"no harm, no foul"
Saturday, July 05, 2003
 
PUNISHING FOR RESULTS: With the exception of Michael Moore, there seems to be an almost unanimous academic consensus about punishing successful crimes more harshly (much more harshly) than last-act attempts. The big guns (Kadish, Morse, Feinberg) have come out against it, so much so that one wonders if there must be something to it. That, and the fact that this difference in punishment is so entrenched in our criminal law and doesn’t seem likely to go away anytime soon. One wants, Hegel-like, to find the rose in the cross of the present.

We need an example on the table, in order to pump the intuition that it is irrational to punish successful crimes more harshly than last act attempts. One case is between the successful and the unsuccessful assassin (borrowed from Katz) – both aim, very carefully, at their intended targets. One hits his target, killing him, but the other assassin gets luck (or unlucky, depending on how you look at things) and a bird darts in front of the bullet, sparing the life of his target.

Now, the intuition is that in all the matters which were under their control, there is no difference between the two assassins. What makes them different depends on causal factors under their control. And making factors outside of agents’ control matter in punishment is irrational – kind of like, to use Kadish’s analogy, punishing people more harshly because they commit crimes under a full moon, or on Tuesdays.

Why is it irrational? There seem to be two reasons. The first is that if the criminal law is designed to deter offenders, then we would want to equally deter the person who hits his target and the one who does everything in his control to hit the target. We want to deter behavior likely to cause harm, and the two assassins are both doing this. They do everything in their power to cause the harm – they do this in equal measure. So their punishments, from a deterrent standpoint, ought to be the same.

The second reason is fairness. The only thing that serves to distinguish the two assassins is what they don’t control. But this is arbitrary. By hypothesis, they have both tried as hard as they could, and done whatever they could, to kill their intended target. To base the difference in their punishment on something they couldn’t control, e.g., whether or not a bird flies in front of their bullet, foiling the assassination attempt, is irrational, in the same way punishing people more harshly for killing during a full moon would be irrational. What we can’t control, we shouldn’t be punished for.

So what can be said in favor of the differences in punishment? Not much, I’m afraid. Here are two arguments which I think are non-starters:

(a) The epistemic argument. In the case of the successful assassin, we know that he intended to kill his target, because he not only did everything to prepare to cause the harm, he actually caused the harm! With the unsuccessful assassin, there remains room for doubt: because he missed his target (because of the bird), we might be tempted to ask, did he really mean to kill his target? And so the argument goes: with the successful assassin, we have a measure of knowledge, a measure of certainty, that we don’t have with the unsuccessful assassin (that is, there’s room for doubt).

Even supposing that it is hard to discern exactly what people intend to do (despite their actions to the contrary), this argument isn’t very strong. In fact, it concedes the point, that if we had a case where we could know the intentions of each assassin, then both would deserve the same punishment. If the claim is only an epistemic one, the opponent of different punishments for success and non-success, can grant it: pragmatically, he’ll say, sometimes we can only read intentions off results, and this is unfortunate. Still, in principle, we ought to punish bad intentions equally, even if only one of them actually causes harm.

(b) The consensus populi argument. Kadish suggests that the only possible justification for the differential in punishments is because people get madder when harm is actually caused, and so they want to punish actual harm-causings more harshly than only last-act attempted ones. This may be because, in a democracy, people ought to get what they want, or because when people don’t see justice served in the way they think it ought to be served, their outrage will spill over in socially unproductive ways.

As Kadish realizes, the argument isn’t very good. It’s more of a pragmatic claim, ultimately. Democracy ought to be constrained by considerations about what is just, and merely because a majority of people support a particular form of punishment doesn’t mean that punishment is correct. And although concessions may have to be made, these (if they involve injustice) ought to be temporary, at best. One might respond by saying something like: “well, once people have done something bad, there’s a certain baseline of the extent to which they should be punished, and, hey, if a majority wants to punish some crimes more than others because they caused harm, or were done on a Tuesday, or under a full moon, that’s fine. It’s even fair.” But I’m uncomfortable with any argument that permits a systematic irrationality (if that’s what it is) in punishing, even with democratic credentials. Nor do I think that if one commits a crime, all is fair in terms of sentencing: one doesn’t forfeit all of one’s rights after doing wrong.

I’m hesitant to offer my thoughts on what might justify the difference in punishments, if only because they are so raw. I also worry that they might collapse into one or another of the two arguments I’ve already labeled “weak.” But here goes (much of what follows is inspired by Peter Winch’s great essay on “Trying”). Consider the phenomenology of the two assassins. The one who’s successful in killing his intended victim, not only has had bad intentions, and engaged in harm-causing behavior, he’s also seen his will manifested in the world. The assassin who misses doesn’t see his will manifested in this way. It remains onlya possibility, not an actuality.

Why does this matter? There’s something about those intentions of ours that do get successfully implemented in the world (made concrete and made public) that seem so much more a part of us than do those intentions we merely have “inside” so to speak, no matter how far we’ve gone in trying to make our wills actual. There is still room for the unsuccessful assassin to say, after the bird flies in the path of his bullet, to say “Thank God, I missed.” But with the successful assassin, there is no such room: his crime has become real. There is no way to take it back; it is part of his self, his real, concrete, public, embodied self.

Can this difference be cashed out in a merely epistemic way, along the lines canvassed above? The successful assassin may just know, and have this knowledge presented forcefully to him, that he truly had the intention to kill another, because after all he intended to kill another and he succeeded. The unsuccessful assassin doesn’t know this, or at least he has room to doubt that he really did want to kill another. I’m not sure this is right. There seems to be (what I’ll call) an ontological difference between the two assassins, and not merely an epistemic one. The successful assassin has become something that the unsuccessful assassin hasn’t, and he has become something by virtue of the fact that his will has been actualized in the world. His intention has extended out into the world, in the way the unsuccessful assassin’s intention hasn’t.

I think what I’ve been saying about the two assassins tracks a more general truth about how we see ourselves, and the importance we give to results in understanding our own self-constitution. We are not merely isolated wills, thinking things, but embodied beings who interact with a world. Sure, it can be a matter of luck in what ways our wills get manifested in the world, but it still seems a fact that how we see ourselves depends crucially on what impact we actually do make on the world. This explains why we think the successful assassin is more wicked than the unsuccessful one – because we think that he has become evil in a way the unsuccessful assassin hasn’t. His self, by which I mean not merely what he has attempted to do, but what he has actually done, expands to include causing the death of another.

I also believe that it’s the case, and here I’m obviously treading into debates on moral luck, that things we don’t intend but are causally implicated in anyway also contribute to our self constitution, and not necessarily in a way that’s irrational. To accidentally hit someone with your car is to be shaped by that event, to see yourself in light of it. It seems crass of someone involved in such an accident to merely shrug it off, and say that’s what his insurance is for. Rather, it seems that there was some part of himself involved in it – because what our selves are is not reducible to our intendings only, but also encompass how we are related to what actually happens in our world.

To return to the question in criminal law. I want to say that there is a real phenomenological point that gets captured by saying the successful assassin deserves a greater punishment than the unsuccessful assassin, and that point involves how we see ourselves as embodied beings in a physical world. So what the criminal law does, I’m suggesting, is enact a certain way of looking at ourselves, a conception of ourselves as persons, to use Rawls’ language. We take ourselves to be more than what we merely will or try to do, but also (and importantly) what effects we have on the world we live in. The question when it comes to the law is, is it proper that the criminal law embody such aims? Or should it try to remain neutral among different ways of looking at ourselves in relation to the world (after all, it is plausible that some might look at themselves solely in terms of what they will)? If I’ve been at least partially persuasive in stating why the differences in punishments might seem apt, and I’m not entirely sure I have been, then this becomes the next question to ask.


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