“Broad” Culpability and the Retributivist Dream

The criminal law is centrally concerned with culpability or mens rea— roughly, the mental (or quasi-mental) components of blame. But culpability has at least two dimensions. Narrow culpability involves the purpose, knowledge, recklessness, or negligence required by statute for each material element. What Joshua Dressler aptly calls broad culpability involves the other mental (or quasi-mental) components of blame. Penal theorists have made enormous progress producing a theory of narrow culpability. In this paper, I endeavor to make progress producing a theory of broad culpability. I describe several parts an adequate theory of broad culpability must contain. In particular, I describe the problems encountered by each part in explaining how blame can be expressed in various shades of gray rather than simply in black or white.