Criminal law commonly requires judges and juries to decide whether defendants acted “reasonably.” Nevertheless, issues of reasonableness fall into two distinct categories: (1) where reasonableness concerns events and states, including risks of which an actor is conscious, that can be justly assessed without regard to the actor’s individual traits, and (2) where reasonableness concerns culpable mental states and emotions that cannot justly be assessed without reference to the actor’s capacities. This distinction is significant because, while the “reasonable person” by which category-1 cases are assessed is a disembodied and impersonal ideal that consists of nothing but the uncompromising values of the jurisdiction, the reasonable person by which category-2 cases are measured must necessarily incorporate some of an actor’s individual traits or risk blaming the blameless. Courts and commentators have thus far approached the task of individualizing or subjectivizing reasonableness in category 2 by trying to determine in advance which individual traits are generally relevant and which are not. I propose an alternative approach that, in addition to applying to negligence and voluntary manslaughter cases alike, derives its content from the social practice of blaming. I propose that a reasonable person in category-2 cases consists of every physical, psychological, and emotional trait an actor possesses, with one exception—the exception being that he possesses proper respect for the values of the people of the state as reflected and incorporated in the statute at hand.
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See Fletcher (1985: 949) (‘One of the most striking particularities of our discourse in its pervasive reliance on the term ‘reasonable’. We routinely refer to reasonable time, reasonable delay, reasonable reliance, and reasonable care. In criminal law, we talk incessantly of reasonable provocation, reasonable mistake, reasonable force, and reasonable risk.’).
See, e.g., Model Penal Code §§ 3.04(3) (a person may confine another in self-defense if the person makes ‘all reasonable efforts’ to terminate the confinement as soon as he knows that he safely can); 220.1(3) (a person who either starts a fire or has a duty to prevent it is guilty if he ‘fails to take reasonable measures’ to control or extinguish it); 223.5 (a person who comes into possession of property that he knows belongs to another is guilty if he ‘fails to take reasonable measures’ to restore the property to the owner); 250.2(1) (a person is guilty of disorderly conduct if, with the purpose to annoy, he ‘makes unreasonable noise’); 250.2(2) (a person who engages in disorderly conduct is guilty if he persists after reasonable warning or request’ to desist).
See, e.g., MPC §§ 210.1, 2.02(2)(d) (the mental state of ‘reasonable’ inadvertence to a risk of death exculpates persons of blame for homicide).
MPC § 210.3 (the ‘reasonable[ness]’ of extreme emotional disturbance partially exculpates persons of blame for homicide).
“Reasonable” also operates in criminal law to achieve purposes independent of assessing an actor’s responsibility. See, e.g., MPC § 301.1 (a judge may attach ‘reasonable’ conditions to a defendant’s probation).
Thus, despite its being sometime said (albeit without supporting authority) that a reasonable person for purposes of heat of passion and duress is an average person, including average persons who are homophobic or cowardly, a reasonable person for purposes of duress is a person who manifests the kind of courage that society has a right to expect of persons; and a reasonable person for purposes of heat of passion is a right-minded person. See Westen (2007: 255 n.42).
Average persons, unfortunately, are perfectly capable of acting unlawfully by, for example, driving in excess of speed limits, downloading copyrighted material from the internet, avoiding taxes, ingesting controlled substances, looting in the context of natural disasters and riots, and even, as in Rwanda, engaging in genocide. And when they do so, they are answerable for it.
When behavioral choices are binary, i.e., either right or wrong, being “not wrong” is indistinguishable from being right. However, when behavioral choices are tertiary—that is, right, wrong, or neither right or wrong—a middle ground exists between right and wrong, and a person should be punished only if the choice he makes is “wrong.” See Westen et al. (2003: 833–38).
For the diversity of positions among the 50 states, see Heller (1998).
Regina v. Smith (Morgan),  1 AC 146, 173 (House of Lords) (Lord Hoffmann) (lead opinion) (the ‘reasonable man’ is an ‘opaque formula’ that judges are no longer obliged to invoke); id. at 180 (Lord Clyde) (‘Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that particular expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man.’).
Moran (2003: 303, 316).
To my knowledge, the Model Penal Code was the first to speak of ‘individualization.’ See Model Penal Code and Commentaries (1985: § 210.3, 62).
Burke (2005: 1069).
Dressler (2002: 994).
Husak (1996: 601).
See, e.g., Moran (2003: 232–73 (assuming that reasonableness is solely a measure of culpability); Simester (2000: 105–06) (stating that reasonableness is a measure of culpability, not a measure of conduct, all things considered). But see Lee (2003: 269–73) (distinguishing reasonable beliefs from reasonable acts); Simons (2001: 292) (distinguishing negligence as conduct from negligence as culpability).
The conduct for which reasonableness is the measure can consist of causing harms or evils that the law ordinarily prohibits but permits under certain circumstances, e.g., when the law authorizes a person to use ‘reasonable’ force to protect himself. Or the conduct can consist of creating actual risks of such harms or evils, e.g., when the law punishes those who actually endanger others. For discussion of what it means to create an “actual” risk to another, see note 33, infra.
For this usage of “ex ante” and “ex post,” see McMahan (2005).
See Conn. Gen. Stat. §53a-19 (2007) (‘A person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force’) (emphasis added).
For the contrast between North Dakota (which defines self-defense in terms of what Paul Robinson calls “deeds” and excuse regarding self defense in terms of “reasons”) and jurisdictions that define self-defense solely in terms of reasons, see Westen (2005: 299–310).
Doug Husak and Ken Simons have both pointed out to me that, as a measure of conduct, the vague prescriptive term “reasonable” in self-defense can be replaced with more precise terms, including “proportionate” and “necessary.” Husak and Simons are right with respect to self-defense. However, it is not clear to me that they are right with respect to other usages of “reasonableness” as a measure of conduct. See the usages in note 3, supra. Moreover, it is worth noting that at least one of the terms with which reasonableness can be replaced as a measure of conduct in self defense, i.e., “proportionate,” is itself a prescriptive rather than descriptive term. For discussion of the possibility of a descriptive criminal law, see Michaels (2000).
See State v. Cox, 532 N.W.2d 384, 388 (N.D. 1995) (construing N.D. Cent. Code, § 12.1-05-03(1) (2005)) (‘The question of the reasonableness of the defendant's conduct in resisting an unlawful arrest is properly determined by the jury upon all of the facts’).
See N.D. Cent. Code, § 12.1-05-08 (2005) (‘A person's conduct is excused if he believes that the facts are such that his conduct is necessary and appropriate for any of the purposes which would establish a justification or excuse under this chapter, even though his belief is mistaken. However, if his belief is negligently or recklessly held, it is not an excuse in a prosecution for an offense for which negligence or recklessness, as the case may be, suffices to establish culpability.’) See also State v. Ronne, 458 N.W.2d 294 (N.D. 1990).
See Fletcher (1974: 1292–93).
N.D. Code §§ 12.1.16-01 (murder), 12.1.16-02 (manslaughter), 12.1.16.03 (negligent homicide) (2006).
See note 28, supra.
See N.D. Code § 12.1-16-03 (2006) (‘A person is guilty of a class C felony if he negligently causes the death of another human being’).
See MPC and Commentary (1985: 242).
It is generally agreed that “risk” is an epistemic concept and, hence, is defined by reference to a real or imaginary person’s viewpoint. See Alexander (2000: 935–36). Whether an actor is culpable in taking a risk is a function of his viewpoint. Whether a risk actually exists is necessarily a function of some viewpoint independent of the actor’s. An actual risk of a harm or evil can always be said to have existed when, taking the viewpoint of society ex post, the harm or evil is known to have occurred. However, it is not clear whether any objective viewpoint exists by which to measure “actual” risks in cases in which harms or evils do not occur. Paul Robinson believes it is possible, but he does not specify the viewpoint by which such actual risks might be assessed. See Robinson (2003).
For the persuasive argument that the MPC’s reference to ‘substantial and unjustifiable’ should be understood to mean ‘substantially unjustified,’ see Dressler (2000: 956–58).
For an illuminating analysis of questions that section 2.02(2)(c) presents, see Simons (2003: 188–95).
Cf. MPC and Commentaries (1985: § 2.02, 237 n.14).
Id. at 237 (‘Some standard is needed for determining how substantial and unjustifiable the risk must be in order to warrant a finding culpability. There is no way to state this value judgment that does not beg the question in the last analysis; the point is that the jury must evaluate the actor’s conduct and determine whether it should be condemned’).
The MPC commentaries make it clear that to consciously take a substantial and unjustifiable risk is itself culpable, see MPC Commentaries (1985: § 2.02, 237 nn.14–15), albeit not sufficiently culpable to deserve criminal punishment. They also make it clear that in order to be deserving of criminal punishment, such risk taking must not only be culpable, but involve ‘culpability to a high degree’. See id. at n.15. Section 2.02(2)(c) captures this requirement that such risk taking involve a ‘high degree’ of culpability, by requiring that it involve a ‘gross’ deviation from the standards that a law-abiding conduct person would observe—thus implying that all such risk taking involves a deviation from the standards that a law-abiding person would observe.
Seventeen adopting states have changed ‘law-abiding’ to ‘reasonable.’ See Code of Alabama §13A-2-2(3); Alaska Statutes § 04-21-080(a)(3); Arizona Revised Statutes. § 13-105(9)(c); Arkansas Code Annotated § 5-2-202(3); California Penal Code § 450(f); Connecticut General Statutes §53a-3(13); 11 Delaware Code §231(c); 720 Illinois Compiled Statutes. §5/4-6; Iowa Code §235B.2(12); Kentucky Revised Statutes §501.020(3); Annotated Laws Massachusetts. ch. 265, §13L; Revised Statutes Missouri § 562.016(4); New Jersey Statutes §2C:2-2(b)(3); New York Consolidated Law Service Penal §15.05(3); Oregon Revised Statutes § 161.085(9); 18 Pennsylvania Compiled Statutes § 302(b)(3); Wyoming Statutes §6-1-104(a)(ix) (2006). Only four adopting states have adhered to the MPC’s term ‘law-abiding.’ See Hawaii Revised Statutes §702-206(3); Idaho Code §18-4101(G); Mississippi Code Annotated § 17-17-67(3); New Hampshire Statutes §626:2(II)(c).
To be sure, the MPC section on recklessness contains the same phrase, ‘in the actor’s situation.’ However, the phrase can be understood there to serve a purpose that is independent of any individualizing. See MPC Commentary, section 2.02(2)(c), p. 237. But see id. 242 at n.27 (stating, albeit 24 years after section 2.02(2)(c) was adopted, that individualization is appropriate to recklessness as well as negligence).
Although the MPC does not make this requirement explicit, for the MPC to make sense, it ought to be regarded as implicit. See Simons (1992: 550 n.294).
The MPC commentaries make it clear that, while it is a predicate of negligence that an actor be such that based upon what he knows to be the circumstances, he ‘should’ be aware of a significant and unjustifiable risk of which he is oblivious, his merely being oblivious is not ‘serious enough to be condemned’ unless it is also is a ‘gross’ deviation from the care that a reasonable person would observe—thus implying that an actor who is such that he should be aware of a significant and unjustifiable risk of which he is oblivious is one whose obliviousness is itself a deviation from the care that a reasonable person would observe. MPC Commentaries (1985: § 2.02, 241).
Cf. Pillsbury (1998: 145).
MPC Commentary, pt. I, section 2.02, p. 242.
Director of Public Prosecutions v. Bedder  1 W.L.R. 117 (H.L.).
See note 47, supra. English courts later disagreed on whether age and gender were the only distinguishing traits under Camplin that were admissible on the issue of control or among the distinguishing traits. Compare Regina v. Luc Thiet Thuan,  2 All ER 1033 (Privy Council) (gender and age are exclusive), with Regina v. Smith (Morgan),  4 All ER 387, aff’d,  1 A.C. 146 (House of Lords) (gender and age are non-exclusive).
Justice Tipping of New Zealand reported that Camplin, which New Zealand tried to follow, required ‘mental gymnastics’ on the part of jurors, Regina v. Rongonui,  2 NZLR 385, para. 236 (Tipping, J.); and his New Zealand colleague Justice Thompson reported that Camplin left jurors with ‘glazed looks’ in their eyes. Id. at para. 205 (Thompson, J.).
See Regina v. Luc Thiet Thurn, 2 All ER 1033 (Privy Council) (Lord Steyn, dissenting).
 1 AC 146.
Attorney General for Jersey v. Holley  3 WLR 29. See Regina v. James  1 All ER 759 (2006) (surmising that because the Privy Council, in dictum, specifically construed the English Homicide statute and the Jersey statute to be in pari materia, and because the Privy Council included a majority of the law lords of the House of Lords, the Privy Council’s decision would in practice likely be followed by the House of Lords, and that it, therefore, ought to be regarded as controlling as matter of law).
See Moran (2003: 259–60, 273, 284).
This may, indeed, be close to what the Model Penal Code means when it states that, although a reasonable person for purposes of provocation incorporates some of an actor’s individual traits, it does not incorporate his ‘idiosyncratic moral values,’ MPC Commentary, pt. 2, section 210.3, p. 62, and to what Lord Clyde means when he says in the same context that juries ought to consider every feature an actor possesses but him hold him to the ‘control over his passions which someone in his position is able to exercise and is expected by society to exercise’). Regina v. Smith (Morgan)  1 AC 146, 179 (House of Lords) (Lord Clyde).
The terms ‘appropriate’ and ‘reasonable’ are stand-ins for the unavoidable normative determinations that triers of fact must make regarding when a person’s failure to manage his disposition for inadvertence manifests sufficient disregard for the interests of others to merit condemnation. See MPC Commentary § 2.02(2)(c)–(d), pp. 237, 241. However, although the ultimate judgments are normative, empirical facts—such as what opportunities are empirically available to an actor to manage his disposition, and at what cost—are relevant to such determinations. I am indebted to Doug Husak for this point.
4 Wash. App. 908, 484 P.2d 1167 (1971). I rely on Paul Robinson’s description of the case in Robinson (2007: 8–14).
Thus, if it is a policy of the people of Washington that allowing lice on a child’s scalp is reason to terminate parental rights, the contrary views of parents, like Walter and Bernice Williams, are immaterial.
A state is unlikely to believe that the proper response to a risk of agency error or agency racism is to disregard the agency’s jurisdiction altogether (rather than to seek redress for abuse or racism within the agency’s appeal process and within the courts).
For a penetrating analysis and proposal regarding involuntary manslaughter, see Garvey (2006).
This instruction is designed for Williams, based upon what I assume to be the views of Washington state regarding equal protection. With respect to a jurisdiction believes that it is normatively appropriate for persons to be motivated by ethnically-specific values, the instruction would be changed to allow a jury to take race or ethnicity into account. See Terhune (1997). See generally Renteln (2004).
See, e.g., Morse (1984: 33–34) (‘I would abolish [the partial defense of reasonable heat of passion]… Reasonable people do not kill no matter how much they are provoked’).
See, e.g., Kahan et al. (1996: 293–95).
For a trenchant criticism that in their effort to explain passion, Kahan and Nussbaum simply ‘eliminate’ it, see Garvey (2005: 1717–22).
See Westen (2005: 338 n.109).
See Dressler (2002: 976). Cf. Aristotle, Nichomachean Ethics 1149a.25 (‘Anger seems to listen to reason to some extent, but to mishear it, as do hasty servants who run out before they have heard the whole of what one says, and then muddle the order’).
See, e.g., Girouard v. State, 321 Md. 532, 583 A.2d 718 (1991) (limited to certain categories of provocation, not including mere ‘taunting words’).
See, e.g., People v. Cassasa, 49 N.Y.2d 668, 404 N.E.2d 1310 (1980) (the ‘reasonableness’ of the defendant’s extreme emotional disturbance is entirely an issue of fact, not an issue of law).
See, e.g., Minnesota Code § 609.20(1) (2006) ([‘A person is guilty of manslaughter who] intentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances, provided that the crying of a child does not constitute provocation’).
See, e.g., Mison (1992: 135) (to instruct juries on voluntary manslaughter in “gay panic” cases is to ‘reinforc[e]… the notions that gay men are to be afforded less respect than heterosexual men’); Nourse (1997: 1334–35, 1384–85) (to instruct juries on voluntary manslaughter in adultery cases ‘endorses’ and ‘embraces’ outdated norms).
The question for each state to decide is, ‘What external legal norms, e.g., prohibitions against race-based decisionmaking, are implicitly incorporated into the statute at hand?’
Pillsbury (1998: 127) (‘in its current versions, provocation doctrine may further racial and class-based inequities by turning observations about what people commonly do into normative judgments about how they should act’).
See note 9, supra. See also MPC Commentaries (1985: § 210.3, 62) (‘reasonable[ness]’ is a ‘normative’ standard); Macklem et al. (2001: 825 n.21) (‘when the standard of self-control in provocation is said to be the standard of the merely ‘ordinary' person, this must be interpreted to mean the ordinarily reasonable person’).
In cases of voluntary intoxication, the following instruction might be added: “Provided that you that you shall not take into account the actor’s self-induced intoxication for any purpose, except where you find that the actor was taunted for being intoxicated, in which case you shall consider how insulted even a right-minded person would feel to be deliberately taunted for being intoxicated.”
The instruction assumes that it is, indeed, the state’s view that in responding to provocations, actors ought not to allow their extreme passions to be driven by views that are distinctive to their particular ethnic communities. If that is not the case, this provision would have to be deleted. See note 61, supra.
The difference between a cautionary instruction on homophobia, see note 75, supra, and a rule that categorically bars mitigation to voluntary manslaughter when anger is motivated by homophobia, see note 71, is that the former leaves the jury with final authority to assess the significance of homophobia in the case while the latter removes the case from the jury altogether.
Fletcher (1985: 962, 979–80).
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I am indebted to Larry Alexander, Joshua Dressler, Kim Ferzan, Doug Husak, Stephen Garvey, Ken Simons, Stephen Sugarman, and two of this journal’s anonymous reviewers for commenting on an earlier draft.
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Westen, P. Individualizing the Reasonable Person in Criminal Law. Criminal Law, Philosophy 2, 137–162 (2008). https://doi.org/10.1007/s11572-007-9041-2
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