Losers & Winners
Keeping Attempted and Successful Crimes Separate 1
While there is consensus on the necessity of punishing criminal offences, there continues to be some dissonance on the issue of how much we should punish those actually convicted of serious crimes like murder. This paper is an attempt to better understand the various views on this issue, with a special focus on the reasons offered to reform our current system of differentiating between attempted and successful crimes. Finally, we will look at reasons offered in refutation to this suggested reform with the hope of determining if this problem is as grave as has been suggested.
Justice, we are told, requires punishment in order to remain justice. But is this necessarily so? Surprisingly, both major schools of thought on issues of crime and punishment have reached consensus on this issue, though their reasons for agreeing are quite different. The utilitarian, as explained by Joel Feinberg, believes that while punishment, in and of itself is never good, it is justifiable when “it is a means to such future goods as correction (reform) of the offender, protection of society against other offences from the same offender, and deterrence of other would-be offenders” (The Classic Debate, 627). Ultimately, it is a matter of greatest social utility; if punishment is the way to achieve the “most good or the least harm to all those who will be affected by it”, then it is the viable option (627). Retributivists on the other hand, believe that punishment is the appropriate response to the moral failing of a criminal, with the right amount of punishment being “that amount which fits, matches, or is proportionate to the moral gravity of the offence” (625). And in such cases, moral guilt is not only necessary, but also sufficient to justify punishment, regardless of the consequences (625).
Arising from this agreement on the necessity of punishment, we see that guidelines have been created in most (if not all) nations that speak to how crimes are to be recompensed. A person convicted of murder, for example, might be sentenced to death or to a number of years in prison that make up what is often called a ‘life sentence’. And as is often the case, crimes considered more abhorrent are punished with more severity. This methodology has for the most part remained unchallenged, but in recent discourse on punishment, some have pointed out an apparent rift between both utilitarian and retributivist philosophy on justice and how sentencing is carried out.
Consider, if you will, two criminals: Alpha and Beta. (Variably, these two are also known by other unfortunate monikers such as ‘Dum’ and ‘Dee’ or ‘A1’ and ‘A2’ and the like, depending on the literature.) Both Alpha and Beta are planning on murdering their respective spouses with the hopes of marrying their mistresses once the gruesome tasks are complete. Co-incidentally, both also hope to accomplish the above by shooting their significant other while they sleep. In fact, they both, as far as can be determined, have the same motive, the same intentions, and the same desire to see the act completed. Alpha successfully completes his plan, but the gunshot is overheard by a neighbour. The police are summoned and justice is allowed to take its course. Beta, similarly, enters his bedroom one night, aims the gun at his wife’s sleeping figure and fires. At that very moment, however, his wife chose to roll over. That slight, unexpected action – an intervention of what is often called ‘Moral Luck’ – resulted in Beta missing his wife.2 His narrative, then, rejoins that of Alpha’s, with similar actions from neighbours, the police, and justice. Once due process is fulfilled, we find Alpha sentenced to life in prison for first degree murder. Beta, on the other hand, is sentenced to some lesser number of years in prison after being convicted of attempted murder. It is at this point that our questioning philosopher – let us call him ‘the Reformist’ – raises his hand in objection.
The Reformist’s position, elegantly described by Joel Feinberg in his paper, “Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It”, takes aim at the discrepancy between why we claim to punish crimes and how we actually punish them: “the legal system which countenanced it is not committed to the principle of proportionality, which requires that the severity of the punishment be proportional to the moral blameworthiness of the offence” (118). This is, of course, meant to speak directly to the retributivist, who feels moral blameworthiness is enough to condemn a person. The utilitarian, however, must also acquiesce given that she desires to use punishment for the aforementioned correction, protection, and deterrence. Ultimately, Feinberg concludes, because persons who fail to attain the desired consequence of their criminal actions are just as morally blameworthy as those who succeed, our system of punishment needs to be reformed to equalise the sentences given to those convicted of either by increasing the penalty for attempted crimes, or reducing the penalty for successful ones (121-122). Finally, Feinberg also suggests that a change in terminology might be necessary to do away with the cultural associations of terms like “murder” and “attempted murder” (119). This would, we are assured, leave us with a justice system that truly punishes the moral guilt of a criminal while also accomplishing the greatest social utility.
There has been, as Feinberg notes, much critical reaction to the Reformist position. He finds this puzzling, and discusses two arguments that seek to refute his stance. The first wishes to simply do away with the idea of attempted crimes all together on the thesis that, as far as Feinberg can ascertain, harmless crimes, though perhaps distasteful, are not the responsibility of the state as far as their punishment is concerned (122). Feinberg quick dismisses this as illogical: “it does not follow that unsuccessful attempts to perform an act of a type that is very harmful (like murder, for example) should not be criminalised” (122-123). The second argument, from “Democratic Consensus”, suggests that the idea of attempted and successful crimes are ingrained in our society’s way of thinking. As such, these ideas should be preserved for the sake of the the layman, instead of risking his alienating when we try and do away with the concept of harm playing a role in the conviction of crimes (125). Feinberg dismisses this position as well, but it is in this second argument that I believe there is a hint at why most people react adversely to the Reformist’s position. The remainder of this paper will be spent discussing the reasons for said reaction to see if they might play any significant role in preserving our current system of punishment.
Judith Thomson, who Feinberg mentions in passing in his paper, has offered her thoughts on this issue in her essay, “The Decline of Cause”. And although she does not deal with murder and attempted murder, her discussion of consequences is most enlightening. Thomson points out that the Reformist’s position is actually the fruition of Kant’s ideas concerning intention: “The good will is not good because of what it effects or accomplishes… it is good only because of its willing….Usefulness or fruitlessness can neither diminish nor augment [its] worth” (Thomson, quoting Kant, 142). This is, as Thomson rightly concedes, a very intuitive position; most would agree that our intentions should play a role in how our actions are interpreted. But should they be the only deciding factor, to the omission of all else? Thomson disagrees, using the example of two truck drivers – ‘Unlucky Fault Driver’ (UFD) and ‘Unlucky No Fault Driver’ (UNFD) – who, unfortunately, cause the death of a child while driving, to prove her point. UNFD, we are told, hit the child as he suddenly darted out from between two cars – there was nothing more he could have done to prevent the crime. UFD, on the other hand, was driving with bad brakes. As a result, he could have actually stopped before hitting the child in front of him, were his brakes in order. After considering these two, Thomson points out that while UNFD was doubly unlucky to have the child dart out and not be able to stop the truck in time, UFD was only unlucky in having the child dart out. His being unable to brake had nothing to do with luck: it was his fault, even though he certainly did not intend to kill anyone as he left the depot (145). This is an example, Thomson concludes, in which actions or the lack thereof (namely, UFD’s negligence) should play a pivotal role in our decision to condemn him and the consequences of his decisions despite the incursion of moral luck.
Let us now consider the relationship between intentions, actions and consequences from another angle. John Gardner, in his paper, “The Gist of Excuses”, demonstrates quite aptly that while intentions, once we know them, can indeed affect how we interpret someone’s actions, generally speaking the law sees actions as the direct result of intentions that aimed to accomplish said actions (604-605). Gardner describes this using the example of cowardice: “there is no such thing as a cowardly action which does not show its agent in a cowardly light. It is true that a cowardly light maybe a rather unflattering light…But an unflattering light is not the same as a false light” (605). To this point, I do not see the Reformist posing any objections. It would, I suspect, probably add some weight to his cause for punishing Beta’s attempted action as the result of an intention to kill. But if we take Gardner’s thoughts, add them to those of Thomson, and consider another example of attempt and success we are left with results that the Reformist might have some trouble accepting.
For the sake of consistency, let us once again think of Alpha and Beta. In this example, however, they are still young and single, and competing against each other in a university track and field meet. Their event is the 100 metre dash. The gun has sounded and both of them are off to an excellent start, running head to head. In fact, as they near the finish line, it appears that they are actually going to tie for first place. But, just a few feet before crossing the finish line, Beta trips and finds himself the second to cross the finish line. As the results are about to be announced, however, Beta quickly rushes to the judges and makes the following case: “I have,” he argues, “shown the same intent, desire, and motive as Alpha in my racing.” “I prepared just as hard and ran just as skilfully.” “In fact, it was merely a matter of luck that a pebble was sitting at the very position I placed my foot before I tripped and fell.” “And so, I would request that I still be given the gold medal along with Alpha.” At this point, any judge, or observer for that matter (and dare I say, the Reformist as well), would dismiss Beta’s request as either a joke or lunacy. The fact of the matter is that he, regardless of reason, did not cross the finish line first, and as a result, cannot lay claim to the gold medal. And yet, in essence, is this not what the Reformist has asked us to do? Furthermore, if this is how society on the whole operates, rewarding successful actions and not just the intention to be successful, why should our reasons for punishment be any different?
I will add two final points to my discussion of this issue. Firstly, all the examples used in the literature on the subject of attempted and successful crimes work on the basis of two similar crimes. This approach, I feel, has clouded the issue. There will never be a situation where two such similar crimes, where intentions, motives, desires, and actions are the same, could occur. As such, when we consider the work of either Alpha or Beta on its own, the crimes would take on a completely different light, and we would, I believe, be loathe to grant Beta a severely harsh sentence, or Alpha a more lenient one.
My second point has to do with the one matter of note that I will grant the reformist: there can certainly be times when a criminal will receive a more lenient sentence because his crime did actually fail for reasons out of his control. In response, I would counter that this is a risk we must be willing to take for the sake of erring on the side of caution. When the pawns we are playing with are real people (and their very lives, in the most extreme cases), it would be morally just on our part, and serve the greatest utility to, for lack of a better phrase, “play it safe”.
My hope with this paper has not been to attempt a demolition of the Reformist’s position. It is, without a doubt, logical and compelling. I feel, however, that the doubts that seem to nag at us when approached with this view should not be ignored. I also believe that I have demonstrated that these doubts arise from an intuitive realisation that in accepting the Reformist’s position, we would be also undermining the way we make decisions in almost every other facet of our lives. If any of the preceding arguments have lent some credence to the doubts raised against the Reformist, then I have accomplished what I set out to do.
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1 This paper arose from a conversation I had with my colleague, Jessica Zita, at the University of Toronto. I am deeply indebted to her for her thoughts, criticism, and insight regarding the formulation of the ideas that make up my argument. I am also indebted to Ashwin Balamohan for his clarification on the divisions between the utilitarian and retributivist schools of thought on punishment.
2 Moral luck is, simply put, any outside factor that might affect the desired outcome of our actions. It might, in other situations, be called fate, kismet, or the hand of God. For a more robust discussion of this topic, see David Lewis’ “The Punishment that Leaves Something to Chance” or Bernard Williams’ seminal work on the topic, Moral Luck.
