Stanford Law Review

April, 1983

*681 ELEMENT ANALYSIS IN DEFINING CRIMINAL LIABILITY: THE MODEL PENAL CODE

AND BEYOND [FNd]

Paul H. Robinson [FNa]

Jane A. Grall [FNaa]

ARTICLE: 35 Stan. L. Rev. 681

INTRODUCTION .............................................................682

I. REFINEMENTS IN THE DEFINITION OF CRIMINAL LIABILITY ................685

II. ELEMENT ANALYSIS IN MODERN CODES: THE MODEL PENAL CODE CULPABILITY

SCHEME ...........................................................691

A. Culpability Terms Defined in Relation to Each Objective Element .694

B. Culpability Requirements Stated in an Offense Definition ........699

C. Culpability Requirements Supplied by General Provisions .........700

III. THE CASE FOR ELEMENT ANALYSIS ......................................703

IV. CONFUSION AND AMBIGUITIES IN MODERN CULPABILITY SCHEMES ............705

A. The Use of Undefined Culpability Terms ..........................705

B. Difficulties in Determining Whether an Objective Element Is a

Conduct, Circumstance, or Result Element .........................706

C. Combining Conduct and Result or Conduct and Circumstance Elements

in a Single Term .................................................709

D. Failure to Define Recklessness and Negligence with Respect to

Conduct ..........................................................710

E. Variations on Model Penal Code Section 2.02(3) (Requiring

Recklessness Where Culpability Is Not Specified) .................712

F. Conceptual and Practical Difficulties with Model Penal Code

Section 2.02(4): Applying a Stated Culpability Term to All

Elements of an Offense ...........................................714

G. Conflict and Inconsistency Between Model Penal Sections 2.02(3)

and 2.02(4): Element Analysis vs. Offense Analysis ...............715

V. ELEMENT ANALYSIS IN DEFINING CRIMINAL LIABILITY ....................719

A. A Proposed Scheme for Defining Offenses .........................719

B. Element Analysis and Mistake ....................................725

C. Element Analysis in Complicity ..................................732

D. Element Analysis in Attempt .....................................744

E. Element Analysis in Conspiracy ..................................751

SUMMARY AND CONCLUSION ...................................................757

*682 INTRODUCTION

The pursuit of fairness and effectiveness has inspired and guided criminal code reformers of the past two decades. [FN1] Because penal law protects the most important societal interests and authorizes the most serious sanctions the government may impose [FN2]-the stigma of conviction, imprisonment, and even death-a criminal code, more than any other body of law, should be rational, clear, and internally consistent. Only a precise, principled code that sufficiently defines forbidden conduct can achieve its goals of condemnation and deterrence. [FN3] Such a code gives citizens fair warning of what will constitute a crime, [FN4] limits governmental discretion in determining whether a particular individual has violated the criminal law, [FN5] and provides the distinctions among degrees of harm and degrees of culpability that create the foundation of a fair sentencing system. [FN6]

*683 American criminal law has advanced significantly towards providing such precision, clarity, and rationality, owing in large part to the Model Penal Code. The common law and older codes often defined an offense to require only a single mental state. [FN7] Under this "offense analysis," one spoke of intentional offenses, reckless offenses, and negligent offenses. The general culpability provisions of the Model Penal Code, in contrast, recognize that a single offense definition may require a different culpable state of mind [FN8] for each objective element [FN9] of the offense.

The majority of American jurisdictions have adopted criminal codes that incorporate this Model Penal Code innovation by requiring courts to apply an element analysis to each offense and theory of liability. [FN10] Indeed, element analysis may have constitutional significance. *684 Mullaney v. Wilbur, [FN11] Patterson v. New York, [FN12] and Jackson v. Virginia [FN13] require the prosecution to carry the burden of persuasion and the burden of production for all "elements of the offense." [FN14] Implementation *685 of these constitutional demands requires a full and accurate description of all elements.

Despite the importance of the Model Penal Code for precision and clarity in criminal law codification, its overwhelming adoption by the states, and its constitutional significance, neither the Model Penal Code drafters nor the legislatures and courts of jurisdictions following the Code's lead fully appreciate the dramatic nature of the Code's innovation and its far-reaching implications.

This Article seeks to illustrate the importance of the Model Penal Code's "element analysis" concept to a rational, clear, and just system of criminal law. It points out the vestiges of "offense analysis" remaining in the Code and demonstrates how these remnants produce ambiguities in the formulation of offense definitions and in the major doctrines of inculpation. It aims to bring the promise of element analysis to fruition. After a brief review in Part I of the theoretical developments leading to this concept, Part II examines the Model Penal Code provisions that commit the Code to element analysis. Part III summarizes the virtues of such an approach. The Code's implementation of element analysis is, however, defective in many respects. Close scrutiny reveals it to be unworkable in some instances and altogether ignored by courts in others. But these criticisms, described in Part IV, are not meant to impugn the genius of the initial thought. It is the concept of element analysis that facilitates the criticism. Part V proposes a specific culpability scheme for defining offenses and suggests reformulations of the major doctrines of inculpation.These proposals demonstrate the full potential of the concept of element analysis.

I. REFINEMENTS IN THE DEFINITION OF CRIMINAL LIABILITY

In his classic study of mens rea, Professor Sayre concludes that in early law "mens rea doubtless meant little more than a general immorality of motive." [FN15] The early conception of mens rea has also been described as "a general notion of moral blameworthiness," [FN16] an "evil-meaning mind," [FN17] and a "vicious will." [FN18] In Regina v. Prince, [FN19] for example, the defendant's reasonable belief that the girl was over sixteen *686 did not provide a defense to the crime of taking a girl under sixteen from the possession of her father. The defendant had the necessary mens rea, the court reasoned, because even if the girl had been over sixteen, the defendant's conduct would have been "wrong." [FN20]

Many writers have since quarreled with aspects of Sayre's characterization, [FN21] although most agree that the view of mens rea generally has shifted from a vague notion of wickedness to a more definite requirement of a specific state of mind. [FN22] " M ens rea to-day means something quite different from immorality of motive." [FN23] It means "a particular kind of intent ... a criminal intent, that is, the intent to *687 commit a crime ... an intent to do that which, whether the defendant knew it or not, constitutes a breach of the criminal law." [FN24]

Sayre, frustrated by "the baffling problem of exactly what constitutes this necessary mens rea," [FN25] concluded that "it is quite futile to seek to discover the meaning of mens rea by any common principle of universal application running alike through all the cases." [FN26] "A mens rea does not mean a single precise state of mind which must be proved as a prerequisite for all criminality. Mens rea, chameleon-like, takes on different colors in different surroundings." [FN27] While the old notion of "wickedness" may well have been satisfied by an identical showing for different offenses, the new notion of a specific state of mind could require a different state of mind for each crime or each general group of crimes. "The truth is," Sayre argued, "there is no single precise state of mind common to all crime.... The old conception of mens rea must be discarded, and in its place must be substituted the new conception of mentes reae." [FN28]

The Model Penal Code's move towards "element analysis" continued this refinement process by adding to the specific mental state concept detailed definitions of the required culpable states of mind. [FN29] In addition, the concept of a different mens rea for each offense acquired a larger, more precise meaning. Under the Code, a culpable state of mind requirement may exist for "each material element" of an offense. [FN30] Further, the culpability requirement may be different for different elements of the same offense. [FN31]

*688 "Offense analysis"-under which each offense has one state of mind requirement-existed and continues to exist as the dominant view of mens rea. Rather than requiring culpability as to "each material element," for example, several codes require an "act or intent, or criminal negligence" for "every crime or public offense." [FN32] Courts and statutes continue to speak of "general intent offenses" and "specific intent offenses." [FN33] Even the modern codes contain references to "an offense for which a specified level of culpability suffices to establish culpability," as if only one culpability level applied to each offense. [FN34]

*689 The offense analysis approach continues even though it is not clearly viable even within its own terms. Unlike the "wickedness" notion, which could be applied generally, the specific state of mind requirement necessarily involves recognition of the multifaceted nature of the mental state for each offense. [FN35] Under offense analysis, burglary requires an intention to commit a felony within a dwelling at night. [FN36] Yet this "intention" requirement has several distinguishable parts: the intent to enter, the intent to do so at night, the intent that the building be a dwelling, and the intent to commit a felony within. Just as a broken clock is correct twice a day, offense analysis can accurately describe the culpability elements of an offense only if the same level of culpability (e.g., intention) is fortuitously the appropriate one for each element of an offense. But where different culpability levels are appropriate for different elements, offense analysis fosters definitions that obscure but do not eliminate the confusion. [FN37]

For many offenses, one particular element may be of central concern. Some murder statutes require that an actor intend to kill another human being, and some manslaughter statutes require that an actor be reckless as to causing the death of another human being. [FN38] Thus, murder is commonly described as an "intentional" or "knowing" *690 offense, and manslaughter as a "reckless" offense. But even with murder, where a single culpability- culpability as to causing death-is of central concern, other culpability issues exist. An independent culpability element of homicide concerns the deceased's status as a "human being." A homicide case may hinge, for example, upon a doctor's state of mind as to whether an aborted fetus had matured into a "human being." [FN39] While intention may be the proper mental state to require for the objective element of "causing death," it may not be the appropriate mental state to require for the objective element of status as a "human being."

Because such questions can arise, they must be dealt with under any culpability scheme. Under offense analysis, these issues are frequently resolved by reference to a body of law that is conceived as separate from the definition of the offense, such as the law of mistake *691 or accident. [FN40] In other instances, such issues are deemed questions of first impression that, in the absence of controlling legislative history, courts feel free to decide on the basis of public policy arguments. [FN41] Too frequently, counsel, who view the case from the perspective of offense analysis, simply fail to raise such issues. Element analysis does not create these kinds of issues, but simply acknowledges their existence and dramatically serves to expose and interrelate the variety of issues that are necessarily inherent in the definition of an offense.

II. ELEMENT ANALYSIS IN MODERN CODES: THE MODEL PENAL CODE CULPABILITY SCHEME

Section 2.02 of the Model Penal Code, which provides general rules for the definition of liability, is perhaps "the single most important provision of the Code" [FN42] and the most significant and enduring achievement of the Code's authors. [FN43] Since this portion of the Model Penal Code was drafted in 1955, [FN44] it has exerted a major influence on criminal law reform in all but two of the thirty-eight jurisdictions *692 where reform has occurred. [FN45] Section 2.02 may appropriately be considered the representative modern American culpability scheme. [FN46]

Section 2.02 has had a significant impact because it clarifies mens rea analysis. [FN47] The eighty or so culpability terms existing in prior criminal codes [FN48] narrow in the Code to four: purpose, knowledge, *693 recklessness, and negligence. [FN49] Each term is defined in relation to each objective element of an offense- i.e., conduct, attendant circumstance, or result. [FN50] In addition, the drafters have developed general rules designed to eliminate confusion created when a legislature fails to specify a culpability requirement or to indicate whether a stated culpability term applies to one or to all of the objective elements *694 of an offense. [FN51]

A. Culpability Terms Defined in Relation to Each Objective Element

The Model Penal Code distinguishes between culpability terms as follows: A person acts "purposely" with respect to a result [FN52] if his conscious objective is to cause such a result. [FN53] A person acts "knowingly" with respect to a result if it is not his conscious objective, yet he is practically certain that his conduct will cause that result. [FN54] The essence of the narrow distinction between these two culpability levels is the presence or absence of a positive desire to cause the result; purpose requires a culpability beyond the knowledge of a result's near certainty. In the broader sense, this distinction divides the vague notions of "maliciousness" or "viciousness" from "callousness." The former may simply be an aggressively ruthless form of the latter, which is perhaps the very quality that distinguishes the two levels of culpability. [FN55]

*695 A person acts "knowingly" with respect to a result if he is nearly certain that his conduct will cause the result. If he is aware only of a substantial risk, he acts "recklessly" with respect to the result. [FN56] The narrow distinction between knowledge and recklessness lies in the degree of risk-"highly probable" versus "substantial"-of which the actor is aware. [FN57] The important distinction between recklessness (and lower levels of culpability) and both higher levels of culpability is that we condemn purposeful and knowing conduct for being "wilful," while we merely scold reckless conduct for being at most "careless." An offender whose conduct falls within the first category is often condemned for "intentional" conduct; one in the latter is scolded for "taking risks."

A person acts "recklessly" with respect to a result if he consciously disregards a substantial risk and acts only "negligently" if he is unaware of a substantial risk he should have perceived. [FN58] The narrow distinction lies in the actor's awareness of risk. [FN59] The distinction, one of the most critical to criminal law, between negligence and all three higher levels of culpability, reflects that a defendant acting purposely, knowingly, or recklessly is aware of the harmful consequences that may result and is therefore both blameworthy and deterrable, but a defendant acting negligently is unaware of harmful consequences and therefore is arguably neither blameworthy nor deterrable. While most reject this view of negligent culpability, [FN60] all *696 nonetheless recognize that negligence represents a lower level of culpability, qualitatively different from recklessness because the negligent actor fails to recognize, rather than consciously disregards, a risk. [FN61] For this reason, recklessness is considered the norm for criminal culpability, and negligence is punished only in the exceptional case. [FN62]

A person who fails to appreciate the risk that his conduct will cause a specific result is "negligent" only if that failure "involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation." [FN63] Thus, unless he grossly deviates from the standard of care that a reasonable person would observe, an actor is not negligent and, at least in the eyes of criminal law, is without cognizable fault. Liability imposed for faultless conduct is termed "absolute" or "strict" liability. The narrow distinction between negligence and strict liability focuses on whether the defendant's unawareness of the risk is a failure to meet the objective standard of the reasonable person. The broader distinction between the four categories of culpability and faultlessness is between conduct that grossly deviates from that of the reasonable, law-abiding person and conduct that does not and is therefore not blameworthy. Theoretical objections to strict liability understandably stem from a reluctance to punish conduct that is not unreasonable. [FN64]

Model Penal Code section 2.02(2) defines each culpability term with respect to each of the three kinds of objective elements: conduct, circumstances, and result. Chart I gives the section 2.02(2) definition for each variation.

CHART I: MODEL PENAL CODE § 2.02(2) CULPABILITY DEFINITIONS: MODEL PENAL CODE

§ 2.02(2) CULPABILITY DEFINITIONS

A person acts [culpability level] with respect to [type of objective element] when:

Type of Objective Element

-----------------------------------------------------------------------------

Culpability Circumstance Result Conduct

Level

------------- ---------------------- --------------------------- ---------

Purposely 'he is aware of such 'it is his conscious object 'it is his

[FN65] circumstances or ... to cause such a conscious

hopes that they result' [FN67] object to

exist' [FN66] engage in

conduct

of that

nature'

[FN68]

-------------

Knowingly 'he is aware ... that 'he is aware that it is 'he is

[FN69] such circumstances practically certain that aware

exist' [FN70] his conduct will cause that his

such a result' [FN71] conduct

is of

that

nature'

[FN72]

-------------

Recklessly 'he consciously 'he consciously disregards __[FN76]

[FN73] disregards a a substantial and

substantial and unjustifiable risk that

unjustifiable risk the material element ...

that the material will result from his

element exists' conduct' [FN75]

[FN74]

-------------

Negligently 'he should be aware of 'he should be aware of a __[FN80]

[FN77] a substantial and substantial and

unjustifiable risk unjustifiable risk that

that the material the material element ...

element exists' will result from his

[FN78] conduct' [FN79]

-------------

*699 The Code's definition of each culpability term with respect to each kind of objective element of an offense reflects a fundamental and critical principle of the Code's culpability scheme: Different degrees of culpability may be required with respect to different elements of the same offense. For example, indecent exposure may be defined as follows:

A person commits a misdemeanor if, for the purpose of arousing or gratifying sexual desire ... he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm. [FN81]

Thus, knowledge is required as to some elements, while purpose is required as to others. [FN82]

B. Culpability Requirements Stated in an Offense Definition

As the offense definition quoted above illustrates, more than one mental state requirement for an offense may be stated explicitly in the offense definition. But while some level of culpability must be required for each element of an offense, [FN83] offense definitions rarely include a culpability requirement for every objective element of the offense. The indecent exposure offense definition quoted above, for example, does not specify the culpability requirement that is applicable to the element of "exposes his genitals." Must the defendant be *700 purposeful, knowing, reckless, or only negligent as to exposing his genitals? General rules of construction supply the appropriate culpability requirement when the Model Penal Code offense definition leaves a gap as to an objective element.

C. Culpability Requirements Supplied by General Provisions

Model Penal Code section 2.02(3) supplies culpability requirements where offense definitions do not specify culpability for particular objective elements. Section 2.02(3) reads in "recklessly" for all circumstance and result elements. And, because of the Code's failure to define reckless conduct, it reads in "knowingly" for all conduct elements. [FN84] An application of section 2.02(3) to the definition of the indecent exposure offense quoted above [FN85] results in the following complete offense definition:

A person commits a misdemeanor if, for the purpose of arousing or gratifying sexual desire ... he [knowingly engages in conduct by which he recklessly causes the exposure of what he is aware of a substantial risk (i.e., reckless) are] his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm. [FN86]

*701 Obviously, such a comprehensive statement is rather contorted and difficult to understand. Moreover, the culpability requirements read in to complete the offense definition present significant issues less frequently than do the other elements. Precisely for these reasons, a general provision such as Model Penal Code section 2.02(3) is most useful. It provides a comprehensive statement of all culpability requirements as well as a readable offense definition. Such general provisions can be used to provide the proper mental state requirements because recklessness is generally accepted as the theoretical norm. [FN87]

The absence of a specified culpability requirement does not mean that culpability is not required. Modern codes permit strict liablity in very limited instances, generally only for the least serious offenses, such as traffic violations. [FN88] Model Penal Code sections 2.02(1) and 2.05, and similar provisions in state codes, require culpability for all *702 elements of all offenses other than offenses classified as "violations." [FN89] In some jurisdictions, when culpability is not required, a phrase such as "in fact" is inserted at the appropriate place in the offense definition to signal the absence of any culpability requirement. [FN90]

Legislatures can deviate in two ways from the Model Penal Code's norm of recklessness contained in section 2.02(3). First, as illustrated above, the legislature may modify a code offense definition by explicitly designating a culpability requirement other than recklessness for a particular objective element. Second, the legislature may provide that a single culpability requirement will apply to every element of an offense. [FN91] This second alternative is provided by section 2.02(4), which codifies a general rule of statutory construction requiring that a stated culpability term be applied to all elements of the offense. [FN92] Thus, where the offense of causing a suicide is defined to punish one who "purposely causes such suicide by force," [FN93] the actor must be purposeful as to the conduct, the effecting force, and the result of causing another to commit suicide. Normal rules of statutory construction would no doubt generate the same result. [FN94]

Model Penal Code sections 2.02(1), 2.02(2), and 2.02(3) commit the Code, and nearly all modern codes following its lead, to a system of element analysis.

*703 III. THE CASE FOR ELEMENT ANALYSIS

Element analysis provides the comprehensiveness, clarity, and precision needed to give fair notice and to limit govermental discretion, as required by the legality principle. [FN95] Taken together, the offense definition and the general culpability provisions can generate a comprehensive list of the minimum requirements for the offense. Such precise and clear offense definitions provide fair notice of the scope of the prohibition, [FN96] eliminate the need for judicial construction that may expand or reduce that scope, [FN97] and delineate the scope *704 so as to limit the arbitrary administration and application of criminal laws. [FN98]

Element analysis, by providing a precise statement of all separate elements of an offense definition, has the conceptual advantage of increased simplicity. It eliminates the need for separate bodies of law such as mistake and accident by demonstrating that these apparently independent doctrines are actually concerned with culpability as to particular objective elements. [FN99] In addition, the clarity and precision of element analysis has the practical effect of reducing litigation by reducing ambiguities in offense definitions. Element analysis also has the practical advantage of reclaiming for the legislature the role of defining the requirements for criminal liability. Indeed, this may be its most important practical advantage. As noted previously, a variety of potential culpability issues exists in every offense, even though offense analysis may not consider them. When an offense analysis code definition fails to resolve a culpability issue, the courts must supply the answer. [FN100] Thus, under offense analysis, a legislature in effect delegates to the courts certain authority to define crimes, a practice that is neither a wise [FN101] nor a likely choice for a legislature of today. [FN102]

*705 IV. CONFUSION AND AMBIGUITIES IN MODERN CULPABILITY SCHEMES

The Model Penal Code culpability scheme is a great improvement over "the variety, disparity, and confusion" of judicial definitions of "the requisite but elusive mental element" [FN103] that existed prior to its advent. As is nearly always the case with reform, however, even this great advance has its shortcomings. All jurisdictions that follow the Model Penal Code's formulation face a variety of common difficulties, [FN104] and in some cases, states have made matters still worse by tinkering with the scheme's provisions without fully understanding the implications of their changes. [FN105]

A. The Use of Undefined Culpability Terms

Despite their adoption of a limited number of defined culpability terms, many jurisdictions have failed to restrict their drafting to the defined terms. For example, while purporting to adopt the Model Penal Code scheme of precisely defined culpability terms, New Jersey at one time used terms such as "carelessly," [FN106] "heedlessly," [FN107] "wanton," [FN108] "willful," [FN109] "intent," [FN110] and "criminal negligence" [FN111] without *706 defining them. [FN112] Such undefined terms obviously undercut the Model Penal Code's advances in clarity, consistency, and predictability, characteristics particularly important in a criminal code.

B. Difficulties in Determining Whether an Objective Element Is a Conduct, Circumstance, or Result Element

A major defect of the Model Penal Code is its failure to define adequately the three kinds of objective elements of an offense-that is, to distinguish conduct, circumstance, and result elements. For example, is "obstructs" [FN113] a conduct or a result element? Does "insults another in a manner likely to provoke violent response" [FN114] consist of a single conduct element or of one conduct element and one or more *707 circumstance elements? Does "the death of another human being" [FN115] consist of a single result element or of a result element and a circumstance element?

Precise definitions of these three categories are important because such categories are used as terms of art in many places in the Code. [FN116] Perhaps even more important, a precise definition is essential for proper application of the defined culpability terms. For example, to act "purposely" with respect to "conduct" or in causing "a result," an actor must have such elements as his conscious object; [FN117] but to act "purposely" with respect to "an attendant circumstance," an actor need only be aware of such circumstance or hope that it exists. [FN118] Because of this asymmetry in the definitions of culpability as to different kinds of elements, the classification of an element becomes critical. The precise culpability requirements cannot be determined until each objective element of an offense definition is properly characterized as involving either "conduct," "an attendant circumstance," or "a result." The Code does not define "result" or "circumstance." It defines "conduct," but uses seemingly contradictory forms of that term in different Code provisions. Section 1.13 takes a narrow view, suggesting that "conduct" simply requires a bodily movement. [FN119] Section 2.02, in contrast, uses "conduct" in a broad sense to mean bodily movement and all its relevant characteristics. [FN120]

The practical problems created by the absence of a definition of the three types of objective elements-conduct, circumstance, and result-severely undercut the usefulness of defined culpability terms. For example, "theft by deception" entails purposely obtaining property *708 through deceit. [FN121] A person "deceives" if he purposely " c reates or reinforces a false impression as to value ." [FN122] Assuming, arguendo, that the prohibited "conduct" is "creates" or "reinforces," the proscribed "result" may be interpreted as either (a) a false impression as to value (with no "attendant circumstance"), (b) a false impression (with value as a "circumstance"), or (c) an impression (with both falsity and value as "circumstances"). Or, one might argue that the definition contains only a single elaborate conduct requirement: "creates or reinforces a false impression as to value."

Assume that a court applies section 2.02(4) [FN123] and requires that the defendant have acted purposely with respect to each element of this offense. The actor's conscious object must then encompass allconduct and results, [FN124] but because of the way "purposeful" as to a circumstance is defined, the actor need only be aware of the existence of a circumstance element, or hope that the circumstance element exists. [FN125] If the court applies interpretation (a) described above, the actor's conscious object must encompass every element of the offense because all elements are either conduct or results. [FN126] If interpretation (b) is applied, however, the actor's conscious object must encompass only "creating" and a "false impression"; he need only be aware that the false impression that was purposely created concerns "value." Finally, if the court applies interpretation (c), the actor's conscious object need only encompass "creating an impression"; he need only be aware of the fact that the impression is "false" and concerns "value." These differences create the potential to manipulate improperly the defendant's liability by altering the content of the categories "conduct," "result," and "circumstance," thereby altering the applicable *709 culpability definition. [FN127]

C. Combining Conduct and Result or Conduct and Circumstance Elements in a Single Term

Difficulties in distinguishing conduct, circumstance, and result elements also arise because most modern codes, including the Model Penal Code, use terms that combine "conduct" and "result" or "conduct" and "circumstance" elements. Verbs like "damages," [FN128] "obstructs," [FN129] "destroys," [FN130] "falsifies," [FN131] "kills," [FN132] and "desecrates" [FN133] all combine both an act and a result of that act. Verbs like "compels," [FN134] "agrees," [FN135] and "removes" [FN136] all combine both conduct and circumstance elements. Such combinations create ambiguities [FN137] and undermine consistency in the operation of the Code. [FN138]

*710 Consider a statute that forbids "recklessly obstructing any highway." What culpability should be required as to obstructing? A court might take any of three possible approaches. Because "recklessly" is not defined with respect to conduct, [FN139] a court may determine that "knowing" is the appropriate culpability for obstructions, since it is the minimum culpability defined with respect to conduct. [FN140] Second, a court may attempt to define reckless conduct, [FN141] but given the enactment of a comprehensive culpability scheme, this seems clearly a legislative task. A third, and perhaps the best, approach may be for a court to observe that the verb "obstructing" is a combination of separate conduct and result elements. The term "'obstructs' means to render impassable without unreasonable inconvenience or hazard." [FN142] In essence, the offense imposes liability when an actor engages in conduct by which he causes-i.e., "renders"- any highway to be impassable. [FN143] The culpability term "recklessly," under this approach, can be meaningfully read to apply to the result element of causing the highway to be impassable. The separate conduct element may be interpreted as requiring "knowing" conduct because that is the minimum culpability defined as to conduct.

D. Failure to Define Recklessness and Negligence with Respect to Conduct

As illustrated previously, the Model Penal Code's failure to define recklessness and negligence in relation to conduct creates certain difficulties. [FN144] One explanation for this failure is that the drafters determined that neither recklessness nor negligence as to conduct is likely to arise. The Model Penal Code commentary notes that " w ith respect to each of the three types of elements, the draft attempts to *711 define each of the kinds of culpability that may arise." [FN145] Other sections of the commentary, however, might be interpreted to suggest that the drafters did contemplate the possibility of recklessness or negligence as to conduct. [FN146] Indeed, certain Code offenses appear specifically to cover reckless conduct. For example, one who "recklessly tampers with tangible property of another so as to endanger person or property" commits criminal mischief. [FN147] Similarly, one who "purposely or recklessly ... kills or injures any animal" is guilty of cruelty to animals. [FN148]

One resolution of this difficulty is to argue that since some culpability is required as to each element of the offense [FN149] and since "recklessness" and "negligence" as to conduct are not defined, "knowledge"-the minimum culpability that is defined with respect to conduct-should be required. [FN150] This argument can be buttressed *712 by referring to section 2.02(5), which states that: "When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly." [FN151] Another solution is to define expressly "recklessness" and "negligence" with respect to conduct, [FN152] or, alternatively, to provide clearly that recklessness and negligence do not apply to a conduct element and that knowledge is the minimum culpability as to conduct. [FN153] Perhaps the best approach is to define "conduct" narrowly so as to limit the significance of the culpability as to that element to involuntary acts and to consider all issues raised by the nature of one's conduct as circumstance elements, for which "recklessness" and "negligence" are defined. [FN154]

E. Variations on Model Penal Code Section 2.02(3) (Requiring Recklessness Where Culpability Is Not Specified)

Model Penal Code section 2.02(3) requires recklessness for any element for which the offense definition does not specify culpability. As noted previously, this critical provision assures readable yet comprehensive offense definitions. [FN155] Some jurisdictions clarify the drafting problems that complicate the application of section 2.02(3). [FN156] Unfortunately, some jurisdictions deviate from the Code's approach by failing to include any provision like section 2.02(3). [FN157] This creates greater ambiguity, especially because these jurisdictions commonly include a code provision that requires culpability as to each *713 objective element.[FN158] In the absence of a general section to supply unstated culpability requirements, it is left to the court to select the applicable culpability requirement. [FN159] This delegation to the courts undercuts predictability and permits inconsistency between similar cases-just the sort of ambiguity and confusion that spurred the development of modern culpability schemes. Further, absent a provision like section 2.02(3) that reads in "recklessly" or "knowingly" for an unstated culpability term, judges may consider the general requirement of some culpability to be satisfied by negligence; this vitiates the commonly stated preference against criminal liability for negligence. [FN160]

*714 F. Conceptual and Practical Difficulties with Model Penal Code Section 2.02(4): Applying a Stated Culpability Term to All Elements of an Offense

Model Penal Code section 2.02(4) provides that where an offense definition specifies one culpability term, the term shall be applied to all elements of the offense, unless a contrary purpose plainly appears. [FN161] The commentary supports this provision as one that will embody the most probable legislative intent. [FN162] Scholars have praised the provision as one that eliminates the gross disparities that may occur between the culpability requirements of different elements of the same offense. [FN163] In reducing disparity, however, the provision may well go too far, allowing in some instances an exceptional culpability requirement, which is intended to apply only to one element of the offense, to govern the culpability requirements for the other offense elements.

Consider, for example, the offense of burglary. An actor commits burglary when he "enters a building or occupied structure ... with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." [FN164] As "purpose" is the only culpability element prescribed and as no contrary legislative purpose plainly appears, Model Penal Code section 2.02(4) would seem to require that the actor must act purposely with respect to each element. [FN165] In other words, the actor must be aware of or believe or hope that all the circumstance elements *715 exist. [FN166] But burglary is typically understood to require purpose only as to the "intent to commit a crime therein." [FN167] "Purpose" is an unusually stringent culpability requirement; "acting knowingly is ordinarily sufficient." [FN168] There are a few areas where legislatures want a stringent, "purposeful" requirement; in these areas the awkward concept of "specific intent" has traditionally been used. [FN169] A straightforward application of section 2.02(4), however, would allow the exception to become the rule.

G. Conflict and Inconsistency Between Model Penal Code Sections 2.02(3) and 2.02(4): Element Analysis vs. Offense Analysis

Model Penal Code section 2.02(3) requires recklessness whenever the offense definition fails to specify the culpability with respect to a particular element. [FN170] On the other hand, when the offense definition specifies only one culpability element, section 2.02(4) requires that this culpability requirement apply to all objective elements of the offense, unless a contrary purpose plainly appears. [FN171] Consider the definition of harassment:

A person commits a petty misdemeanor if, with purpose to harass another, he ... insults ... another in a manner likely to provoke violent or disorderly response. [FN172]

If section 2.02(3) is applied, the defendant must be purposeful only as to harassing another, and need be only reckless with respect to all other elements. If section 2.02(4) is applied, the actor must act purposely with respect to all elements. For the reasons stated above, the section 2.02(3) recklessness requirement should be preferred. Section 2.02(4) should apply only when the placement and effect of the stated culpability term suggest that it is intended to govern the culpability requirements for the other offense elements.

*716 The conflict between sections 2.02(3) and 2.02(4) reflects the two modern forms of the definition of offenses-element analysis and offense analysis-described in Part I of this Article. In providing that any stated culpability level applies to all elements of the offense, section 2.02(4) is characteristic of an offense analysis model of offense definition. Section 2.02(3), on the other hand, reflects the element analysis approach adopted in sections 2.02(1) and 2.02(2), which allow and facilitate the application of different culpability requirements to different elements of the same offense. Section 2.02(3) is, in fact, central to the implementation of element analysis. It assures that each objective element has an accompanying culpability requirement, but does not assume that such culpability is the same for each different element.

The coexistence of these two disparate models in different subsections of section 2.02 suggests that the drafters of the Code were either ambivalent about the merits of their element analysis innovation or simply carelessly inconsistent in effecting it. This inconsistency extends beyond the conflicting subsections of section 2.02; several other provisions of the Code appear to require offense analysis. In each instance, the provision improperly assumes that a single level of culpability will always suffice to establish culpability for an offense. For example, an actor who is reckless or negligent in forming a belief as to the justifiability of his own use of force is denied a justification defense if "recklessness or negligence, as the case may be, suffices to establish culpability for the offense charged." [FN173] Similarly, an actor who is reckless or negligent either in causing the situation that requires a choice of evils or in appraising the need for conduct to protect himself from harm, is deprived of the choice of evils defense "in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability." [FN174] As a final illustration, one who is negligent in placing himself in a situation where coercion is probable is deprived of the duress defense "whenever negligence suffices to establish culpability for the offense charged." [FN175]

In presuming that a single level of culpability can "suffice[] to establish culpability" for an offense, these provisions are predicated on the offense analysis model and not on the Code's element analysis scheme. Arguably, the quoted phrase "recklessness or negligence" is designed to refer to one of the several culpability requirements of an *717 offense definition. But if this is the design, should these provisions turn on the highest level of culpability required for any element of the offense, the lowest level of culpability, the level most commonly required among all elements, or the culpability required as to some particular objective element-such as a result element, if present? [FN176] *718 The commentary does not explain. [FN177] It is possible that the drafters of these other sections of the Code lacked a full understanding of the culpability concepts embodied in section 2.02, or were unfamiliar with that section's commitment to an element analysis culpability scheme. [FN178]

To confirm that the Code is indeed inconsistent, one can find several sections which, although analogous in function to those cited above, employ element analysis. One such section, for example, provides that a voluntarily intoxicated actor cannot claim that his intoxication negates an element when recklessness establishes that element. [FN179] In proper element analysis fashion, this provision requires an examination of the actor's culpability with respect to each element, implicitly recognizing that the requisite culpability may vary. [FN180] Similarly, section 2.05(2)(a) of the Code classifies as a mere "violation" any offense for which absolute liability is imposed "with respect to any material element of an offense," [FN181] thereby recognizing that the culpability requirements for different elements may be different. Section 2.05(2)(b) similarly speaks of absolute liability imposed by law "with respect to one or more of the material elements of *719 an offense ...." [FN182] The intoxication and absolute liability provisions illustrate the feasibility of drafting provisions that effectuate element analysis and provide a model for redrafting provisions that improperly regress to an offense analysis scheme.

V. ELEMENT ANALYSIS IN DEFINING CRIMINAL LIABILITY

As Part IV makes clear, the Model Penal Code's implementation of the element analysis concept is seriously flawed, if not entirely unworkable. But the significant advantages of such an approach make it worth salvaging, if possible. This part of the Article proposes, in section A, a culpability scheme that resolves most of the difficulties with the Model Penal Code provisions. Section B discusses the relationship between culpability requirements under element analysis and the law of mistake and concludes that the latter is for the most part rendered obsolete by a comprehensive culpability scheme.

Sections C, D, and E take up the three most important general provisions that impose criminal liability-the provisions defining complicity, attempt, and conspiracy liability. Each section offers an element analysis critique of the governing Model Penal Code provisions to illustrate the Code's weaknesses and ambiguities. Then, drawing upon case law to determine the current consensus, if any, on substantive issues, each section proposes an element analysis formulation for the provisions.

A. A Proposed Scheme for Defining Offenses

Nearly all of the difficulties with the Model Penal Code scheme described in Part IV can be avoided with the following revisions. These revisions not only make the Code's fundamental scheme workable, but they also reflect a sounder theoretical position than that of the Code. Five revisions are urged.

First, "conduct" elements should be defined literally, and thus narrowly, to mean pure conduct, that is, to mean the actual physical movement of the actor. Thus, objective elements of an offense definition that might otherwise be classified as conduct elements, but which actually describe characteristics of the conduct-i.e., elements concerning the "nature of conduct" [FN183]-should be treated as circumstance *720 elements. For example, according to the definition of harassment, a person commits an offense if he "insults ... another in a manner likely to provoke violent ... response." [FN184] Here, the conduct element is the simple act of speaking; the conduct's characteristics-its insulting character, its likelihood of provoking a violent response-should be treated as circumstance elements.

As a corollary to this first revision, whenever a single verb compounds a conduct element with a result element or a conduct element with a circumstance element, the legislature should redraft the language to express each element in a separate word. Absent such redrafting, courts should separate the elements by interpretation. [FN185] This approach also clearly identifies where result elements in fact exist and, therefore, where the special requirements of causation apply. [FN186]

The conduct element therefore emerges as a relatively unspecific and unimportant aspect of an offense. In homicide, for example, the particular conduct the actor engages in to cause the death of another human being does not matter. [FN187] What matters is that the actor's conduct, of whatever nature, did cause the prohibited result. The *721 most significant elements of an offense definition, then, are the circumstance and result elements.

This narrowly defined conduct element will still adequately serve the important purposes of an act requirement: to limit omission liability, [FN188] to give a point of reference for such collateral issues as the statute of limitations, [FN189] to permit enforcement of the concurrence requirement, [FN190] to establish jurisdiction [FN191] and venue, [FN192] and to help distinguish single and multiple offenses for the application of double jeopardy and related multiple offense limitations. [FN193] Moreover, because it provides a more definite and specific point of reference, this narrow definition of conduct may satisfy many of these purposes more effectively than would the broader definition of conduct elements. [FN194]

The second revision, which follows logically from the narrow scope of the conduct element definition, is to give the culpability requirement*722 accompanying the conduct element a similarly narrow meaning and to recognize it as having little practical significance. Since conduct encompasses only a simple act, not the circumstances accompanying or the results following the act, the culpability requirement for the conduct should encompass only the mental state as to the simple act and not as to the circumstance or result. Otherwise, "knowing" conduct-"being aware of the nature of" one's conduct [FN195]-could be all-encompassing, possibly requiring that the actor be aware of the pertinent attendant circumstances of his conduct or be aware that the pertinent result is likely to follow from his conduct. But, insofar as the Model Penal Code gives a definition of "knowing" as to circumstance and result elements different from that it gives as to conduct elements, such a broad interpretation of culpability as to conduct would short-circuit this definitional scheme and thereby undermine element analysis generally.

Under the narrow definition of conduct, the accompanying culpability-being aware of one's conduct-simply requires, for example, that an actor be aware that he is moving his trigger finger or swinging his arm. In other words, conduct culpability does nothing more than encompass the voluntariness requirement of Model Penal Code section 2.01 and is therefore superfluous. [FN196] Perhaps more important, the only cases at issue under such a narrowly defined conduct element would involve an actor suffering a considerable disability-e.g., an actor who is unaware that he is moving his finger or arm. Such abnormalities require detailed consideration, and distinct provisions, such as the voluntariness requirement, or excuse defenses, such as insanity, can and do permit more detailed *723 consideration than can an offense definition. [FN197] The culpability requirements of an offense definition, in contrast, are most effective at describing the liability of normal persons who are responsible for their conduct. [FN198]

Furthermore, such a narrow interpretation of conduct solves the problems created by the drafters' possibly inadvertent failure to define recklessness and negligence as to conduct. This solution is preferable to creating a definition of recklessness and of negligence as to conduct [FN199] because the narrow definition of conduct proposed here is more consistent with the common meaning of that term as well as with its defined meaning in the Code. [FN200] Once defined narrowly, this culpability requirement would be easily satisfied, and therefore generally would be unimportant in the average case.

Offense definitions, then, would consist primarily of a series of circumstance and/or result elements and their accompanying culpability requirements. [FN201] This points to the importance of another reform. While the Model Penal Code contains excellent provisions that precisely define each level of culpability as to a circumstance or a result element, distinguishing circumstance elements from result elements can be difficult. [FN202] The Code provides no guidance on this *724 issue. For example, is causing the "obstruction of a highway" a single result element? Or is it a result element of causing an "obstruction" and a circumstance element of "a public highway"?

To resolve such problems, the third revision would define a result as a circumstance changed by the actor. All elements that did not fit this definition would be independent circumstance elements. In the hypothetical above, the actor creates only the obstruction; he cannot create or alter the road's status as a "public highway." Under this revision, "causing an obstruction" would be a result element, and "public highway" would be a circumstance element. [FN203]

The net effect of these three revisions is to make the Model Penal Code culpability scheme notably easier to apply. In every offense, the conduct element, although perhaps linguistically merged with other elements, would simply perform the function of the act requirement. Result elements would be easy to detect; they would be circumstances changed by the actor. All other elements would be circumstance elements.

The fourth and fifth revisions concern unstated culpability requirements. Both flow from the fundamental premise of element analysis-different elements of the same offense may have different culpability requirements. The fourth proposal, governing those instances in which an offense definition expressly provides one or more culpability requirements, entirely eliminates section 2.02(4), a misbegotten section [FN204] which now requires that any stated culpability term be applied to all elements of an offense. [FN205] This proposal replaces that section with the following provision: A stated culpability term should apply to the remainder of only the particular grammatical clause in which it appears unless the context plainly demonstrates that it is intended to apply to other, subsequent clauses as well. [FN206] In *725 order for this fourth revision to be effective, it must rely on and final, revision to complete the scheme. The fifth proposal provides that recklessness is the appropriate mental state requirement for all unstated culpability requirements without regard to the culpability requirements specified for other offense elements, unless the legislature more specifically expresses a contrary purpose. For example, in the absence of legislative direction to the contrary, recklessness would be required as to the circumstance element of an unlicensed or unprivileged entry in burglary. This proposal incorporates the Model Penal Code position that the culpability level of recklessness should be applied when the required culpability is unstated, a position that is appropriate because recklessness is generally accepted as the appropriate norm for imposing criminal liability. [FN207]

Thus, the fourth and fifth revisions neither raise [FN208] nor lower [FN209] the culpability requirements that are stated in an offense definition. They are, rather, drafting techniques by which the legislature can, as effectively, as easily, and as clearly as possible, define the culpability requirements it desires. If a culpability requirement other than recklessness is to apply to a particular element, the legislature need only state such culpability requirement in the offense definition. Under the proposal, the legislature may state the requirement without fear that it will be mistakenly interpreted to apply to all of the elements.

B. Element Analysis and Mistake

Offense analysis relies on the law of "mistake" to resolve most *726 unanswered questions concerning the culpable state of mind requirements for liability. [FN210] Under element analysis, however, determining whether a reasonable or an unreasonable mistake as to a particular circumstance will provide a defense requires nothing more than determining what culpable state of mind is required as to that circumstance element. The Model Penal Code expressly recognizes the interdependence, and indeed the interchangeability, of culpability requirements and mistake defenses when it provides that " i gnorance or mistake as to a matter of fact or law is a defense if ... the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense." [FN211] Many states have similar provisions. [FN212]

Technically, such provisions are unnecessary. They simply confirm what is stated elsewhere: "No person may be convicted of an offense unless each element of such offense is proven beyond a reasonable doubt." [FN213] If the defendant's ignorance or mistake makes proof of a required culpability element impossible, the prosecution will *727 necessarily fail in its proof of the offense. [FN214] Assume, for example, that incest is defined as "having intercourse with a person the actor knows to be an ancestor, descendent, or sibling." [FN215] If the evidence suggests that the defendant honestly believed that the person with whom he was having intercourse was entirely unrelated to him, the prosecution will be unable to prove, as required, the defendant's knowledge of his familial relationship to his partner; the defendant's mistake will provide a "defense." [FN216]

Offense analysis resolves the issue of mistake as to family relation in an incest prosecution under what is perceived to be an independent law of mistake, developed primarily by the courts. But such a "law of mistake" violates the notice and precision requirements of the legality principle and improperly delegates to the courts a criminalization decision that belongs to the legislature. [FN217] Element analysis, in contrast, clearly defines every culpability requirement as to every objective element, thus avoiding these criticisms.

Habit will no doubt provide a continuing temptation to speak of mistake defenses rather than culpability requirements. Element analysis does not require using the "culpability requirement" rather than "mistake defense" terminology. The choice is simply one between a positive and a negative statement of the issue. The former focuses on what will suffice to establish liability, the latter on what will suffice to *728 prevent liability. [FN218] Columns 1 and 2 of Chart II show the ease with which "requirements" translate into "defenses." If recklessness, for example, as to a circumstance element inculpates, then a merely negligent or faultless mistake as to that circumstance provides a defense.

CHART II: CULPABILITY REQUIREMENTS AND MISTAKE DEFENSES

1. Culpability 2. Will Be Negated by 3.In Language of 'Reasonable'

Requirement (i.e., actor will get and 'Unreasonable' Mistake,

defense for): Will Be Negated by (i.e.actor

will get defense for):

----------------- ------------------------- -------------------------------

'purposely' any mistake any mistake

'knowingly' any mistake (i.e., any mistake(i.e., reasonable or

reckless, negligent, or unreasonable)

faultless)

'recklessly' a negligent or faultless an unreasonable(in the sense of

mistake a 'negligent' [FN*]) or a

reasonable mistake

'negligently' a faultless mistake a reasonable mistake

absolute no mistake (not even no mistake(not even reasonable)

liability faultless)

FN* There is no defense, however, for an unreasonable, in the sense of a

'reckless,' mistake. It is this point at which the reasonable-unreasonable

terminology breaks down in its translation of modern culpability terms. This

is a particularly serious error given the fact that 'recklessly' is the norm,

the most common culpability required as to circumstance elements.

Some people may have to adjust their usual terminology to speak of reckless and negligent mistakes, but this language has the advantage of drawing upon the precise culpability definitions of most modern codes. An actor makes a "reckless mistake" if he is not substantially certain that an element exists, but is aware of a "substantial ... risk that the ... element exists." [FN219] An actor makes a "negligent mistake" if he is not, but should be, aware of a substantial risk that the element exists, and such unawareness is "a gross deviation *729 from the standard of care that a reasonable person would observe in the actor's situation." [FN220] An actor makes a "faultless mistake" if he is neither reckless nor negligent, as defined above, as to the existence of an element.

The Model Penal Code and most modern codes do not always take advantage of these clear terms. They frequently revert to the common law terminology of "reasonable and unreasonable" mistakes, as if these mistakes were unrelated to the culpability requirements provided in the offense definitions. [FN221] This failure to see the interchangeability of culpability requirements and mistake defenses is yet another example of the drafters' failure to understand the full implications of their element analysis scheme.

One can roughly translate the "reasonable" and "unreasonable" mistake language into the culpability requirement of the Code. But as column 3 of Chart II illustrates, the translation is uncertain at its most critical point: in determining the kind of mistake that provides a defense when recklessness, the most common culpability level, as to a circumstance is required. Recall that a negligent or faultless mistake negates (necessarily precludes the existence of) recklessness. While a "negligent mistake" may be said to be an "unreasonable mistake," all "unreasonable mistakes" are not "negligent mistakes." A mistake may also be unreasonable because it is reckless. Reckless mistakes, although unreasonable, will not negate recklessness. Thus, when offense definitions require recklessness as to circumstance elements, as they commonly do, the reasonable-unreasonable mistake language inadequately describes the mistakes that will provide a defense because of the imprecision of the term "unreasonable mistake." Reckless-negligent-faultless mistake language is necessary for a full and accurate description.

This weakness in the reasonable-unreasonable mistake language has a devastating effect on the interpretation of criminal statutes, as most codes, even modern codes, still use this language. Such delegation of legislative decisionmaking is a typical flaw of offense analysis; *730 the courts must decide whether a provision that allows an "unreasonable mistake" as a defense permits both reckless and negligent mistakes as a defense, or only negligent mistakes. The same problem arises when a provision describing a defense requires that an actor have a particular "belief," whether reasonable or unreasonable, in an exculpatory circumstance or result. Will an actor's belief that there is a substantial risk that the element exists-i.e., a reckless mistake-provide a defense? Not surprisingly, courts, and even code commentators, have interpreted the language both ways. [FN222] The preferable view is that only special circumstances justify admitting a reckless mistake as a defense. [FN223] For the same reasons that recklessness is considered *731 the norm for penal liability, [FN224] only negligent mistakes should normally provide a defense.

Analogous to the unnecessary and inadequate common law of mistake are court decisions discussing the defenses of accident and misfortune. [FN225] Indeed, several jurisdictions have codified a defense for an actor who commits an offense "through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence." [FN226] A number of other states have a similar defense provision applicable only to homicide. [FN227] While these provisions *732 have historical significance, [FN228] they now unnecessarily reiterate, in a defense format, the culpability requirements as to result elements of offenses. To say that a nonnegligent accident that causes a prohibited result provides a defense is simply to say that all offenses containing result elements require at least negligence as to causing the prohibited result. The culpability requirements of specific offense definitions and, in some cases, general provisions, already state such requirements of culpability as to result elements. [FN229]

Such accident or misfortune defenses are apparently designed to fill a gap created because the mistake defense does not clearly encompass all of the objective elements. "Mistake" and "ignorance," as commonly understood, describe the absence of a particular state of mind as to a circumstance element, but not as to a conduct or result element. One makes a "mistake" as to another's age or property, the obscene nature of a publication, or other circumstance elements, but one "accidentally" injures another, pollutes a stream, or interferes with a law enforcement officer. As the previous discussion demonstrates, the mistake defense provisions and the accident provisions are both unnecessary. An offense's culpability requirements alone are adequate to determine precisely the mistakes or accidents that will provide a defense. [FN230]

C. Element Analysis in Complicity

The most important source of criminal liability, excluding the offense definition, is the complicity liability provision, which determines when an actor will be held liable for the conduct of another. Model Penal Code section 2.06 provides two distinct forms of such *733 liability. [FN231] Liability under section 2.06(2)(a) applies where the actor's confederate is innocent or irresponsible; this may be termed "causing crime by an innocent." Liability under section 2.06(3)(a)(ii) represents the traditional form of accomplice liability.

Element analysis, that is, an attempt to determine all required elements for liability precisely, reveals that these provisions are hopelessly ambiguous in many respects and that they fail to answer important liability questions that arise in complicity situations. The objective elements for causing crime by an innocent are relatively straightforward. [FN232] The defendant need not satisfy the objective elements of the substantive offense; the point of the provision is to hold him legally accountable when he engages in conduct that causes an innocent or irresponsible person to satisfy the objective requirements. The only significant ambiguity here is that section 2.06(2)(a) requires that the defendant cause another to "engage in such conduct" and thus does not expressly require that the conduct that the defendant causes another to engage in be the conduct constituting the offense, that is, the conduct under the circumstances and causing the results proscribed by the offense definition. There is no doubt, however, that the drafters intended to require this. [FN233]

*734 The culpability requirements for causing crime by an innocent are somewhat more elusive. The provision states that the defendant must act "with the kind of culpability that is sufficient for the commission of the offense." [FN234] This requirement may well rely upon offense analysis and intend to refer to a single level of culpability, as the Code does elsewhere. [FN235] But the language also supports an element analysis interpretation. For example, under the quoted language, an actor's causing-crime-by-an-innocent liability for homicide can be said to depend upon whether he satisfies the culpability requirements of the homicide offense. Thus, if a doctor causes an operating room nurse to undertake a procedure that will result in the death of a fetus, the doctor would not be liable unless he is at least reckless as to the fetus' status as a "human being." [FN236] In addition, the degree of his liability would depend upon his culpability as to the result element of the substantive offense-causing the death. He would be liable for murder if he intends or knows that the procedure will cause the death, and for manslaughter if he is aware of a substantial and unjustified risk that the procedure will cause the death. [FN237]

In addition to the culpability requirements of the substantive offense, liability for causing crime by an innocent requires culpability as to causing the innocent's conduct. This is a distinct issue of fact. One may knowingly cause an innocent to engage in conduct that creates a risk of causing a prohibited result or one may engage in conduct that creates a risk of causing an innocent to engage in conduct that one knows will cause a prohibited result. For example, a surgeon may order a procedure that he knows creates an unjustifiable risk to the fetus' life. Alternatively, he may scribble an order, intending to create a risk that the order will be mistakenly interpreted as requiring *735 a procedure that he is certain will cause the death. [FN238]

Section 2.06(2)(a) does not clearly address the issue of culpability as to causing the innocent's conduct. One might construe the section to require that the actor cause the innocent's conduct with "the kind of culpability that is sufficient for the commission of the offense." Under this construction, if one interprets that phrase to refer to a single level of culpability for the offense, [FN239] then some central culpability requirement for the offense- e.g., purpose or knowledge for murder-might be taken to be the level of culpability required as to causing the innocent to act. But element analysis militates against a construction that would require such a speculative determination of some single culpability requirement for each offense. [FN240] An element analysis construction of this section may lead to the conclusion that because no culpability term is stated, the applicable general provision, section 2.02(3), requires recklessness as to this result-causing the conduct. [FN241] Judicial decisions rarely address this issue; where they do, they suggest, albeit indirectly, that recklessness in causing the innocent to act is sufficient. [FN242]

The final culpability issue is whether the actual perpetrator must satisfy the culpability requirements of the substantive offense in order for the defendant to be held liable for the offense. The answer seems *736 to be a clear "no." [FN243] Liability under section 2.06(2)(a) is imposed where the perpetrator is "innocent or irresponsible." [FN244] Thus, the defendant is liable even though the perpetrator does not satisfy the culpability requirements of the offense. [FN245]

As with causing crime by an innocent, accomplice liability does not require the defendant to satisfy the objective elements of the substantive offense. Section 2.06(3)(a)(ii), in contrast to section 2.06(2)(a), does not require the accomplice to "cause" the offense, but requires only that he "aid or agree or attempt to aid" the perpetrator in planning or committing the offense. [FN246]

Section 2.06(3)(a)(ii) is somewhat broader than the common law rule, which apparently requires actual assistance or encouragement. At common law, an unsuccessful attempt to aid, one that was unknown to the perpetrator and that neither encouraged nor assisted him, would not support accomplice liability. [FN247] The Model Penal Code's expansion of accomplice liability is consistent with its shift to a subjective view of criminality that bases an actor's liability primarily on his own conduct and culpability, rather than on the success or failure of the perpetrator. However, Section 2.06(3)(a)(ii) removes the need for the accomplice to make any contribution to the commission of the offense or to an attempt.

Most states have generally rejected the Code's extreme form of subjective criminality. They have, for example, refused to adopt the Code's suggestion that an attempt be punished to the same degree as the completed substantive offense. [FN248] Although the actor's subjective *737 culpability is the same when he attempts an offense as when he completes it, only by completion does he produce the actual harm or evil of the substantive offense. This completion, according to the conventional view, however irrational, adds to his personal culpability. To be consistent, these same states should-but frequently do not [FN249]-reject that portion of the Model Penal Code complicity provision that rests accomplice liability-i.e., liability for the full substantive offense-on an ineffective attempt or agreement to aid. Under the conventional view, only attempt or conspiracy liability would be appropriate in such a case. [FN250]

A similar issue arises in determining whether, in order to hold the accomplice liable under complicity liability provisions, the perpetrator must actually satisfy the objective elements of the offense definition-i.e., commit the offense. At common law, an accomplice's liability was seen as deriving from the perpetrator's. But again, the perpetrator's ultimate failure to commit the contemplated offense does not reduce the accomplice's subjective culpability. Not surprisingly then, nothing in Model Penal Code section 2.06(3)(a) expressly requires the perpetrator to have consummated the offense. Indeed, by permitting accomplice liability where the defendant only aids in *738 "planning or committing" the offense, [FN251] the provision seems to reject such a consummation requirement. However, Model Penal Code section 2.06(7) directly contradicts this interpretation:

An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted. [FN252]

In the tradition of subjective criminality, this provision generally rejects any defense for the accomplice that is premised upon a defense of the perpetrator. [FN253] Section 2.06(7) appears to retain a narrow exception, however, when it requires, in the language italicized, that the offense have been committed. This exception may be inconsistent with the Model Penal Code's own extreme imposition of the same punishment for an attempt as for the completed offense, [FN254] but it accurately reflects the consensus of modern codes. [FN255]

As with causing crime by an innocent, the culpability requirements for accomplice liability are somewhat more obscure than the objective requirements. Apparently, the culpability requirement that the accomplice aid the perpetrator "with the purpose of promoting or facilitating the commission of the offense" [FN256] accompanies the objective element of aiding in the commission of the offense. [FN257] Thus, the accomplice escapes liability if he is merely aware of a substantial risk or even is practically certain that he is aiding the perpetrator in the offense; accomplice liability under the Code requires that the assistance be his conscious object. [FN258]

*739 Whether purpose should be required or knowledge should suffice as the level of culpability as to aiding the perpetrator has been a matter of considerable dispute. [FN259] Although most states have followed the Model Penal Code's lead and required purpose, [FN260] many states have created an additional offense of criminal facilitation that imposes reduced punishment for knowing assistance of a substantive offense. [FN261]

The greatest flaw in the Model Penal Code provision, and those provisions modeled after it, is their failure to specify all of the culpability requirements of the substantive offense that the accomplice must satisfy. [FN262] While a separate subsection of section 2.06 explains *740 that the accomplice must satisfy the culpability as to the result element that is required by the substantive offense, [FN263] no analogous provision explains the culpability required for the circumstance elements of the substantive offense. For example, assume that the defendant purposely aids another to seduce a female. The offense of seduction frequently requires that the female be under 16 and that the actor be at least negligent as to that circumstance element (her being under 16). [FN264] To be held as an accomplice to the seduction, what culpability as to the circumstance of age must be shown?

One might argue that purposefulness as to the age of the female must be shown, on the theory that such is implicit in the requirement that the defendant aid the perpetrator "with the purpose of promoting or facilitating the commission of the offense." [FN265] But that language was probably not intended to apply the purposeful requirement beyond the objective conduct and result elements contained in "aiding." [FN266] For example, the existence of a special provision that *741 requires satisfaction of the culpability requirement as to a result element of the offense definition suggests that the purpose requirement does not apply to all of the elements of the substantive offense. Moreover, a requirement of purpose as to all circumstance elements would require a higher level of culpability as to circumstances for the accomplice than for the perpetrator. Such a requirement would bar accomplice liability in the hypothetical above unless the accomplice was aware of a high probability that the female was under 16; [FN267] it could well require that the accomplice's interest in aiding depend in part on the girl's youth. As a policy matter, no interest justifies such a standard for accomplice liability. [FN268]

*742 An alternative argument is that, because the accomplice provision specifies no culpability level with respect to circumstance elements of the substantive offense, section 2.02(3)-the general gap-filling provision-supplies a requirement of recklessness. Thus, in the seduction hypothetical above, the accomplice would have to be reckless, a slightly higher culpability level than the negligence required for the perpetrator. Recklessness, at least, is the norm for minimum culpability. In the seduction example, this approach is, therefore, somewhat more defensible as a policy matter. On the other hand, where the substantive offense requires purpose or knowledge as to a circumstance, [FN269] this view would permit accomplice liability upon proof of a lower culpability than that required by the substantive offense for the perpetrator. Such a result seems inappropriate.

A third approach, and the most appealing and logical of the three, would treat circumstance elements no differently than result elements and requires for both the same levels of culpability for accomplice liability as those required by the substantive offense definition. This third approach seems to be compelled by the fact that the degree of liability for many crimes varies with an actor's level of culpability as to a circumstance. [FN270] To impose accomplice liability using any other formula would ignore such statutorily demanded liability distinctions. [FN271] Unfortunately, although there is some case *743 law and statutory precedent, [FN272] no language in section 2.06 supports this view. [FN273] Nonetheless, given the difficulties inherent in each of the alternatives, this view is the only acceptable position for defining accomplice liability. [FN274]

As seems clear from the broad language of section 2.06(7) quoted earlier, [FN275] even if the perpetrator does not satisfy the culpability requirements of the offense definition, the accomplice may still be liable. [FN276] As noted previously, this provision reflects the core of subjective criminality, under which the defendant's liability for an offense is properly based on his own conduct of assistance and his own culpability, regardless of the perpetrator's culpability or lack thereof. [FN277]

*744 The following formulation would more clearly state the elements of liability for causing crime by an innocent and for complicity:

Liability for the Conduct of Another

(1) An actor is guilty of an offense if, acting with the culpability required for the commission of the offense, he:

(a) [recklessly/knowingly] causes an innocent or irresponsible person to commit the offense; or

(b) [knowingly] solicits another person to commit the offense; or

(2) It is no defense to accomplice liability under Subsection (1) of this section that the perpetrator of the offense does not satisfy the culpability requirements of the offense definition.

(3) If the intended perpetrator does not satisfy the objective elements of the offense, an actor who would have been liable as an accomplice to the offense under subsection (1) if the perpetrator had satisfied the objective elements is guilty of an attempt to commit the offense.

D. Element Analysis in Attempt

An element analysis of Model Penal Code section 5.01(1), [FN279] which defines attempt, reveals several important ambiguities and unanswered questions relevant to the section's requirements for attempt liability. An actor need not satisfy the objective elements of the substantive offense to be liable for attempt; [FN280] the defendant must engage *745 in some conduct, but the precise conduct that constitutes an attempt depends upon the defendant's apprehension of the situation-that is, upon "the circumstances as he believes them to be." The attempt provision is the most obvious example of the Code's commitment to subjective criminality: Even the objective elements of attempt liability are defined by reference to the defendant's subjective perspective. This reliance upon the defendant's perspective assures that even impossible attempts will be punished. [FN281]

Model Penal Code section 5.01(1) gives three alternative subsections under which attempt liability can be imposed. Subsection (a) contemplates the case where, from his own mistaken view, the defendant has satisfied the objective elements of the substantive offense; subsection (b), applicable to offenses with a result element, punishes a defendant who believes he has done everything he need do to cause the prohibited result; and subsection (c) imposes liability on a defendant who believes he has taken a substantial step towards commission of the offense. [FN282]

While these provisions aptly describe three common factual situations in which attempts arise, and while they draw distinctions that are important under common law doctrines, [FN283] they no longer represent conceptually significant distinctions. Only when one isolates and compares the objective elements for each subsection does it become apparent that the complex and confusing three-subsection structure of the Model Penal Code provision is unnecessary, at least as far as the objective elements are concerned. Specifically, because the objective elements of both subsections (a) and (b) by definition include the substantial step requirement of subsection (c), [FN284] the substantial *746 step requirement is itself enough to create liability for the situations contemplated by subsections (a) and (b). If the defendant believes he has completed the offense (subsection (a)) or has done everything he needed to do to cause the prohibited result (subsection (b)), he necessarily has intended to take a substantial step towards commission of the offense (subsection (c)). The revision of this provision proposed below employs only the substantial step requirement, which suffices alone to cover fully the other cases.

The primary culpability requirement of the Model Penal Code attempt provision is that the defendant have acted "with the kind of culpability otherwise required for commission of the crime." [FN285] This phrase is similar to the phrase that appears in the provision imposing liability for causing crime by an innocent. [FN286] As noted in the previous discussion of that provision, the phrase may contemplate offense analysis-that is, it may presume a single culpability level for each offense. But, as demonstrated above, the phrase is broad enough to encompass element analysis-that is, to require the particular culpability prescribed as to each of the objective elements by the substantive offense definition. The latter interpretation is particularly persuasive here since nowhere does the attempt provision adequately describe the culpability required with respect to the elements of the substantive offense. The provision does not explain, for example, whether liability for attempted seduction requires at least negligence as to whether the female is over 16, as is required by the substantive offense. [FN287]

In addition to the culpability requirements of the substantive offense, the Model Penal Code attempt provision expressly provides a purpose requirement. The general effect of this purpose requirement is to increase the level of culpability required by the substantive offense. Specifically, subsections (a) and (c) require that the actor "purposely engage[ ] in conduct which would constitute the crime" and "purposely do[ ] or omit[ ] to do anything which [is] a substantial step." [FN288] Subsection (b) does not have a similar requirement. It requires only that the actor "do or omit to do anything." [FN289] The *747 purpose requirement is consistent with often-heard claims that attempt is an "intentional offense" or a "specific intent offense." [FN290] A further question remains, however: As to which elements must the actor be purposeful? The answer to this question is ambiguous.

One interpretation of the "purposely" requirement is that it requires purposefulness only as to conduct. But in an ideal element analysis scheme, [FN291] the actor's culpability solely as to his conduct has little or no significance if he is normal, and gives way to general excuse defenses if he is abnormal. [FN292] According to another interpretation, the drafters intended that "purposely" apply to all elements, including all elements of the substantive offense. This is consistent with Model Penal Code section 2.02(4), which applies a prescribed culpability element to all elements of an offense. Under this interpretation, however, an actor would be liable for attempted seduction, for example, only if he were aware that the female was, or had a conscious desire that the female be, under 16. His clear, conscious disregard of a substantial risk that she was under 16 would be insufficient, [FN293] although such disregard would be sufficient had the seduction been completed. This interpretation would raise every culpability requirement to purpose from the level prescribed in each *748 substantive offense-most frequently recklessness. Attempted burglary, for example, would require, among other things, proof that the actor was aware of, or consciously desired, the unlicensed nature of his entry or the building's status as a dwelling. [FN294] The actor who consciously disregarded a substantial risk of these circumstances would not be liable, although such culpability would be sufficient if the burglary were completed. It is unlikely that the drafters intended this result. [FN295] Thus, the first interpretation, which limits the requirement of purpose to the attempt conduct where the requirement has little effect, seems preferable. Subsection 5.01(1)(b) does not have a similar purpose requirement. Knowing would therefore be read in by section 2.02(3) as the culpability required to do or omit to do. [FN296]

My own speculation is that the "purpose" requirement is a remnant of offense analysis that owes its continuing existence to the following rationale: People ought not to be liable for conduct that is only an apparent and not an actual attempt to commit an offense. To avoid imposing this unjust liability, the drafters define attempt as a purposeful or intentional offense-that is, the actor must desire or intend to commit the offense. Thus, the drafters believe that the "purpose" requirement servesas an important safeguard for individuals who have not caused the evil or consummated the harmful conduct constituting the substantive offense. [FN297] An element analysis of *749 the attempt provision reveals, however, that attempt liability will not be imposed unless the actor satisfies all of the culpability requirements as to the various objective elements of the substantive offense. These requirements adequately protect against improper imposition of attempt liability and thus provide the safeguards that the drafters endeavored to achieve with the purpose requirement. [FN298]

The Model Penal Code attempt provision contains a second passage that increases the culpability requirements of the substantive offense. Subsection 5.01(1)(b), which appears to govern attempt liability for offenses with a result element, [FN299] requires that the defendant act "with the purpose of causing or with the belief that his conduct will cause" the prohibited result. [FN300] In effect, this raises the culpability as to any result to at least knowledge. [FN301] Thus, attempt liability is barred for offenses normally requiring only recklessness or negligence, or imposing strict liability as to causing a result, unless the defendant was in fact knowing as to the result.

This limitation of culpability to at least knowledge implements the common law rule that one cannot be liable for an attempt to commit a "crime of recklessness." [FN302] Element analysis permits a *750 somewhat more precise definition of the scope of this exclusion from attempt liability. Driving with bald tires ("reckless driving") might be seen as a "crime of recklessness" (a classic offense analysis characterization) for which, then, attempt liability is barred. Yet reckless driving does not require recklessness as to any result element. The offense has no result element: The reckless driver need not in fact create a risk. The offense requires only conduct (driving) under a particular circumstance (with bald tires). Thus, if one were stopped in a car with bald tires just before pulling out of a driveway, liability for attempted reckless driving would not be barred by the Model Penal Code provision. Professor Glanville Williams persuasively argues for the propriety of attempt liability for such an offense. [FN303]

On the other hand, reckless homicide (manslaughter) is an offense that requires recklessness as to the result-causing death. If X shoots at pigeons on the roof of a railway car, thereby risking death to the passengers, he will be liable for reckless homicide if the risk comes to fruition and he hits and kills a passenger. If, under the same circumstances, he is stopped just before he pulls the trigger, he should not be liable for attempted reckless homicide. Accordingly, subsection 5.01(1)(b) bars such liability and requires that he at least be aware (or believe) that there is a substantial certainty that his conduct will cause the death. Such knowledge, of course, makes the crime attempted murder, not attempted reckless homicide.

The Code properly bars liability for attempted reckless homicide because reckless homicide takes into account not only the risk-creating activity, but also the resulting harm. In the absence of the resulting harm, the risk- creating activity is deemed less culpable and hence carries a lower degree of liability. Reckless endangerment, which punishes pure risk-taking, is commonly a misdemeanor, while reckless homicide is a second degree felony. [FN304] Since the degree of liability for attempt is generally proportional to the degree of liability for the substantive offense attempted, [FN305] liability for attempted reckless homicide would improperly increase the actor's liability, based upon the presence of a harm that did not in fact occur. Liability for attempted *751 reckless endangerment, that is, attempting to engage in risk-creating conduct, would be more appropriate in this case.

A definition of attempt reflecting element analysis and avoiding the unnecessary three-subsection approach of the Model Penal Code might be drafted as follows:

Definition of Attempt

(1) An actor is guilty of an attempt to commit an offense if, acting with the culpability required for commission of the offense, he engages [FN306] in conduct that would constitute the offense or a substantial step toward completion of the offense if the circumstances were as he believes or hopes them to be.

(2) When causing a particular result is an element of the offense, the actor, to be liable under Subsection (1), must have acted with the purpose of causing or with the belief that his conduct will cause such result. [FN307]

To avoid any possible questions, a subsection could be added to expressly provide that an actor who believes that he has completed the conduct constituting the offense, or believes that he has completed the last act needed to cause the criminal result, has satisfied the substantial step requirement of the definition. [FN308]

E. Element Analysis in Conspiracy

An element analysis of Model Penal Code section 5.03(1), [FN309] which defines conspiracy, reveals many ambiguities concerning issues central to the definition of the requirements for conspiracy liability. The objective elements present little difficulty. The defendant need not satisfy the objective elements of the offense, i.e., commit the offense. *752 Nor must any member of the conspiracy do so. Conspiracy can therefore be used to punish preparatory conduct. The required conduct consists of the agreement that one or more of the conspirators will commit the offense and an overt act by one of the conspirators in pursuance of the conspiracy. [FN310] The overt act element, which is sometimes said to be an evidentiary rather than a substantive element, [FN311] is not always required. [FN312]

The agreement requirement deserves special explanation. Traditional case law required that both members of a two-member conspiracy agree. An "agreement" was necessarily bilateral. That is, for the defendant to be convicted of conspiracy, his co-conspirator had to have agreed with him. [FN313] Under the Model Penal Code's subjective view of criminality, an actor's liability should be determined on the basis of his own view of things. Thus, the drafters expressly adopted a unilateral concept of agreement, requiring only that the defendant believe that he has entered into an agreement with the co- conspirator. [FN314] Perhaps to reflect this unilateral agreement concept, *753 section 5.03(1)(a) defines an actor's liability for conspiracy by requiring that he "agree with such other person or persons," rather than following the more traditional form of defining conspiracy, which would require that "two or more persons" agree. [FN315] Model Penal Code section 5.04 also furthers this unilateral view of conspiracy by eliminating a defense based on a co-conspirator's nonliability. [FN316]

The culpability requirements, again, present the greatest difficulty in the definition of conspiracy. Certain state of mind elements are implicit in the agreement requirement noted above. The term "agree" is commonly understood to include an "intent to agree." [FN317]

The requirement that the defendant "agree[ ] with [others] that ... one ... of them will engage in conduct which constitutes such crime" might be interpreted as requiring that the defendant have some culpable state of mind as to the substantive offense. The provision, however, does not specify whether the conspirator must agree as to just the bare conduct or must also agree as to the circumstances and result that make such conduct criminal. While the law rarely requires that an actor know that his conduct is criminal, [FN318] many of the purposes of criminal liability and punishment would seem at least to demand that an actor know or have strong cause to know of the circumstances or results that make the conduct criminal. [FN319] Of course, each of these circumstances and results may not require knowledge but rather simply the culpability level sufficient to establish liability for the substantive offense. The commentary to the Model Penal Code provision recognizes that requiring something less than knowledge of a circumstance may be appropriate where the substantive offense requires less than knowledge of the attendant circumstances. [FN320] As to precisely what is required, however, the commentary *754 admits that the "Draft does not attempt to solve the problem by explicit formulation ... but affords sufficient flexibility for satisfactory decision as such cases may arise. W e think it wise to leave the issue to interpretation." [FN321] But such an approach to defining criminal liability can be criticized for providing somewhat less than the legality principle demands. [FN322] The ambiguous language of the conspiracy provision coupled with the ambivalent language of the commentary indicates a need for clarification, which the interpretation recommended here can provide.

Model Penal Code section 5.03(1) requires that the defendant have entered the conspiracy (by "agree[ing] with [co-conspirators]") "with the purpose of promoting or facilitating" the commission of the offense that is the objective of the conspiracy. [FN323] Like the section's "agrees with others that ... one ... of them will engage in conduct which constitutes such crime" language, this requirement also states an independent element that may imply that some of the culpability requirements of the object offense are required as well. For example, to require that the conspirator have "the purpose of promoting ... commission of the offense " may mean that the conspirator must consciously desire the circumstances or the results that make the substantive offense criminal. But, as with attempt liability, requiring purpose as to all elements of the substantive offense seems *755 indefensible as a policy matter. Conspiracy to commit statutory rape would require that the conspirators be aware of or desire that the woman be under the prescribed age. [FN324] One who was aware of a substantial risk of the existence of that circumstance would have a defense. [FN325] In order to prevent this effect, this "purpose" requirement should apply only to the conduct element; only the level of culpability required by the object offense should be required as to circumstance and result elements. [FN326]

As was the case in attempt liability, it may well be appropriate to require a higher culpability as to a result element than is required by the object offense, at least if the object offense never occurs. In other words, no liability should attach for an unsuccessful conspiracy to commit those crimes that require only recklessness or less as to their result for the same reasons that no liability should attach for attempt to commit crimes that require only recklessness or less as to their result. [FN327] For example, when a conspiracy contemplates conduct that creates a risk of death but no death occurs, it is more appropriately treated as a conspiracy to commit reckless endangerment than as a conspiracy to commit reckless homicide. But when the proscribed result does occur-as it never does in the attempt context- conspiracy to commit reckless homicide is appropriate. [FN328] Mine owners who conspire to create a substantial and unjustified risk of death to miners in order to save money, should, if a miner actually dies, incur liability for conspiracy to commit reckless homicide. [FN329]

*756 The language of section 5.03(1) gives little guidance in determining the culpability requirements for conspiracy, especially with respect to the culpability required as to the object offense. [FN330] On these culpability issues, the conspiracy provision fails miserably to implement element analysis.

Under Model Penal Code provision 5.04(1)(b), the defendant's liability does not depend upon a co-conspirator's culpability. [FN331] This is contrary to the common law rule, which requires that at least one other conspirator be convictable, [FN332] but is consistent with the Code's subjective view of criminality.

The following formulation would resolve most of the issues raised by the preceding element analysis of the Model Penal Code conspiracy provision:

Definition of Conspiracy

(1) An actor is guilty of conspiracy [FN333] to commit a crime if, acting with the culpability required for commission of the object offense, *757 he agrees with another person or persons that one or more of them will engage in conduct that would, under the circumstances as he believes them to be, [FN334] constitute such crime or an attempt or solicitation to commit such crime.

(2) When causing a particular result is an element of the object offense and such result does not occur, the actor, to be liable for conspiracy under Subsection (1), must have the purpose or belief that the conduct contemplated by the agreement will cause such result.

SUMMARY AND CONCLUSION

The early common law's vague notion of "wickedness" gradually gave way to a requirement of a specific state of mind for criminal liability. The concept of mens rea inevitably meant a different state of mind for each offense-mentes reae. But even more profound was the subsequent Model Penal Code innovation that replaced this "offense analysis" approach with an approach recognizing that different objective elements of an offense could have different accompanying culpable state of mind requirements. This modern "element analysis" approach provides, for the first time, a statement of the minimum requirements for liability that is sufficiently clear and precise to satisfy the demands of the legality principle. Because element analysis comprehensively defines liability, it permits legislatures to properly reclaim from the courts the authority to define criminal offenses.

Despite these recent dramatic developments, most American courts have failed to take note of the modern criminal code shift to element analysis. Dulled by generations of offense analysis, courts ignore general code provisions that, together with offense definitions, define every objective and culpability element required for liability. They continue to rely upon their judge-made law of mistake and accident, properly rendered obsolete by modern culpability schemes, and continue to define unstated culpability requirements according to their own view of the public policy interests. The result is that in nearly every criminal case in the United States the statement of the *758 law defining the offense charged suffers a significant risk of inaccuracy.

While it does not explain or excuse the slow judicial re-education, the Model Penal Code's implementation of element analysis is admittedly haphazard and, in many respects, seriously flawed. So too are the criminal codes of most states, modeled as they are after the Code. Yet the virtues of element analysis make it worth salvaging; the feasibility of such a task is confirmed by the proposals made here for revised statutes governing the definition of offenses and revised formulations of complicity, attempt, and conspiracy, the major general provisions imposing liability.

[FNa]. B.S. 1970, Rensselaer Polytechnic Institute; J.D. 1973, University of California, Los Angeles; LL.M. 1974, Harvard; Dipl. Leg. St. 1976, Cambridge. Professor of Law, Rutgers University, Camden.

[FNaa]. A.B. 1971, Trinity College (Wash., D.C.); J.D. 1981, Rutgers University, Camden. Member of the Bar of New Jersey.

[FN1]. See generally Kadish, Codifiers of the Criminal Law: Wechsler's Predecessors, 78 COLUM. L. REV. 1098 (1978); Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097 (1952).

[FN2]. Kadish, supra note 1, at 1098.

[FN3]. See generally MODEL PENAL CODE § 1.02(1), (3) (Proposed Official Draft 1962) (Purposes; Principles of Construction); Hart, The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401 (1958).

[FN4]. See notes 96-97 infra.

[FN5]. See notes 97-98 infra.

[FN6]. Most modern sentencing systems rely upon the grade of the offense to determine the guideline or fixed sentence. See, e.g., Me. Rev. Stat. Ann. tit. 17-A, § 1252 (1983)

; N.J. Stat. Ann. § 2C:44-1(f) (West 1982). See generally S. Rep. No. 97-307, 97th Cong., 1st Sess. 955-77 (1981); P. O'Donnell, M. Churgin & D. Curtis, Toward a Just and Effective Sentencing System: Agenda for Legislative Reform (1977); The Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment (1976). Both the degree of harm and the level of culpability are relevant to the grade of an offense. See, e.g., Me. Rev. Stat. Ann. tit. 17-A, § § 207-208 (1983) (degree of assault increases with severity of injury caused); N.J. Stat. Ann. § 2C:2-2(e) (West 1982) (when grade or degree of offense depends upon the degree of culpability, the grade or degree shall be the lowest for which the determinative kind of culpability is established).

[FN7]. The phrases "mental state" and "culpable state of mind" are used throughout this article to refer to any one of the four levels of culpability- purpose, knowledge, recklessness, and negligence. While some might criticize this usage on the ground that negligence is not a state of mind, see, e.g., G. WILLIAMS, CRIMINAL LAW: THE GENERAL PART § 14, at 31 (2d ed. 1961), others have found the phrase a useful shorthand device. See, e.g., G. FLETCHER, RETHINKING CRIMINAL LAW § 6.8.1, at 508-10 (1978); W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW § 2, at 5 & n.2 (1972). More important, since negligence refers to a state of unawareness, see text accompanying notes 58-63 infra, to describe it as a state of mind seems appropriate.

This usage also comports with current statutory language. Hawaii, for example, employs the phrase "state of mind" this way. Hawaii Rev. Stat. § 702-204 (1976); accord Del. Code Ann. tit. 11, § 231 (1974 & Cum. Supp. 1982); Me. Rev. Stat. Ann. tit. 17-A, § § 34-35 (1983); see also Ala. Code § 13A-2-1(6) (1982) ("culpable mental state" means intentionally, knowingly, recklessly, or with criminal negligence); Ariz. Rev. Stat. Ann. § 13- 105(5) (Supp. 1982-1983); Colo. Rev. Stat. § 18-1-501(4) (1978); Conn. Gen. Stat. Ann. § 53a-5 (West 1972); Criminal Code of 1961, § 4-3, Ill. Ann. Stat. ch. 38, § 4-3 (Smith-Hurd 1972); Ky. Rev. Stat. § 501.010(1) (1975); Mo. Ann. Stat. § 562.016(1) (Vernon 1979); N.Y. Penal Law § 15.00(6) (McKinney 1975); Ohio Rev. Code Ann. § § 2901.21(A)(2), (C)(3) (Page 1982); Or. Rev. Stat. § 161.085(6) (1981); Tex. Penal Code Ann. § 6.02(d) (Vernon 1974); see also S. 1437, 95th Cong., 1st Sess. § 302 (1977).

[FN8]. See note 7 supra.

[FN9]. The term "objective element" refers to a conduct, result, or circumstance element of an offense. See text accompanying note 50 infra.

[FN10]. See Ala. Code § § 13A-2-2 to -2-4 (1982); Alaska Stat. § § 11.81.600-.610, .900(a) (Supp. 1982); Ariz. Rev. Stat. Ann. § § 13- 105(5), -202 (1978 & Supp. 1982-1983); Ark. Stat. Ann. § § 41-202 to - 204 (1977); Colo. Rev. Stat. § § 18-1-501(3), -501(5)-(6), - 501(8), -503 (1978); Conn. Gen. Stat. Ann. § § 53a-3(11)-(14), -5 (West 1972); Del. Code Ann. tit. 11, § § 231, 251-253 (1979 & Supp. 1982); Hawaii Rev. Stat. § § 704-204, -206 to -208, -212 to -213 (1976); Criminal Code of 1961, § § 4-3 to -7, -9, Ill. Ann. Stat. ch. 38, 4-3 to -7, -9 (Smith-Hurd 1972); Ky. Rev. Stat. § § 501.010(1), .020, .030(2)-. 050 (1975); Me. Rev. Stat. Ann. tit. 17-A, § § 34-35 (1982); Mo. Ann. Stat. § § 562.016, .021, .026 (Vernon 1979); Mont. Code Ann. § § 45-2-101(33), (37), (58), -103 to -104 (1981); N.H. Rev. Stat. Ann. § 626:2 (1974); N.J. Stat. Ann. § 2C:2-2 (West 1982); N.Y. Penal Law § § 15.00(6), .05-.15 (McKinney 1975); N.D. Cent. Code § 12.1-02-02 (1976); Ohio Rev. Code. Ann. § § 2901.21-.22 (Page 1982); Or. Rev. Stat. § § 161.085(6)-(10), .095(2), .105-.115 (1981); 18 Pa. Cons. Stat. Ann. § § 302, 305 (Purdon 1973); Tex. Penal Code Ann. § § 6.02-.03 (Vernon 1974); Utah Code Ann. § § 76-2-101 to -104 (1978); Wash. Rev. Code Ann. § 9A.08.010 (1977); see also S. 1437, 95th Cong., 1st Sess. § § 302-303 (1977). These culpability provisions evince a variety of levels of commitment to, or understanding of, "element analysis." See generally notes 103-82 infra and accompanying text. In addition to the jurisdictions that have adopted an element analysis approach to criminal liability, nine others have emulated the Model Penal Code by defining culpability terms in their codes, thereby taking a step toward element analysis. See note 49 infra.

[FN11]. In Mullaney v. Wilbur, 421 U.S. 684 (1974), the Supreme Court held that Maine's practice of requiring the defendant to carry the burden of persuasion for the heat of passion defense, which reduces liability from murder to manslaughter, violated the due process clause. Id. at 704.

[FN12]. In Patterson v. New York, 432 U.S. 197 (1977)

, the Supreme Court upheld New York's practice of requiring the defendant to establish extreme emotional disturbance by a preponderance of the evidence. In both Mullaney and Patterson, the court relied on In re Winship, 397 U.S. 358, 364 (1970), which required proof beyond a reasonable doubt of each fact necessary to establish a crime. See 421 U.S. at 697-701; 432 U.S. at 208-11; see also note 14 infra.

[FN13]. In Jackson v. Virginia, 443 U.S. 307 (1979), the defendant challenged the sufficiency of the evidence supporting his state court conviction. The Supreme Court found that Jackson's challenge raised a federal constitutional claim cognizable in a federal habeas corpus proceeding. Id. at 321; see note 14 infra.

[FN14]. The Patterson court distinguished the Maine and New York practices, see notes 11-12 supra, stating that the former required the defendant to disprove a "part of the definition" of the offense ("absence of provocation"), 432 U.S. at 197, 215-16, while the latter did not require proof of a fact that "serve[s] to negative any facts of the crime." Id. at 206-07. The Court went on to hold that "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense." Id. at 210 (emphasis added). The requirement of proof of each element beyond a reasonable doubt is often codified. See note 213 infra.

The Jackson court defined the standard of review for a claim that the evidence is insufficient to support a conviction: "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319 (emphasis omitted). This standard requires the prosecution to introduce the specified quantum of evidence or risk reversal; it imposes, in effect, a burden of production on the prosecution for each element of the offense.

These constitutional mandates seem hollow where offense analysis prevails. For example, an Illinois court recently held that a trial judge need not instruct the jury on the elements of theft, where burglary with intent to commit theft is charged. People v. Johnson, 98 Ill. App. 3d 228, 424 N.E.2d 610 (1981). Many of the elements of theft are elements of burglary in such a case; element analysis reveals the necessity for and permits instructions on all relevant elements.

[FN15]. Sayre, The Present Signification of Mens Rea in the Criminal Law, in HARVARD LEGAL ESSAYS 399, 411-12 (1934).

[FN16]. Remington & Helstad, The Mental Element in Crime-A Legislative Problem, 1952 WIS. L. REV. 644, 648-49.

[FN17]. Morissette v. United States, 342 U.S. 246, 251 (1952).

[FN18]. 4 W. BLACKSTONE, COMMENTARIES *21.

[FN19]. 2 L.R.-Cr. Cas. Res. 154 (1875).

[FN20]. Id. at 173-76 (1875) (because the act was wrong, the absence of mens rea did not prohibit the imposition of the criminal sanction; the defendant took the young woman at the risk of her turning out to be under sixteen). In similar fashion, this broad conception of mens rea as moral blameworthiness gave rise to doctrines that imposed liability for unintended consequences of unlawful acts. See Remington & Helstad, supra note 16, at 655- 58 (discussing moral blameworthiness and the doctrines of felony murder and misdemeanor manslaughter). Hall, too, attributes the evolution and decline of felony murder and misdemeanor manslaughter to refinements in the concept of mens rea. J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 129-30 (2d ed. 1960).

[FN21]. For example, Hall, a vigorous critic, takes issue with Sayre's historical analysis, particularly Sayre's emphasis on the significance of motive in early law. See J. HALL, supra note 20, at 77-83. In addition, Hall criticizes Sayre, as well as his predecessors and followers, for "their failure to appreciate the significance of the general characteristics of the many specific criminal intents." Id. at 103 (footnote omitted). As Hall notes, Sayre was not the first to dispute the conclusion that mens rea defies general description. See Turner, The Mental Element in Crime at Common Law, 6 CAMBRIDGE L.J. 31, 38 (1936) (objecting to Stephen's emphasis of the dissimilarity of the mens rea for various offenses, see note 22 infra, and pointing to common elements).

In contrast to Sayre, Hall stresses the "common, 'essential' characteristic [of mens rea] expressed in the voluntary doing of a morally wrong act." J. HALL, supra note 20, at 103. Moreover, Sayre and the authors who share his view, see note 22 infra, do not explicitly define mens rea in normative terms, as does Hall. Many have criticized the absence of moral concerns in Sayre's approach. See G. FLETCHER, supra note 7, § 6.2, at 399; J. HALL, supra note 20, at 71, 103; Turner, supra note 21, at 38. But, in fact, Sayre does not attempt to equate mens rea with moral blameworthiness. In Sayre, as in this article, mens rea describes only a subjective state of mind required by the definition of an offense. One who has the necessary mens rea may nonetheless be blameless because of a general defense, such as insanity, self-defense, or duress, that precludes moral culpability. By adopting a narrow concept of mens rea, which refers only to elements of an offense definition, one does not necessarily reject a normative view of criminal liability.

[FN22]. Sayre, supra note 15, at 412. Stephen also came to the conclusion that mens rea did not exist apart from the definition of particular crimes. 2 J.F. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 94-95 (1883). Sayre's description of mens rea is echoed today. Williams writes: "[Mens rea] refers to the mental element necessary for the particular crime, and this mental element may be either intention to do the immediate act or bring about the consequence or (in some crimes) recklessness as to such act or consequence." G. WILLIAMS, supra note 7, § 14, at 31; see also J. HALL, supra note 20, at 71- 72 (discussing various scholars and members of the judiciary who view mens rea as the intention to do a criminal act).

[FN23]. Sayre, supra note 15, at 412 (italics omitted).

[FN24]. Id.; see, e.g., G. WILLIAMS, supra note 7, § 14, at 31 n.3; 2 J.F. STEPHEN, supra note 22, at 94-95; cf. J. HALL, supra note 20, at 71, 103 (concluding that the term "mens rea" refers to actual distinctive states of mind as they relate to the actual prohibited harm and that different crimes involve different specific criminal intents).

[FN25]. Sayre, supra note 15, at 411 (italics omitted).

[FN26]. Id. at 404 (italics omitted); see Sayre, Mens Rea, 45 HARV. L. REV. 974, 1021 (1932).

[FN27]. Sayre, supra note 15, at 402 (italics omitted).

[FN28]. Id. at 404 (italics omitted) (emphasis added). As another writer explains, "[e]ach crime ... has its distinctive mens rea, e.g., intending to have forced intercourse, intending to break and enter a dwelling-house and to commit a crime there, intending to inflict a battery, and so on. It is evident that there must be as many mentes reae as there are crimes." J. HALL, supra note 20, at 142.

[FN29]. See notes 52-82 infra and accompanying text.

[FN30]. MODEL PENAL CODE § 2.02(1) (Proposed Official Draft 1962) (emphasis added); accord, e.g., N.J. Stat. Ann. § 2C:2-2(a) (West 1982); N.Y. Penal Law § 15.10 (McKinney 1975); 18 Pa. Cons. Stat. Ann. § 302(a) (Purdon 1973).

[FN31]. See, e.g., MODEL PENAL CODE § 220.2(3)(a) (1980) (a person who knowingly or recklessly fails to take reasonable measures to prevent a catastrophe commits a misdemeanor if he knows he has a duty to take such measures); see also Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 COLUM. L. REV. 1425, 1436-37 (1968) ("the required mode of culpability may not only vary from crime to crime but also from one to another element of the same offense"). Indeed, the culpability terms are defined with respect to the objective elements of the offense. See MODEL PENAL CODE § 2.02(2) (Proposed Official Draft 1962). For a discussion of the culpability terms, see notes 52-82 infra and accompanying text.

[FN32]. See Cal. Penal Code § 20 (West 1970) (emphasis added); cf. Kan. Stat. Ann. § 21-3201(1) (1974) ("[C]riminal intent is an essential element of every crime ... [and] may be established by proof that the conduct ... was willful or wanton."); La. Rev. Stat. Ann. § 14:11 (West 1974) ("definitions of some crimes require a specific criminal intent," others "consist merely of criminal negligence"). Similarly, other statutes define culpability terms that are applicable when "criminal intent is an element of a crime." See Minn. Stat. Ann. § 609.02 (Subd. 9)(1) (West 1964); accord Wis. Stat. Ann. § 939.23(1) (West 1982). The implication is that the "criminal intent" is applicable on an offense-by-offense rather than an element-by-element basis. Indiana's new culpability provisions define the culpability terms only with respect to conduct and refer to the "kind of culpability ... required for commission of an offense." Ind. Code Ann. § 35-41-2-2(a) (West 1978); see id. § 35-41-2-2(b)-(d).

[FN33]. See, e.g., Colo. Rev. Stat. § 18-1-501(5) (1978) (all offenses requiring intentional culpability are "specific intent offenses"); La. Rev. Stat. Ann. § 14:10 (West 1974) ("criminal intent may be specific or general"). Several jurisdictions classify crimes as specific or general intent offenses for the purpose of determining whether to admit evidence of mental disease or defect to negate the requisite mental state. In these jurisdictions, such evidence generally is admissible to negate a specific intent but not a general intent. See, e.g., People v. Wetmore, 22 Cal. 2d 318, 583 P.2d 1308, 149 Cal. Rptr. 265 (1978); Bimbow v. State, 161 Ind. App. 338, 315 N.E.2d 738 (1974); State v. Jacoby, 260 N.W.2d 828 (Iowa 1977); State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980); Colo. Rev. Stat. § 18-1-803 (1978); see also Cal. Penal Code § 28(a) (West Supp. 1983) (evidence of mental disease or defect admissible on the issue of whether the defendant actually formed specific intent or premeditated or deliberated where a specific intent offense is charged). Similarly, the distinction is determinative of the admissibility of intoxication evidence in several jurisdictions. See, e.g., Ashbaugh v. State, 272 Ind. 557, 400 N.E.2d 767 (1980); Teves v. State, 33 Md. App. 195, 364 A.2d 593 (Md. Ct. Spec. App. 1976); State v. Lindahl, 309 N.W.2d 763 (Minn. 1981); State v. Kjeldahl, 278 N.W.2d 58 (Minn. 1979); Miller v. State, 567 P.2d 105 (Okla. Crim. App. 1977); State v. Reposa, 99 R.I. 147, 206 A.2d 213 (1965).

[FN34]. MODEL PENAL CODE § § 3.02(2), 3.09(2) (Proposed Official Draft 1962) (lesser evils defense and other justification defenses unavailable where actor was reckless or negligent, and recklessness or negligence suffices to establish culpability for the offense charged); accord, e.g., Me. Rev. Stat. Ann. tit. 17-A, § § 101(3), 103(2) (1983); see also Me. Rev. Stat. Ann. tit. 17-A, § 103-A(3)(c) (1983); Model Penal Code § 2.09(2) (Proposed Official Draft 1962) (duress defense unavailable where actor negligently placed himself in the situation giving rise to coercion and "negligence suffices to establish culpability"). For a discussion of these Model Penal Code provisions, see notes 170-82 infra and accompanying text. Another example of offense analysis is found in provisions that mandate that a specified culpability term be applied to all offense elements, unless a contrary legislative purpose is evident. See, e.g., N.J. Stat. Ann. § 2C:2-2(c)(1) (West 1982); Model Penal Code § 2.02(4) (Proposed Official Draft 1962); see also notes 161-82 infra and accompanying text.

[FN35]. See, e.g., Regina v. Faulkner, 11 Ir. R.-C.L. 8, 12 (Cr. Cas. Res. 1877) (rejecting proposition that a person who, while attempting to conceal a crime, accidentally causes harm is automatically culpable as to causing that harm and requiring either intention to cause or reckless disregard for causing the specific harm). For a discussion of the wickedness standard, see note 20 supra and accompanying text.

[FN36]. See Sayre, supra note 26, at 1001 (the "present hard and fast technical requisite of an intent to commit a felony within the house invaded" developed during the judicial process that led to the distinction between felony and tort).

[FN37]. In Regina v. Prince, 2 L.R.-Cr. Cas. Res. 154 (1875), the confusion created by the offense analysis approach is evident. In dicta, Bramwell reasoned that: "[I]n the case of burglary, could a person charged claim an acquittal on the ground that he believed it was past six [a.m.] when he entered, or in a housebreaking, that he did not know the place broken into was a house?" Id. at 176. Bramwell's reasoning evinces a common judicial solution to the problem presented when a stated culpability term seems to be improper for each element of the offense-imposition of strict liability as to all elements other than the one to which the stated term immediately applies. See note 51 infra. In addition, offense analysis often obscured the imposition of such strict liability since the culpability requirement that was present was enough to classify the offense as one requiring mens rea. Regina v. Prince, 2 L.R.-Cr. Cas. Res. at 173-76. For a discussion of the distortion inherent in another common judicial solution, that of applying the single specified culpability term to each offense element, see notes 161-82 infra and accompanying text.

[FN38]. See, e.g., MODEL PENAL CODE § § 210.1(1), 210.2(1)(a), 210.3(1)(a) (1980) (defining criminal homicide, murder, and manslaughter respectively).

[FN39]. For example, the Pennsylvania Abortion Control Act, 35 PA. CONS. STAT. ANN. § 6605 (Purdon 1977), which was declared void for vagueness in Colautti v. Franklin, 439 U.S. 379 (1979), required the physician to determine, prior to performing an abortion, whether a fetus was or might be viable. Id. at 380 n.1. The statute subjected a physician who failed to do so to "such ... criminal liability as would pertain to him had the fetus been a child who was intended to be born and not aborted." Id. at 381 n.1. Thus, the Supreme Court construed the term "human being" in the Pennsylvania homicide statute to include a viable fetus. Id. at 394; cf. State v. Amaro, --- R.I. ---, 448 A.2d 1257 (1982) (fetus is not a "person" for purposes of Rhode Island's vehicular homicide statute).

In Pennsylvania, criminal homicide is defined as "intentionally, knowingly, recklessly or negligently caus[ing] the death of another human being." 18 PA. CONS. STAT. ANN. § 2501 (Purdon 1973). General code provisions require culpability as to each material element of a serious code offense. See id. § § 302(a), 305. Thus, if a physician performing an abortion were charged with homicide, the general culpability provisions of the Pennsylvania code would require culpability not only as to causing the death but also at least recklessness as to the fetus' viability. See id. § 302(c)-(d). For a discussion of the ambiguity created by a similar tension between Model Penal Code § § 2.02(3)-(4), see notes 170-82 infra and accompanying text. In Colautti, however, the Supreme Court ignored Pennsylvania's general provisions requiring culpability as to each offense element and concluded that while culpability was required as to causing the fetus' death under Pennsylvania law, culpability was not required as to the fetus' status as a "human being," based upon its viability. Colautti, 439 U.S. at 394-95. The Colautti decision illustrates the significance of culpability as to each element of an offense and the importance of clearly articulating the requisite culpability as to each element.

The murderer's guilt in a variety of cases may turn on the recognition that homicide requires culpability not only as to the element of "causing death" but also as to the element "of a human being." For example, if a hunter aims and fires at a creature moving behind cover, he, no doubt, intends to cause death. If, in fact, he kills a fellow hunter, his culpability depends on his awareness of the creature's status as a human being.

Separate culpability as to the victim's status is evident in the Indiana feticide offense, which provides that: "A person who knowingly or intentionally terminates a human pregnancy with an intention other than to ... remove a dead fetus commits feticide ...." Ind. Code Ann. § 35-42-1-6 (West Supp. 1982-1983) (emphasis added); cf. Ga. Code Ann. § 26-1105 (Supp. 1982) (a person commits feticide if he "willfully kills an unborn child so far developed as to be ordinarily called 'quick"').

[FN40]. For a discussion of the interrelationship between mistake and accident defenses and the culpability requirements of the offense definition under offense analysis, see note 210 infra and accompanying text.

[FN41]. In Regina v. Prince, 2 L.R.-Cr. Cas. Res. 154, 173-76 (1875), for example, the court apparently relied on the policy against taking a young woman from her father's care and concluded that the legislature intended to impose punishment regardless of the defendant's culpability as to the victim's age.

[FN42]. Packer, The Model Penal Code and Beyond, 63 COLUM. L. REV. 594, 601 (1963). Before the appearance of the Model Penal Code, Justice Jackson described the mental element in crime as "requisite but elusive," see Morissette v. United States, 342 U.S. 246, 252 (1952), and many scholars had pointed to the need for reform. See generally Perkins, A Rationale of Mens Rea, 52 HARV. L. REV. 905 (1939); Remington & Helstad, supra note 16. Where the reform movement lags, the plea for and attempt at clarification continues. See Stuart, The Need to Codify Clear, Realistic and Honest Measures of Mens Rea and Negligence, 15 CRIM. L.Q. 160 (1973). The Model Penal Code drafters suggest that one of their goals is to bring rationality to the resolution of mens rea issues. MODEL PENAL CODE § 2.02 comment 6, at 124 (Tent. Draft No. 4, 1955). This objective is evident in the structural composition of the Code. See notes 43-94 infra and accompanying text.

[FN43]. See Robinson, A Brief History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 815-21 (1980) (describing the advances made by the drafters of the Model Penal Code and outlining the distinctions among the Code's culpability terms). The praise for refined culpability schemes, however, is not universal. See P. BRETT, AN INQUIRY INTO CRIMINAL GUILT 70-85 (1963) (arguing that culpability should be a simple judgment of moral blameworthiness made by a jury, not the result of codification efforts); Binavince, The Structure and Theory of the German Penal Code, 24 AM. J. COMP. L. 594, 600 (1976) (complimenting the drafters of the German Penal Code for abandoning the effort to define culpability terms because such definition curtails the dynamic quality of the law).

[FN44]. The culpability provision, § 2.02, was presented to the American Law Institute in 1955. MODEL PENAL CODE § 2.02 note on status of section (Proposed Official Draft 1962).

[FN45]. Only 16 American jurisdictions have failed to enact penal codes reflecting the influence of the Model Penal Code culpability refinements. See CAL. PENAL CODE (West 1970 & Supp. 1983); D.C. CODE ANN. tit. 22 (1981 & Supp. 1982); Fla. Stat. Ann. § § 775.01-895.08 (West 1976 & Supp. 1983); Ga. Code Ann. tit. 16 (1982); Md. Ann. Code art. 27 (1982 & Supp. 1982); Mass. Gen. Laws Ann. chs. 263-274 (West 1980 & Supp. 1983); Mich. Comp. Laws Ann. § § 750.1 to 759.END (West. 1968, Supp. 1983-1984 & Supp. Pamph. 1983-1984); Miss. Code Ann. tit. 97 (1972 & Supp. 1981); N.M. Stat. Ann. ch. 30 (1978 & Supp. 1981); N.C. Gen. Stat. ch. 14 (1981 & Supp. 1981); R.I. Gen. Laws tit. 11 (1981 & Supp. 1982); S.C. Code Ann. tit. 16 (Law. Co-op. 1976 & Supp. 1981); Tenn. Code Ann. tit. 39 (1982); Vt. Stat. Ann. tit. 13 (1974 & Supp. 1982); Va. Code tit. 18.2 (1982 & Supp. 1983); W. Va. Code ch. 61 (1977 & Supp. 1983). But see Cal. Penal Code § 188 (West Supp. 1983) (defining malice). Only three of these jurisdictions have enacted codes since the advent of the Model Penal Codes: Florida, Georgia and Virginia. See 58 Appendix, 58 A.L.I. Proc. 517 (1981). For the status of criminal law reform in the remainder of these jurisdictions, see id. Some courts in these jurisdictions nonetheless seem to be influenced by the Model Penal Code definitions. See, e.g., People v. Woods, 416 Mich. 581, 331 N.W.2d 707 (1982) (holding that the term "malice" has taken on so many different meanings that it should not be employed in jury instructions and substituting instructions that require the jury to determine defendant's culpability as to causing death); see also notes 69, 78 infra.

In two other jurisdictions the impact of the Model Penal Code culpability provisions is so minimal that they arguably should be included in the group showing no influence. Iowa and Nebraska define only "recklessly," and provide no rules of construction. Iowa Code Ann. § 702.16 (West 1979 & Supp. 1982- 1983) (defining "recklessly"); Neb. Rev. Stat. § 28-109(19) (1979 & Supp. 1982) (defining "recklessly"). For jurisdictions codifying defined culpability terms, see note 49 infra. For jurisdictions adopting provisions similar to Model Penal Code § 2.02(3) (Proposed Official Draft 1962), see note 84 infra.

[FN46]. Robinson, supra note 43, at 816.

[FN47]. Kadish, supra note 1, at 1143 (crediting the drafters of the Model Penal Code with dispersing "the obscurantist cloud that hung for so long on the central mens rea issues in criminal law").

[FN48]. "The National Commission's [on Reform of the Federal Criminal Law] consultant ... identified 78 different terms used in present law." S. REP. NO. 605, Part 1, 95th Cong., 1st Sess. 55 (1977); see Feinberg, Toward a New Approach to Proving Culpability: Mens Rea and the Proposed Federal Criminal Code, 18 AM. CRIM. L. REV. 123, 125 (1980). Examples of a confusing variety of culpability terms abound. See, e.g., N.J. STAT. ANN. § 2C:11-5 (West 1981) ("criminal homicide constitutes death by auto when it is caused by driving a vehicle carelessly and heedlessly, in a willful or wanton disregard" of the rights or safety of others) (emphasis added) (changed to recklessness standard by 1981 N.J. Sess. Law Serv. 312 (West); current version at N.J. STAT. ANN. § 2C:11-5 (West 1982)); see also Mass. Gen. Laws Ann. ch. 266, § 100 (West Supp. 1982-1983) ("willfully, intentionally and without right or wantonly and without cause, detains" a library book). Where reform lags or is incomplete, not only are a variety of terms used, but the terms are generally undefined and courts commonly supply inconsistent definitions. For example, under current federal case law "willful" has seven different definitions, and "knowingly" has five. See S. Rep. No. 605, supra, at 55-56; Feinberg, supra, at 125-29.

[FN49]. The drafters explain: "[O]nly four concepts are needed to prescribe the minimal requirements and lay the basis for distinctions that may usefully be drawn." Wechsler, supra note 31, at 1436; see MODEL PENAL CODE § 2.02 comment 2, at 124 (Tent. Draft No. 4, 1955). Drafters of state codes apparently agree. See, e.g., Hawaii Rev. Stat. § 702-204 commentary (1976) ("It is safe to say that, for the purpose of the penal law, there are no subtleties of meaning in the language used in the prior law which cannot be achieved in a clear, lucid fashion by limiting the relevant states of mind to intent, knowledge, recklessness, and negligence"). With the exception of the jurisdictions listed at note 45 supra, American jurisdictions have attempted to reduce and define culpability terms. The jurisdictions listed below have adopted a limited number of defined culpability terms. Most have identified four terms and adopted the distinctions, if not the labels, proposed in Model Penal Code § 2.02 (Proposed Official Draft 1962). For a discussion of the distinctions, see notes 52-82 infra and accompanying text. The parentheticals below identify those jurisdictions that alter the Model Penal Code distinctions. Ala. Code § 13A-2-2 (1982); Alaska Stat. § 11-81.900(a)(1)- (4) (Supp. 1982); Ariz. Rev. Stat. Ann. § 13-203 (1978); Ark. Stat. Ann. § 41-203(1)-(4) (1977); Colo. Rev. Stat. § 18-1-501 (1978); Conn. Gen. Stat. Ann. § 53a-3(11)-(14) (West 1972); Del. Code Ann. tit. 11, § 231 (1979 & Supp. 1981) (Model Penal Code distinctions plus ordinary negligence); Hawaii Rev. Stat. § 702-206 (1976); Idaho Code § 18-101(1)-(5) (1979) ( "wilfully," "neglect," "corruptly," "malice," and "knowingly"); Criminal Code of 1961, § § 4-4 to -7, Ill. Ann. Stat. ch. 38, § § 4-4 to -7 (Smith- Hurd 1972); Ind. Code Ann. § 35-41-2-2(a)-(c) (West 1978) ("intentionally," "knowingly," and "recklessly"); Kan. Stat. Ann. § 21-3201 (1981) ("willful" and "wanton"); Ky. Rev. Stat. § 501.020(1)-(4) (1975) (using labels of "intentionally," "knowingly," "wantonly" (corresponds to recklessly), and "recklessly" (corresponds to negligently), but the distinctions are those of the Model Penal Code); La. Rev. Stat. Ann. § § 14:10-12 (West 1974) ("specific intent," "general intent," and "criminal negligence"); Me. Rev. Stat. Ann. tit. 17-A, § 35 (1983); Minn. Stat. Ann. § 609.02 (subd. 9) (West 1964) ("know" and "intentionally"); Mo. Ann. Stat. § 562.016 (Vernon 1979); Mont. Code Ann. § 45-2-101(33), (37), (58) (1981) (only three culpability distinctions; code labels what is usually classified as recklessness-conscious disregard of a risk-as "negligence" and does not impose criminal liability for what is usually considered "negligence"-culpable inadvertence); Nev. Rev. Stat. § 193.010(12)-(14) (1973) ("knowingly," "maliciously," and "negligently"); N.H. Rev. Stat. Ann. § 626.2(II) (1974); N.J. Stat. Ann. § 2C:2-2(b) (West 1982); N.Y. Penal Law § 15.05(1)-(4) (McKinney 1975); N.D. Cent. Code § 12.1-02-02 (1976) (also retaining "willfully"); Ohio Rev. Code Ann. § 2901.22(A)-(D) (Page 1982); Or. Rev. Stat. § 161.085(6)- (10) (1981); 18 Pa. Cons. Stat. Ann. § 302(b) (Purdon 1973); S.D. Codified Laws Ann. § 22-1-2(1)(a)-(e) (1979) ("malice," "intent," "knowledge," "recklessness," and "neglect"); Tex. Penal Code Ann. § 6.03 (Vernon 1974); Utah Code Ann. § 76-2-103(1)-(4) (1978); Wash. Rev. Code Ann. § 9A.08.010(1) (1977) (in addition to the Model Penal Code distinctions, Washington retains "malice" and "willfullness"); id. § § 9A.04.110(12), 9A.08.010(4) ("willfulness" is defined as satisfied by "knowing"); Wis. Stat. Ann. § 939.23 (West 1982) ("intentionally" and "knowingly"); Wyo. Stat. § 6-1-104(iii), (ix) (1983) ("recklessly" and "criminal negligence"); see also S. 1437, 95th Cong., 1st Sess. § 302 (1977).

[FN50]. See MODEL PENAL CODE § 2.02(2) (Proposed Official Draft 1962); see notes 65-80 infra and accompanying text.

[FN51]. See MODEL PENAL CODE § 2.02(3)-(4) (Proposed Official Draft 1962). Prior to the Model Penal Code, the confusion of various undefined culpability terms was complicated by the necessity of determining whether the specified culpability elements applied to one or more of the objective elements. Indeed, this is the issue that brought Morissette v. United States, 342 U.S. 246 (1952), before the Supreme Court. While Morissette had knowingly taken shell casings from government property, he had believed that the property was abandoned. See id. at 248-49. Although the offense prohibited knowing conversion of government property, see id. at 248, the trial court had imposed strict liability as to the circumstance element-government property-and required only that the taking be knowing. See id. at 249; see also State v. Hofford, 152 N.J. Super. 283, 377 A.2d 962 (Super. Ct. Law Div. 1977) (discussing similar issue raised by statute forbidding a "willful act of commission whereby unnecessary pain and suffering is caused to be inflicted on a child").

[FN52]. The Code defines culpable states of mind with respect to conduct and circumstances, at least where such definitions are meaningful. Chart I sets out the Code's definitions of culpable states of mind. See text accompanying notes 65-80 infra. Arguably, for example, to define recklessness or negligence with respect to conduct is not meaningful. Few jurisdictions do so. See note 152 infra; see also MODEL PENAL CODE § 2.02(2)(c)-(d) (Proposed Official Draft 1962) (apparently omitting these definitions). For a discussion of the omission, see notes 144-54 infra and accompanying text. The meaningfulness of a concept of acting intentionally with respect to circumstances has similarly been called into question. See S. REP. NO. 95-605, Part 1, 95th Cong., 1st Sess. 58 n.13 (1977). Several jurisdictions do not define "purpose" with respect to circumstance elements. See note 66 infra.

[FN53]. MODEL PENAL CODE § 2.02(1)(a)(i) (Proposed Official Draft 1962).

[FN54]. Id. § 2.02(2)(b)(ii). Model Penal Code § 2.02(7) further defines "practically certain" as "aware of a high probability." Id. § 2.02(7). This elaborated definition, however, applies only to the definition of "knowingly" as to a circumstance. See MODEL PENAL CODE § 2.02 comment 9, at 129-30 (Tent. Draft No. 4, 1955) (notice of a substantial probability should suffice to establish knowledge of an existing circumstance; this is needed to deal with the problem of the actor who is aware of a high probability but who chooses not to confirm his belief-the British label this problem "willful blindness").

[FN55]. Others have questioned the validity of a culpability distinction between "purposeful" and "knowing." See, e.g., G. WILLIAMS, supra note 7, § 18; Williams, The Mental Element in Crime, 27 REV. JUR. U.P.R. 193, 196-97 (1957-58).

[FN56]. MODEL PENAL CODE § 2.02(2)(c) (Proposed Official Draft 1962).

[FN57]. Compare id. § 2.02(2)(b) with id. § 2.02(2)(c). The Model Penal Code's drafters are careful to note that the determination of whether risk is "substantial" depends not only upon the particular likelihood of the result occurring, but also upon the situation at hand, including the countervailing interests. See MODEL PENAL CODE § 2.02 comment 3, at 125 (Tent. Draft No. 4, 1955). Indeed, they use the phrase "substantial and unjustifiable risk." MODEL PENAL CODE § 2.02(2)(c) (Proposed Official Draft 1962) (emphasis added).

[FN58]. MODEL PENAL CODE § 2.02(2)(d) (Proposed Official Draft 1962).

[FN59]. Compare id. § 2.02(2)(c) with id. § 2.02(2)(d). Note that "recklessness" is defined to mean awareness of the risk that the required result element will occur or that the required circumstance exists. "Recklessness" is not defined to require awareness of the risk that the defendant's conduct will break the law or subject him to criminal liability. See id. § 2.02(9); see also People v. Fullerton, 86 A.D.2d 70, 449 N.Y.S.2d 108 (App. Div. 1982) (awareness of the risk distinguishes recklessness and negligence).

[FN60]. The dispute over whether negligence or recklessness should mark the outer boundary of criminal liability is carried forward on several fronts. On the one hand, some argue that actual awareness or foresight of the consequences should be required because a person who by definition is unaware of the risk cannot be deterred from taking it. See J. HALL, supra note 20, at 137; G. WILLIAMS, supra note 7, § 43, at 122-23; § 54, at 150-52. Further, negligent people arguably do not deserve punishment because their defect is not a moral one, but rather one of knowledge or understanding that particular conduct may cause a particular harmful result. To punish such defendants is to punish them for being stupid. See Keedy, Ignorance and Mistake in the Criminal Law, 22 HARV. L. REV. 75, 84 (1908).

On the other hand, many argue that just as the threat of punishment can cause people to exercise greater control over their conduct, it can also cause them to be more thoughtful about potential harms. See MODEL PENAL CODE § 2.02 comment 3, at 126-27 (Tent. Draft No. 4, 1955); Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 COLUM. L. REV. 701, 751 (1937). Moreover, because inattention and thoughtlessness are not inevitable, they may be considered to be blameworthy. See Brady, Punishment for Negligence: A Reply to Professor Hall, 22 BUFFALO L. REV. 107 (1972); Mueller, On Common Law Mens Rea, 42 MINN. L. REV. 1043, 1063-64 (1958) (negligence is culpable because the actor is unaware in spite of an ability to be so); Packer, Mens Rea and The Supreme Court, 1962 SUP. CT. REV. 107, 144 (negligent actors are blameworthy because they deviate from acceptable standards of conduct).

[FN61]. See Packer, supra note 60, at 144 ("negligence and strict liability share reliance on an external standard that ignores the actual state of mind").

[FN62]. See note 87 infra.

[FN63]. MODEL PENAL CODE § 2.02(2)(c) (Proposed Official Draft 1962); see People v. Fullerton, 86 A.D.2d 70, 449 N.Y.S.2d 108 (App. Div. 1982) (majority finds defendant's conduct not a gross deviation under the circumstances, dissent disagrees).

[FN64]. For citations to relevant literature, see note 88 infra.

[FN65]. In addition to the definitions of "purpose" with respect to conduct, circumstance, and result, see text accompanying notes 66-68 infra, Model Penal Code § 2.02(6) provides: "When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense."

Several jurisdictions use the label "intentional" to refer to the Model Penal Code's "purposeful" culpability. See, e.g., Criminal Code of 1961, § 4-4, Ill. Ann. Stat. ch. 38, § 4-4 (Smith-Hurd 1972); N.Y. Penal Law § 15.05(1) (McKinney 1975); 18 Pa. Cons. Stat. Ann. § 302(b)(1) (Purdon 1973); see also S. 1437, 95th Cong., 1st Sess. § 302(a) (1977). The drafters of the Model Penal Code themselves equate the terms. Model Penal Code § 1.13(12) ("intentionally or with intent means purposely"); see also People v. Frysig, --- Colo. ---, 628 P.2d 1004 (1981) (statutory change from "intent" to "purpose" did not alter the intent requirement).

[FN66]. MODEL PENAL CODE § 2.02(2)(a)(ii) (Proposed Official Draft 1962). Some jurisdictions do not define "purposeful" as to circumstance. See, e.g., Colo. Rev. Stat. § 18-1503(1) (1978); Criminal Code of 1961, § 4-4, Ill. Ann. Stat. ch. 38, § 4-4 (Smith-Hurd 1972); Tex. Penal Code Ann. § 6.03(a) (Vernon 1974); see also S. 1437, 95th Cong. 1st Sess. § 302(a) (1977).

[FN67]. MODEL PENAL CODE § 2.02(a)(i) (Proposed Official Draft 1962). Some jurisdictions define "specific intent" as a desire to produce the prohibited result. See, e.g., State v. Elzie, 343 So. 2d 712 (La. 1977).