Meaning and Motive in the Law of Homicide (reviewing Samuel H. Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter)

Guyora Binder, University at Buffalo School of Law

Abstract

Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications of his premises for the law of homicide: the legitimacy of felony murder liability. The essay outlines a defense of felony murder on the basis of Pillsbury’s premises, and concludes that such an argument would have enhanced the coherence, comprehensiveness and significance of his theory.