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Does Attempted Murder Deserve Greater Punishment Than Murder? Moral Luck and the Duty to Prevent Harm Russell Christopher [email protected]

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Does Attempted Murder Deserve Greater Punishment Than Murder? Moral Luck and the Duty to Prevent Harm Russell Christopher Russell-Christopher@Utulsa.Edu University of Tulsa College of Law TU Law Digital Commons Articles, Chapters in Books and Other Contributions to Scholarly Works 2004 Does Attempted Murder Deserve Greater Punishment than Murder? Moral Luck and the Duty to Prevent Harm Russell Christopher [email protected] Follow this and additional works at: http://digitalcommons.law.utulsa.edu/fac_pub Part of the Law Commons Recommended Citation 18 Notre Dame J.L. Ethics & Pub. Pol'y 419 (2004). This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Articles, Chapters in Books and Other Contributions to Scholarly Works by an authorized administrator of TU Law Digital Commons. For more information, please contact [email protected]. DOES ATTEMPTED MURDER DESERVE GREATER PUNISHMENT THAN MURDER? MORAL LUCK AND THE DUTY TO PREVENT HARM RUSSELL CHRISTOPHER* INTRODUCTION Does the commission of a consummated offense deserve more severe punishment than an attempt to commit the same offense that fails? Almost every jurisdiction world-wide punishes the attempt that succeeds more severely than the attempt that fails.' For example, murder is punished more severely than attempted murder.2 But perhaps a majority of criminal law theo- rists disagree with this punishment differential for consummated and inchoate offenses (the "PD"). 3 In what has been termed "the standard educated view,"4 successful attempts deserve no more punishment than unsuccessful attempts-murder deserves * Assistant Professor of Law, The University of Tulsa College of Law. I am indebted to George Fletcher, Ken Levy, Peter B. Oh, and Maria Pagano for their criticisms of earlier drafts of this Article. Any errors are, of course, my own. 1. E.g., GEORGE FLETCHER, A CRIME OF SELF-DEFENSE: BERNHARD GOETZ AND THE LAW ON TRIAL 82 (1988) (" [T]he practice persists in every legal system of the Western world."); H.L.A. HART, PUNISHMENT AND RESPONSIBILITY'. ESSAYS IN THE PHILOSOPHY OF LAw 129 (rev.ed. 1988) (noting "the almost universal practice of legal systems of fixing a more severe punishment for the completed crime than for the mere attempt"); Joel Feinberg, Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments Against It, 37 ARiz. L. REv. 117, 119 (1995) (observing that "most legal practice throughout the world treats failed and successful attempts quite differently"). 2. See, e.g., JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAw 375 (3d ed. 2001) ("Almost always, the penalty for an attempt to commit a capital crime or an offense for which the penalty is life imprisonment is set at a specific term of years of imprisonment."). 3. See Michael S. Moore, The Independent Moral Significance of Wrongdoing, 5 J. or CONTEMP. LEGAL ISSUES 237, 238 (1994). 4. Id. at 238. Among the adherents to the "standard educated view" which Moore cites are as follows: JOEL FEINBERG, DOING AND DESERVING 33 (1970); HYMAN GROSS, A THEORY OF CRIMINAL JUSTICE 423-36 (1979); HART, supra note 1, at 129-31; Andrew Ashworth, Criminal Attempts and the Role of Resulting Harm under the Code, and in the Common Law, 19 RUTGERS L.J. 725 (1988); Lawrence Becker, Criminal Attempt and the Theoy of the Law of Crimes, 3 PHIL. & PUB. AFF. 262 (1974); Stephen Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. PA. L. REV. 1497 (1974). 420 NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY [Vol. 18 no more punishment than attempted murder. These critics of the PD (the "Critics") argue that whether a result issues from the performance of an act is outside the control of the actor and is merely a matter of luck.5 An actor should not be responsible for that which is outside the control of the actor and which is a mat- 6 ter of luck. Thus, whether a prohibited result occurs cannot be a part of, or increase, an actor's deserved punishment. As a result, Critics contend, insofar as the PD is based on an actor's deserved punishment, and not on consequentialist concerns,7 the PD is 5. Though a defender of the PD, Michael Moore concisely illustrates the Critics' position: It cannot matter to an offender'sjust deserts whether the wind, a bird, or a quantum shift moved the bullet that an offender sent on its way, intending to kill another, for these causal influences are wholly beyond the control of the offender. What he can control is whether he intends to kill and whether he executes that intention in a volun- tary action of moving his finger on the trigger; all the rest is chance. The offender deserves to be punished only for factors he can control, not for chance events he can't control. Moore, supra note 3, at 239. 6. See, e.g., HART, supra note 1, at 129-31; Feinberg, supra note 1, at 118-19. 7. There may be a persuasive consequentialist or utilitarian basis for pun- ishing an attempt less than the completed offense. Jeremy Bentham's utilita- rian theory of punishment requires that there be increasingly severe punishment at each successive stage of a criminal's course of conduct. JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 168 (J.H. Burns & H.L.A. Hart eds., Oxford Univ. Press 1996) (1781) ("The punishment should be adjusted in such a manner to each particular offence, that for every part of the mischief there may be a motive to restrain the offender from giving birth to it.") (emphasis omitted). For example, according to Bentham, the punishment for "a man's giving you ten blows" must be greater than the punishment for merely five blows. Id. Otherwise, after already giving five blows, an assailant "will be sure to give you five more, since he may have the pleasure of giving you these five for nothing." Id. Applying Bentham's require- ment to the punishment of, for example, murder and attempted murder, the punishment of murder must be greater to provide a disincentive to commit murder after a criminal is already liable for attempted murder. If they are pun- ished the same, an actor who has attempted to kill, but has failed, would have no disincentive not to try again. This may be "[t]he best utilitarian argument for lesser punishment of attempts." DRESSLER, supra note 2, at 383. While both Defenders and Critics of the PD may well concede this consequentialist argu- ment, the debate in the literature focuses more on whether there is a nonconse- quentialist basis for the PD. See Leo Katz, Why the Successful Assassin Is More Wicked than the Unsuccessful One, 88 CAL. L. REv. 791, 792 (2000) (noting that although there may be a consequentialistjustification for the PD, "the real chal- lenge" is to furnish a nonconsequentialistjustification). That is, apart from the good or bad consequences of the PD, does the unsuccessful attempter deserve less punishment? 2004] MORAL LUCK AND THE DU'TY TO PREVENT HARM "arbitrary,"' "illogical,"9 and "irrational."1 Defenders of the PD (the "Defenders") reply that we are responsible for the results of our actions and results do matter to our desert even if they are 1 outside our control and are subject to the caprice of luck. The clash between these opposing views is part of the larger issue termed the problem of "moral luck:" 2 whether, and to what extent, matters outside the control of an actor and subject to chance and luck may nonetheless be relevant in assessing an actor's moral and legal desert. 3 The debate has produced an enormous literature with each camp unable to convince the other.14 The intractableness of the debate stems from the differ- ent advantages each side enjoys. On the side of Defenders is the nearly universal intuition, embodied in nearly every legal juris- diction, that results do, in fact, matter. On the side of the Critics is the seemingly unimpeachable argument from principle that results are outside our control and a matter of luck for which we are not responsible and do not deserve to be punished. While Critics concede they cannot account for our intuitions and admit 8. Feinberg, supra note 1, at 118 (maintaining that greater punishment for completed offenses than attempts is "more arbitrary than rational"). 9. HART, supra note 1, at 130. 10. Sanford Kadish, The CriminalLaw and the Luck of the Draw, 84 J. CrM. L. & CRIMINOLOGY 679, 695 (1994) (referring to the harm doctrine-that com- pleted offenses deserve more punishment than attempts-as "an irrational doctrine"). 11. See, e.g.,GEORGE FLETCHER, RETHINKING CRIMINAL LAW 472-83 (1978); Michael Davis, Why Attempts Deserve Less Punishment than Complete Crimes, 5 LAw & PHIL. 1 (1986); Katz, supra note 7; Moore, supra note 3; Paul H. Robinson, Some Doubts About Argument by Hypothetica4 88 CAL. L. REv. 813, 813 (2000). For dis- cussion of the various arguments marshaled to support the PD, see Feinberg, supra note 1, at 122-31; Kadish, supra note 10, at 684-95; Moore, supra note 3, at 240-52. 12. The term moral luck was perhaps first coined by Thomas Nagel and Bernard Williams. See Thomas Nagel, Moral Luck, in MORTAL QUESTIONs 24, 26 (1979) [hereinafter Nagel, Moral Luck]; BERNARD WILLIAMS, Moral Luck, in MORAL LUCK: PHILOSOPHICAL PAPERS 1973-1980, at 20 (1981). Nagel himself later credited Williams with originating the term. THOMAS NAGEL, OTHER MINDS 167 (1995). For an excellent collection of articles addressing the various aspects of moral luck, see MORAL LUCK (Daniel Statman ed., 1993). 13. Nagel, Moral Luck, supra note 12, at 26 ("Where a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be called moral luck.").
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