Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law is Predicated

Traditionally, criminal law has been based on two elements, mens rea and actus reus. In this article, Professor Loewy argues that analysis of criminal liability should not be so limited, but rather should focus on three factors: culpability, dangerousness, and harm. Professor Loewy examines the three factors and the relevance they have in connection with nine of the most controversial issues in criminial jurisprudence today. He also examines the roles that the three factors play in punishment, including capital punishment. Professor Loewy concludes that a proper focus on culpability, dangerousness, and harm would aid judges, legislators, and scholars in analyzing some of the more controversial issues of criminal law.