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Punishment for Criminal Attempts: A Legal Perspective on the Problem of Moral Luck

Published online by Cambridge University Press:  01 January 2020

Thomas Bittner
Thomas Bittner*
Affiliation:
Wellesley College, 106 Central St., Wellesley, MA02481, USA
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Extract

In the criminal law, the law of attempts is of comparatively recent vintage. It is part of an important contemporary legal trend towards early intervention in the criminal process. There are now a substantial number of crimes on the books that, like the crime of attempt, only require that the perpetrator start down the road to carrying out his criminal intentions and do not require him actually to have harmed (or, in some cases, even identified) his victim. Besides the law of attempts, these new crimes include conspiracy and solicitation, forgery and counterfeiting, the possession offences (drugs, burglary tools, counterfeit money, automobile master keys, etc.), even corruption of youth (children). In all these cases, the law is stepping in to forestall harm, rather than waiting until a harm has already happened.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 38 , Issue 1 , March 2008 , pp. 51 - 83
Copyright
Copyright © The Authors 2008

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References

1 Its first appearance in English law was probably Rex v Scofield (1784) Cald. 397, which upheld an indictment for attempting to burn down a house. The general rule that ‘all such acts or attempts as tend to the prejudice of the community, are indictable’ did not appear until Rex v. Higgins (1801) 2 East 5.

2 Interestingly, the concept of early intervention is given its most extreme expression in the Bible story (Deuteronomy 21:18-21) of the stubborn and rebellious son who is headed for a life of crime and who, therefore, ought to be put to death (by stoning). ‘It is better for him to die now, while he is still innocent of bloodshed, than to die later when he is already guilty.’ He is ‘judged on account of his future’ (Talmud Sanhedrin, Ch. 7, 72A).

3 George P. Fletcher, Basic Concepts of Criminal Law (New York: Oxford UP 1998), Chapter 10

4 See Michael D. Bayles, ‘Punishment for Attempts,’ Social Theory and Practice 8 (1982) 19-29, 23 for an explanation of this way of characterizing the interests violated by criminal attempts (not endorsed by Bayles, himself).

5 This is the approach taken in the Model Penal Code, for example. American Law Institute, Model Penal Code: Official Draft (Philadelphia: American Law Institute 1962).

6 There are a few odd cases in which a failed attempt is illegal while the successful act is not. For example, in some jurisdictions, although not in Canada, attempted suicide is a crime while suicide is not. Treason, too, seems to fit this pattern, because while attempted treason is a serious crime, successful treason is never prosecuted. I think it is clear that neither of these ‘exceptions’ poses a real problem for the claim at issue.

7 There are a few exceptions to this rule, such as attempting to kill the Queen. Canada Criminal Code, section 24, contains the definition of attempt; section 46 defines high treason.

8 Joel Feinberg, ‘Equal Punishment for Failed Attempts,’ Arizona Law Review 37 (1995) 117-33; Sanford H. Kadish, ‘The Criminal Law and the Luck of the Draw,’ Journal of Criminal Law and Criminology 84 (1994) 679-702; David Lewis, ‘The Punishment that Leaves Something to Chance,’ Philosophy and Public Affairs 18 (1989) 53-67; Andrew Ashworth, ‘Criminal Attempts and the Role of Resulting Harm,’ Rutgers Law Review 19 (1988) 725-72; and Hyman Gross, A Theory of Criminal Justice (New York: Oxford UP 1978), among others.

9 Lewis does not actually claim that we ought to change our current punishment g uidelines. Rather, he argues, in the face of the facts, that we already do punish attempts equally severely as we punish the corresponding completed crimes. Lewis, ‘The Punishment.’ For pragmatic reasons, Kadish is uncertain about whether we ought to change our sentencing policies, although he agrees that they are irrational and unjust. Kadish, ‘The Criminal Law.’

10 Feinberg, Kadish, Lewis, Ashworth, and others all argue in this way. Feinberg, ‘Equal Punishment,’ Kadish, ‘The Criminal Law,’ Lewis, ‘The Punishment,’ Ashworth, ‘Criminal Attempts.’

11 Lewis, ‘The Punishment,’ 53

12 Fletcher, Basic Concepts, 173

13 Feinberg, ‘Equal Punishment,’ 119

14 Ashworth, ‘Criminal Attempts,’ 733. It is worth noting that Ashworth distinguishes between incomplete and completed attempts (such as Dum's), and he specifically restricts his claims about reform to the latter. This restriction allows him to avoid one of the objections I will raise in the next section. It also makes his position a less radical one than Feinberg's, because it requires him to retain the crime of attempt, at least for incomplete attempts. When Dum follows his victim, draws his gun, and takes careful aim, he is already guilty of attempt. The police should not be made to wait until after he has pulled the trigger (and missed hitting his victim) in order to arrest him. Ashworth also assumes the burden of drawing the distinction between incomplete and completed attempts, one that seems clear in the Dee/Dum type cases but not for many others, such as burglary, larceny, sexual assault, and others discussed in the next section.

15 Dee/Dum type cases are exceptional, but they are not just a philosopher's invention. One instance of them is when the victim of an attack is sent to hospital and his attacker is apprehended. The attacker may be charged with murder only if the victim dies. But, the victim's survival seems to depend on factors (availability and skillfulness of medical treatment, health condition of the victim, etc.) that are outside of the knowledge and control of the attacker. The attack is finished, yet the legal classification into which it falls is not yet determined. Therefore, this determination depends on luck, and that is what is unfair, say the reformers. A similar situation arises in connection with the use of Victims Impact Statements in sentencing. See Payne v. Tennessee (1992) 11 S.Ct. 2597. Here, the severity of the punishment in a criminal case can be affected by the harm suffered by the family of the victim, which is, again, a factor that is likely to be outside the knowledge and control of the criminal.

16 Commonwealth v. Malone (Pa. 1946) 47 A.2nd 445, quoted in Kadish, ‘The Criminal Law,’ 682.

17 Bernard Williams, ‘Postscript’ in Daniel Statman, ed., Moral Luck (New York: SUNY Press 1993), 251-58, 251. Italics mine.

18 For the sake of simplicity in framing the control condition, I ignore the special case of negligence, in which a person can be blamed for harms he did not foresee and did not try to produce. See fn 31, below.

19 Martha Nussbaum, The Fragility of Goodness (Cambridge: Cambridge UP 1986)

20 Judith Andre, ‘Nagel, Williams, and Moral Luck,’ Analysis 43 (1983) 202-7, 202

21 Thomas Nagel, ‘Moral Luck,’ in Mortal Questions (Cambridge: Cambridge UP 1979), Ch. 3, 24

22 Thomas Nagel, ‘Moral Luck,’ in Proceedings of the Aristotelian Society Supplementary Volume 50 (1976) 137-51, 138, and Nagel, Mortal Questions, 25

23 Since my concern in this article is with the reform movement as a whole, I have taken as my target an argument that is roughly common among reformers I mention in fn 8, above, and have not dealt with some of the specifics or the subtleties of Andrew Ashworth's arguments for reform. See his ‘Belief, Intent, and Criminal Liability,’ in J. Eekelaar and J. Bell, eds., Oxford Essays in Jurisprudence: Third Series (New York: Oxford UP 1987); ‘Criminal Attempts and the Role of Resulting Harm,’ Rutgers Law Journal 19 (1988) 725; and ‘Taking the Consequences,’ in S. Shute, J. Gardner, and J. Horder, eds., Action and Value in Criminal Law (New York: Oxford UP 1993). I will take up Ashworth's approach to the question of punishment for criminal attempts in a separate article.

24 Immanuel Kant, Foundations of the Metaphysics of Morals (Indianapolis: Bobbs Merrill 1969), 1st section, 3rd paragraph.

25 Nagel, Mortal Questions, 24

26 Ibid.

27 Immanuel Kant, ‘Responsibility for Consequences of Actions,’ in Lectures on Ethics, trans. Louis Infield (New York: Harper & Row 1963), 59

28 Immanuel Kant, ‘On a Supposed Right to Lie from Altruistic Motives,’ in Critique of Practical Reason and Other Writings in Moral Philosophy, trans. Lewis White Beck (Chicago: University of Chicago Press 1949), 348 (quoted by James Rachels, The Elements of Moral Philosophy, 4th ed. (New York: McGraw Hill 2003), 124-5)

29 It is beyond the scope of the present article to continue this defense of the attribution of the asymmetrical principle of moral responsibility to Kant. I'll just say that it seems to me that much more could be said, including the claim that this kind of asymmetry is a basic theme of Kantian ethics. The good will is guided by reason and genuine necessity, while the bad will is guided by self-love and inclination, which are merely contingent. So, it is entirely appropriate for contingency to be taken into account in assessing only the bad will and not in assessing the good will.

30 St. Thomas Aquinas, Summa Theologiae IIaIIae, Q. 64, Art. 8. In mentioning the issue of ‘due care,’ St. Thomas is raising an important and difficult problem for any general analysis of the conditions of criminal and moral responsibility. Why do we hold a person responsible not only for the harms that he intentionally causes but also for those harms that result from his failing to take due care in ‘some legitimate enterprise’? Clearly, a person who intends the harm he causes may be held responsible for it, but we also blame the person who did not aim at or even foresee the harm he caused, but could have and should have foreseen and prevented it. In other words, there are many circumstances in which a person is required to meet certain standards of due care and is held responsible for failing to meet those standards.

It is beyond the scope of this article to discuss this topic; my sketch of the conditions of moral responsibility offered below (‘the weak symmetrical control principle’ discussed in sections 7, 8, and 9) does not explicitly cover negligence (the failure to exercise due care). Control is a necessary condition for responsibility in the case of intentional harm. But, the case of negligence demonstrates that knowledge and control cannot be necessary conditions for moral responsibility in general, because in negligence, a person is held responsible even though he did not aim at or even foresee the harm he produced.

The main claims I make about foresight and control in the context of attributions of moral responsibility for intentional harms concern how we should understand these two concepts and, in particular, how they are related to luck. In negligence, responsibility does not depend on actual foresight and control but rather on the foresight and control that should have been exercised but was not. In my judgement, the claims I make about foresight and control will apply just as much to whatever additional principles are needed to account for responsibility under negligence as they do to the more basic case of responsibility for intended harms. See, also, fn 31.

31 My simple division of actors into those with good will and those with bad will leaves out the important category of those who are negligent or reckless (those who fail to exercise due care, as St. Thomas says) as well as those who may be held responsible under so-called ‘bad Samaritan law’ for harms they failed to prevent, but should have. Again, it is beyond the scope of this article to take on these complications.

32 Joel Feinberg, ‘Problematic Responsibility in Law and Morals,’ Philosophical Review 71 (1962) 340-51

33 Smith says that this feeling is ‘acknowledged by all the world and there is not a dissenting voice among all mankind.’ Adam Smith, A Theory of the Moral Sentiments (1759), quoted in Paul Russell, ‘Smith on Moral Sentiment and Moral Luck,’ History of Philosophy Quarterly 16 (1999) 37-58.

34 G. Ryle, The Concept of Mind (New York: Barnes and Noble 1949) is still the best critique of Cartesian dualism and what Ryle calls ‘the two lives (or two worlds) legend.’ The reformers are committed to something like the two lives legend, though they are perhaps not setting the dividing line exactly where Descartes would have had it.

35 R.A. Duff, Intention, Agency and Criminal Liability (New York: Oxford UP 1990), 188

36 Ashworth, ‘Taking the Consequences,’ 109

37 Ibid, 108-9. See also Ashworth, ‘Belief, Intent, and Criminal Liability.’

38 Ashworth, ‘Taking the Consequences,’ 108

39 Williams, ‘Postscript,’ 251

40 See R.A. Duff, ‘Acting, Trying, and Criminal Liability,’ in Action and Value in Criminal Law, ed. S. Shute, J. Gardner, and J. Horder (New York: Oxford UP 1993) 75-106, especially 101-2 and 106, fn 109, for a similar position on these questions. Winch argues that we should ‘abandon the idea that criminal liability should depend on acts which are ‘ours’ in the ‘metaphysically radical sense’ citing the discussion in P. Winch, ‘Trying,’ in Ethics and Action (London: Routledge 1972). Duff's discussion is in the context of a general discussion of the nature of action.

41 Bernard Williams, ‘Moral Luck,’ in Moral Luck (Cambridge: Cambridge UP 1983), 29-30

42 Nagel, Proceedings of the Aristotelian Society, 140

43 Ibid, 149

44 Margaret Urban Coyne [Walker], ‘Moral Luck?’ The Journal of Value Inquiry 19 (1985) 322

45 Ibid, 319

46 Ibid, 322

47 Feinberg, ‘Problematic Responsibility’

48 For an opposing view, see Thaddeus Metz, ‘Arbitrariness, Justice, and Respect,’ Social Theory and Practice 26 (2000) 25-45. Metz argues that we can draw the line at ‘our essential nature as persons’ where ‘personhood, or rational will, is the ability to think and act according to deliberation’ (28). Metz is engaged in the project of elaborating and defending an argument against libertarianism that turns on Rawls’ notion of ‘the arbitrariness of fortune.’ See John Rawls, A Theory of Justice (Cambridge, MA: Harvard UP 1971). See also Robert C. Coburn, ‘Distributive Justice and ‘the Arbitrariness of Fortune’,’ Philosophical Inquiry 2 (1980) 441-57. This line of argument contends that it would be unjust to distribute the important goods and advantages of a society to its members in a way that makes the size of their shares depend in large part on their natural talents and abilities and their initial social position, because these natural and social endowments reflect merely the arbitrariness of fortune. I am sceptical of the prospects for success of this especially radical attempt to specify some sort of agent who is completely free of the effects of luck, because it leaves us with a very thin notion of the self as a pure rational creature. I doubt the claim that the ability to use deliberation in the service of thought and action is somehow essential to a person's nature in a way that his other talents and abilities are not. In any case, it is not at all clear that this view can provide any support to the specific kind of reforms I am opposing in this paper.

49 Again, I here ignore the special case of negligence.

50 It would not be unreasonable to decide that Hotspur does deserve blame for the death of Haemo. If he does, it is because we can see a connection between what he foresaw or intended in slapping Haemo and what resulted (Haemo's death). If there really were no connection, if the case were like the elevator electrocution case mentioned in sections VII and IX and Haemo's slap were no more than a necessary condition of Haemo's death, we would not blame him for the death. I concede that reasonable people can disagree on whether that connection occurs in this particular case. Clearly it does occur in Dee's case and clearly it does not in the elevator case.

51 Compare the exposition of Kant's views on moral responsibility and the interesting and subtle discussion of a whole series of sample cases in Thomas E. Hill, Jr., ‘Kant on Responsibility for Consequences,’ in Respect, Pluralism, and Justice (New York: Oxford UP 2000) 155-72.

52 I thank two anonymous reviewers for this journal for their helpful comments on an earlier version of this essay.