay that Ellen's reasonable belief-that is, the belief from an objective, evidence-relative perspective-allows her to act. If Robinson is going to allow risks tomatter, thereby denying that Alex has committed the actus reus and that Darryl hasmade a wrong prediction, then he must also allow Ellen to act based on risks sheperceives. Either "reasonable and wrong" can exist within a conduct rule or itcannot. But Robinson must choose whether he is truly a deeds theorist, or areasons theorist in disguise.20 ROBINSON, supra note 6, at 100-01 (jogger-mistaken-for-attacker is example of mistakenreasonable belief which functions as an excuse).21 I am leaving aside my own skepticism about negligence. See ALEXANDER & FERZAN, supranote 11, ch. 3. This is an internal critique of Robinson's position.242 [ Vol 10: 1

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