Alex Sarch

University of Surrey, Law, Faculty Member

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My work focuses on issues involving mens rea, culpability and the criminal law.

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Books by Alex Sarch

Criminally Ignorant: Why the Law Pretends We Know What We Don't

by Alex Sarch and Alexander Sarch

Oxford University Press, 2019

This is a book about the legal fiction that sometimes we know what we don't. The willful ignoranc... more This is a book about the legal fiction that sometimes we know what we don't. The willful ignorance doctrine says defendants who bury their heads in the sand rather than learn they're doing something criminal are punished as if they knew. Not all legal fictions are unjustified, however. This one, used within proper limits, is a defensible way to promote the aims of the criminal law. Preserving your ignorance can make you as culpable as if you knew what you were doing, and so the interests and values protected by the criminal law can be promoted by treating you as if you had knowledge.

This book provides a careful defense of this method of imputing mental states based on equal culpability. On the one hand, the theory developed here shows why the willful ignorance doctrine is only partly justified and requires reform. On the other hand, it demonstrates that the criminal law needs more legal fictions of this kind. Repeated indifference to the truth may substitute for knowledge, and very culpable failures to recognize risks can support treating you as if you took those risks consciously. Moreover, equal culpability imputation should also be applied to corporations, not just individuals. Still, such imputation can be taken too far. We need to determine its limits to avoid injustice. Thus, the book seeks to place equal culpability imputation on a solid normative foundation, while demarcating its proper boundaries. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing need for reform.

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Papers by Alex Sarch

Too Objective for Culpability?

Criminal Law and Philosophy

To help explain in a principled way why criminal law doctrine tends to abstract away from motives... more To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability and is better understood as a theory of criminal wrongs. This challenge is important not least because it requires getting clearer about what wrongness and culpability are and what roles they play on a legal moralist picture of the criminal law. Here, I argue that Walen’s objection is mistaken. Once we get clearer on what distinguishes wrongness and culpability, it becomes clear that my account is best seen as a theory of culpability. This is so even though it calculates degrees of culpability in a more objective way than other insufficient regard views. Besides just defending my account from Walen’s objecti...

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Don’t Be Cruel

Journal of Ethics and Social Philosophy

The problem of legal luck asks why defendants who cause harm should receive more punishment than ... more The problem of legal luck asks why defendants who cause harm should receive more punishment than analogous actors who, simply due to luck, don’t cause harm. Here I consider one type of justification that assumes luckily harmless actors are just as culpable as their harmful counterparts. Specifically, I focus on the legislature’s reasons to ratchet down punishments for harmless wrongdoers beneath what is permitted on culpability grounds. After critiquing several such arguments (including one from mercy), I develop a more promising version based on the idea that the legislature has a duty not to be cruel. The legislature would violate this duty if it always passed laws imposing the maximum punishments permitted on culpability grounds. Withholding some punishment otherwise due harmless wrongdoers thanks to their culpability is a particularly appropriate way for the legislature to eschew cruelty. This provides a promising new justification for punishing luckily harmless misconduct less ...

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Double Effect and the Criminal Law

Criminal Law and Philosophy, 2015

American criminal law is committed to some version of the doctrine of double effect ("DDE"). In t... more American criminal law is committed to some version of the doctrine of double effect ("DDE"). In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE.

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Shedding Light in the Dark Forest: A Theory of Liability For Cryptocurrency "MEV" Sandwich Attacks

SSRN Electronic Journal

Legitimate Divergence between Moral and Criminal Blame

SSRN Electronic Journal

On the objectivity of welfare

This dissertation is structured in such a way as to gradually home in on the true theory of welfa... more

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Resolving Judicial Dilemmas

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pul... more The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ...

Skepticism About Corporate Punishment Revisited

The Palgrave Handbook of Applied Ethics and the Criminal Law, 2019

Some societies used to impose liability on inanimate objects, a practice we'd now regard as silly... more Some societies used to impose liability on inanimate objects, a practice we'd now regard as silly and confused. When we punish corporations today, are we making similar mistakes? Here I consider some important sources of philosophical skepticism about imposing criminal liability on corporations, and I argue that they admit of answers, which places punishing corporations on stronger footing than punishing inanimate objects. First, I consider the eligibility challenge, which asserts that corporations are not the right kind of thing to be punished. Second, the reductionist challenge insists that corporate culpability always reduces to individual culpability. I suggest that progress can be made in addressing these challenges by asking the right law-focused questions and attending to recent developments in criminal law theory and moral philosophy. Some ancient societies-and some not-so-ancient ones-imposed liability on inanimate things. Oliver Wendell Holmes noted that in the time of Edward I, "[i]f a man fell from a tree, the tree was deodand"-that is, forfeited as an "accursed thing" and given to God. (Holmes, 1991, p.7; see also Blackstone, 1769, ch.8). "If he drowned in a well, the well was to be filled up. It did not matter that the forfeited instrument belonged to an innocent person" (Holmes, 1991, pp.24-25). As late as in the reign of Henry VIII, it was held that if a sword kills a person, "the sword shall be forfeit as deodand, and yet no default is in the owner" (Holmes, 1991, p.25). Modern readers are likely to write off this practice as confused, unfair or even primitive. Are we guilty of similar mistakes when we punish corporations? Some legal scholars think so. 1 (Alschuler, 1991, p. 312). Nonetheless, as this Chapter will argue, the case for punishing corporations is on substantially better footing than the punishment of inanimate objects like swords and

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Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

Law and Philosophy, 2021

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize... more In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the...

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Criminally Ignorant: Why the Law Pretends We Know What We Don't

SSRN Electronic Journal, 2019

This is a book about the legal fiction that sometimes we know what we don't. The willful igno... more This is a book about the legal fiction that sometimes we know what we don't. The willful ignorance doctrine says defendants who bury their heads in the sand rather than learn they're doing something criminal are punished as if they knew. Not all legal fictions are unjustified, however. This one, used within proper limits, is a defensible way to promote the aims of the criminal law. Preserving your ignorance can make you as culpable as if you knew what you were doing, and so the interests and values protected by the criminal law can be promoted by treating you as if you had knowledge. This book provides a careful defense of this method of imputing mental states based on equal culpability. On the one hand, the theory developed here shows why the willful ignorance doctrine is only partly justified and requires reform. On the other hand, it demonstrates that the criminal law needs more legal fictions of this kind. Repeated indifference to the truth may substitute for knowledge, and very culpable failures to recognize risks can support treating you as if you took those risks consciously. Moreover, equal culpability imputation should also be applied to corporations, not just individuals. Still, such imputation can be taken too far. We need to determine its limits to avoid injustice. Thus, the book seeks to place equal culpability imputation on a solid normative foundation, while demarcating its proper boundaries. The resulting theory of when and why the criminal law can pretend we know what we don't has far-reaching implications for legal practice and reveals a pressing need for reform.

Punishing Artificial Intelligence: Legal Fiction or Science Fiction

SSRN Electronic Journal, 2019

/robot-with-100-bitcoin-buys-drugs-gets-arrested.html. 4 Id. 5 See Matt Novak, Was This The First... more /robot-with-100-bitcoin-buys-drugs-gets-arrested.html. 4 Id. 5 See Matt Novak, Was This The First Robot Ever Arrested?, GIZMODO (Feb. 18, 2014), https://paleofuture.gizmodo.com/was-this-the-first-robot-ever-arrested-1524686968 (describing police confiscation in 1982 of a robot: "The police considered citing [its owner] for failing to obtain a permit for advertising…but no charges were filed and the robot was ultimately returned."). Robot encounters with law enforcement are becoming more common. See, e.g., Peter Dockrill, A Robot Was Just 'Arrested' by Russian Police, SCIENCE ALERT (Sept. 20, 2016), https://www.sciencealert.com/a-robot-was-just-arrested-by-russian-police. 6 21 U.S.C. § 841(a)(1) (criminalizing distribution and possession with intent to distribute a controlled substance). 7 18 U.S.C. § 2(a) (making it a crime to aid and abet offenses). 8 Random Darknet Shopper was eventually returned to its creators together with all of the purchases except the Ecstasy. Kharpal, supra note 1 (noting that prosecutor's comment "that the possession of Ecstasy was indeed a reasonable means for the purpose of sparking public debate about questions related to the exhibition"). Apparently, the Hungarian passport was also returned. Id. 9 See Section IIA, infra (discussing the DAO). 10 See Christopher Markou, We Could Soon Face A Robot Crimewave: The Law Needs to Be Ready, THE CONVERSATION (April 11, 2017), https://theconversation.com/we-could-soon-face-a-robot-crimewave-the-lawneeds-to-be-ready-75276 43 Abbott, supra note 22 at 23-28 (describing super-and ultra-intelligent AI). 44 Jesus Rodriguez, Consciousness and the Weak vs. Strong AI Debate, TOWARDS DATA SCIENCE (August 23, 2018), https://towardsdatascience.com/g%C3%B6del-consciousness-and-the-weak-vs-strong-ai-debate-51e71a9189ca 45 Id. 46 If and when such machines come into existence, we will certainly enjoy reading their works on AI criminal liability.

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Equal Culpability and the Scope of the Willful Ignorance Doctrine

Legal Theory, 2016

Courts commonly allow willful ignorance to satisfy the knowledge element of a crime. The traditio... more Courts commonly allow willful ignorance to satisfy the knowledge element of a crime. The traditional rationale for this doctrine is that willfully ignorant misconduct is just as culpable as knowing misconduct. But it is not obvious that this “equal culpability thesis” holds across the board. Is it true in all cases of willful ignorance or only some? This is the question I investigate here. Specifically, I argue against several common versions of the equal culpability thesis before defending my own restricted version. First, I argue that the broadest version of the thesis, adopted by many courts, is overinclusive. Then I argue against several restricted versions of the thesis offered by legal theorists including Doug Husak, David Luban, and Deborah Hellman. My own account, by contrast, is premised on a duty of reasonable investigation. If my account is on the right track, the widely employed willful ignorance doctrine stands in need of reform.

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Who Cares What You Think? Criminal Culpability and the Irrelevance of Unmanifested Mental States

Law and Philosophy, 2017

The criminal law declines to punish merely for bad attitudes that are not properly manifested in ... more The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law's commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed. A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory's defenders have not adequately explained what it is for an action to manifest insufficient regard. In this paper, I aim to provide the required account of manifestation, thereby rendering the insufficient regard theory more defensible. This, in turn, allows the view to explain the broad range of doctrines that treat unmanifested mental states as irrelevant. The resulting theory of criminal culpability is both descriptively plausible and normatively attractive. Moreover, it highlights the continuity between criminal culpability and moral blameworthiness by showing how the former functions as a stripped-down analogue of the latter. Many criminal law doctrines treat mental states that are not manifested in conduct in the right way as irrelevant. A 'basic premise of Anglo-American criminal law is that no crime can be committed by bad thoughts alone'. 1 Nor do we enhance punishments merely because we know one was willing to offend in worse ways. If I want to kill my enemy 1 WAYNE LAFAVE, 1 SUBST. CRIM. L. § 6.1 (2d ed.). See also Michelson v. United States, 335 U.S. 469, 489 (1948) (Rutledge, J., dissenting) ('Our whole tradition is that a man can be punished … only for specific acts defined beforehand to be criminal, not for general misconduct or bearing a reputation for such misconduct'.); Kenneth W. Simons, Does Punishment for 'Culpable Indifference' Simply Punish for 'Bad Character'? Examining the Requisite Connection Between Mens Rea and Actus Reus, 6 BUFF. CRIM. L. REV. 219, 234 (2002) ('the harsh sanctions of the criminal law should not be brought to bear on individuals who have not yet done anything wrong, but who merely have disreputable-or even dangerous-character traits').

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Ignorance Lost: A Reply to Yaffe on the Culpability of Willful Ignorance

Criminal Law and Philosophy, 2017

In a recent paper in this journal, Gideon Yaffe provides an expected utility model of culpability... more In a recent paper in this journal, Gideon Yaffe provides an expected utility model of culpability in order to explain why willfully ignorant misconduct sometimes is just as culpable as knowing misconduct. Although promising, I argue here that challenges remain for Yaffe's view. First, I argue that Yaffe's proof of the equal culpability of willful ignorance and knowledge is not watertight in certain realistic cases. Next, I argue that Yaffe's view of culpability is motive-sensitive in a way that sits uncomfortably with criminal law doctrine, and I show that his view has difficulty with unjustified actions that are nonetheless privileged. Perhaps these problems can be solved by modifying Yaffe's account using the notion of legally recognized reasons. However, I argue that difficulties remain when it comes to implementing this solution into Yaffe's mathematical model. Finally, I raise concerns about Yaffe's account of willful ignorance in particular. While his view initially seems to have a major advantage over the additive picture of willful ignorance I've defended, this advantage does not stand up under scrutiny. In fact, Yaffe likely relies (albeit covertly) on an additive metaphysical picture of willful ignorance as well.

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Multi-Component Theories of Well-being and Their Structure

Pacific Philosophical Quarterly, 2012

The 'adjustment strategy' currently seems to be the most common approach to incorporating objecti... more The 'adjustment strategy' currently seems to be the most common approach to incorporating objective elements into one's theory of well-being. These theories face a certain problem, however, which can be avoided by a different approach -namely, that employed by 'partially objective multicomponent theories.' Several such theories have recently been proposed, but the question of how to understand their mathematical structure has not been adequately addressed. I argue that the most mathematically simple of these multi-component theories fails, so I proceed to investigate more sophisticated ways to formulate such a theory. I conclude that one of these -the Discount/ Inflation Theory -is particularly promising. It is becoming an increasingly common view among philosophers that well-being does not just depend on one's psychological responses, but rather, as David Brink puts it, also 'must contain important objective components.' 1 What seems to motivate such views is the thought that while some sort of psychological responses (e.g. pleasures or desires) clearly are relevant to one's well-being, there are certain widespread intuitions that suggest that well-being cannot be determined solely by such responses. 2 Thus any theory of well-being that is to adequately fit with our particular-case intuitions must allow certain kinds of responseindependent facts to affect well-being in one way or another. The correct theory, in other words, must be partially 'objective.' If this is right (and let's suppose for the purposes of this article that it is), then we must address the question of how, exactly, it would be best to build the relevant response-independent, or 'objective,' elements into our theory of well-being. I argue that the most common sort of approach to this question -the adjustment strategy -suffers from a certain kind of

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Hausman and McPherson on Welfare Economics and Preference Satisfaction Theories of Welfare: A Critical Note

Economics and Philosophy, 2015

:Hausman and McPherson defend welfare economics by claiming that even if welfare does not consist... more :Hausman and McPherson defend welfare economics by claiming that even if welfare does not consist in preference satisfaction, preferences still provide good, if fallible, evidence of welfare. I argue that this strategy does not yet fully solve the problems for welfare economics stemming from the preference satisfaction theory of welfare. More work is needed to show that our self-interested preferences are sufficiently reliable, or in some other sense our best, evidence of well-being. Thus, my aim is to identify the challenges that remain and clarify what additional work is needed before Hausman and McPherson&#39;s defence of welfare economics succeeds.

Condoning the Crime: The Elusive Mens Rea for Complicity

SSRN Electronic Journal, 2014

There is a long history of disagreement about what the mens rea for complicity is. Some courts ta... more There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention for the underlying crime to succeed while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime-the so-called "derivative approach." However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This Article develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than the existing approaches do. Moreover, it demonstrates that certain reforms to the current legal regime are warranted. Most importantly, the law should recognize that complicity comes in degrees. While reforms of this sort have been previously proposed for reasons relating to causation, this Article argues that different levels of complicity must also be recognized on independent mens rea grounds.

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Willful Ignorance, Culpability and the Criminal Law

SSRN Electronic Journal, 2014

provides that a defendant's knowledge of a fact required to prove the defendant's guilt may be fo... more provides that a defendant's knowledge of a fact required to prove the defendant's guilt may be found when the jury is persuaded that the defendant consciously avoided learning that fact while aware of a high probability of its existence." (internal quotation marks omitted)); United States v. Stadtmauer, 620 F.3d 238, 252, 257 (3d Cir. 2010); United States v. Schnabel, 939 F.2d 197, 204 (4th Cir. 1991) (holding "that the trial court did not err by giving the jury a willful blindness instruction"); United States v. Freeman, 434 F.3d 369, 378-79 (5th Cir. 2005) (upholding a "deliberate indifference" jury instruction); United States v. Holloway, 731 F.2d 378, 380-81 (6th Cir. 1984) (per curiam) (noting that "this circuit has repeatedly upheld the district court's knowledge instruction on the basis that it prevents a criminal defendant from escaping conviction merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct"); United States v. Draves, 103 F.3d 1328, 1333 (7th Cir. 1997) (noting that the defendant's "knowledge of the activity did not have to be 'actual' knowledge. Under the 'conscious avoidance' or 'ostrich' doctrine, knowledge may in some circumstances be inferred from strong suspicion of wrongdoing coupled with active indifference to the truth"); United States v. Florez, 368 F.3d 1042, 1044 (8th Cir. 2004) (" '[Tihe evidence supports an inference of deliberate ignorance'. .. if the defendant was presented with facts that put her on notice that criminal activity was particularly likely and yet she intentionally failed to investigate those facts" (citations omitted)); Heredia, 483 F.3d at 917, 920 (reaffirming the Ninth Circuit's decision in United States v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), one of the seminal cases establishing the permissibility of a willful ignorance instruction); United States v. Glick, 710 F.2d 639, 642 (10th Cir. 1983) (concluding "that an instruction on deliberate avoidance was appropriate"); United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) ("[TIhe knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance."); SEB S. A. v. Montgomery Ward & Co., 594 F.3d 1360, 1377-78 (Fed. Cir. 2010) (finding the Federal Circuit's test for willful blindness to be improper but that in the case presented, the error was harmless), affd sub nom. Global-Tech, 131 S. Ct. 2060; United States v. Mellen, 393 F.3d 175, 181 (D.C. Cir. 2004) (noting that to prove "guilty knowledge [,] ... the government may show that, when faced with reason to suspect he is dealing in stolen property, the defendant consciously avoided learning that fact"). But see United States v.

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What's Wrong With Megalopsychia?

Philosophy, 2008

This paper looks at two accounts of Aristotle's views on the virtue of megalopsychia. The fir... more This paper looks at two accounts of Aristotle's views on the virtue of megalopsychia. The first, defended by Christopher Cordner, commits Aristotle to two claims about the virtuous person that might seem unpalatable to modern readers. The second account, defended by Roger Crisp, does not commit Aristotle to these claims. Some might count this as an advantage of Crisp's account. However, I argue that Cordner's account, not Crisp's, is actually the better interpretation of Aristotle. Nonetheless, this does not ultimately spell trouble for Aristotle, since, as I argue, the claims that Cordner's account commits Aristotle to are, on closer inspection, not really problematic.

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