ABSTRACT
Most people would agree that homicide, rape, and theft, for example, ought to be criminalized. Some offenses, like price-fixing, are less intuitively improper conduct. The common law distinguished the former kind of offense, called “malum in se” offenses, from the latter kind, called “malum prohibitum” offenses. Thinking about committing a crime is not itself a crime. However, at some point in a person’s course of conduct, after the initial thought but before actual commission of the offense, the person becomes criminally liable. The intention of a person to commit an offense has been shown to be a powerful determinant of liability in other contexts. It should be no surprise to see that the person’s intention, alone, has some effect in generating judgments of liability by a minority of the subjects. Just as someone may be liable for attempting to cause a prohibited harm, so too may one be liable for creating a risk of causing a prohibited harm.
