Two Kinds of Culpability

There are two kinds of culpability at work in the criminal law, though they are not always clearly distinguished. The narrower kind is the mental element of wrongdoing — such as whether the agent intended harm, foresaw harm, recklessly caused harm, or negligently caused harm — whereas the broader kind involves blameworthiness, tied to responsibility. Each is an important part of an adequate criminal jurisprudence, because they correspond to different parts of a retributive desert basis for punishment that sees censure and sanction as fitting responses to wrongdoing for which the agent is responsible. Distinguishing these two kinds of culpability provides conceptual clarity and allows us to avoid some mistakes about the role of culpability in the criminal law. Moreover, the two kinds of culpability concern different kinds of responsibility. Narrow culpability is concerned with responsibility as attributability, because it reflects morally significant qualities of the agent’s will, whereas broad culpability is concerned with responsibility as accountability, because fairness requires that only wrongdoing for which the agent was responsible be punished. Finally, the two kinds of culpability give rise to two different conceptions of strict liability crimes — liability without narrow culpability and liability without broad culpability — both of which are condemned by fairness norms in a broadly retributive criminal jurisprudence.