Punishment and Harm

A Credit/Extra Credit Paper

Drawing on the reading and your own sound reasoning and good judgment, answer the question and/or questions on the following pages, think of the most powerful objections to your case, and respond to them. In thinking of objections to your argument, think of the best possible objections that someone on the other side might be able to come up with, i. e., give yourself a hard time. If you can respond to the other side at its strongest rather than at its weakest point, that can only help to strengthen your own opinion and make it that much more persuasive. In defending your position, offer what you believe are the most principled arguments you can make.

The paper will be graded pass/fail or credit/no credit, although it will be possible to receive a "high pass" or "extra credit." If you elect to write a paper for "credit" or a paper that will "pass,"the paper (your paper) must show some signs of life, some signs of thinking, of thought. In concrete terms this means you need to make an argument for or against one side or the other, offer some powerful objections to your argument, and respond to them.

If you receive "credit" on the paper (your paper), the percentages for weighing the remaining three papers will be as follows: 40% for your strongest essay, 30% for your next best effort and 20% for the one which is least successful of the three. Keeping a journal and/or participation will count 5% and the quiz will count for the remaining 5%.

In order to receive a "high pass" or "extra credit," which could improve any one of your graded papers in the course by a third of a grade, thus turning, for examples, a B (3.0) into a B+ (3.3) or an A- (3.67) into an A (4.0 ), you must answer two additional questions.

What theory of punishment underlies and best supports your view for or against punishing successfully completed attempts more severely than failed attempts (explain as best you can how the theory of punishment fits your view)? And you must offer an argument for or against Rehnquist's position expressed in his writing of the majority opinion in Payne v. Tennessee allowing Victim Impact Evidence during the sentencing phase of Death Penalty cases. Do you share Rehnquist's view? Do you disagree with it? If so, why? If not, why not? Think of a strong objection to your position vis-a-vis the Rehnquist view and respond to it.

"CREDIT" PAPERS that aim to receive simply a "pass" should be between three and five pages in length, or longer if you wish. "EXTRA CREDIT" PAPERS or PAPERS that aim for a "HIGH PASS" should be an additional three to five pages in length or (again) longer if you wish. Papers are due on Monday, March 13th, in class..

PLEASE NOTE: Papers are due on Monday, March 13th, in class.


The Criminal Law and the Luck of the Draw

Consider the following:

(1) Alice comes home from work and discovers that John has left her. She drinks a few beers, loads John's shotgun, the one he used to use to go duck hunting, steps out onto the back porch, and fires the gun over and over again until she feels (a bit) less angry. She does some damage to a bunch of trees, but little else.

(2) John comes home from work and discovers that Alice has left him. He drinks a few beers, loads his shotgun, the one he usually takes with him to go duck-hunting, steps out onto the back porch, and fires several rounds until he stops crying. The following day, the body of a homeless man, call him "Henry," is discovered at the base of a tree into which John has fired his shotgun. His shooting spree has damaged a bunch of trees, but he has also caused harm; he has killed Henry.

In most legal jurisdictions throughout the world John would be punished more severely than Alice.


A central problem in the theory of punishment is to explain why we distinguish between the two cases and cases like them, why we treat successful and failed attempts differently. Why punish John more severely than Alice?

"We are accustomed to punishing criminal attempts" as David Lewis notes, "much more severely if they succeed than if they fail. We are also accustomed to wonder why."

Why indeed? "What sense can we make of . . . [some]one that puts a victim at risk of harm and fails only by luck to do actual harm?"

(3) Dee takes a shot at his enemy, and so does Dum. They both want to kill; they both try, and we may suppose they try equally hard. Both act out of malice. Without any shred of justification or excuse. Both give us reason to fear that they might be ready to kill in the future. The only difference is that Dee hits ad Dum misses. So Dee has killed; he is guilty of murder, and we put him to death. Dum has not killed; he is guilty only of attempted murder, and he gets a short prison sentence.


"Dee and Dum were equally wicked in their desires. They were equally uninhibited in pursuing their wicked desires. Insofar as the wicked deserve to be punished, they deserve it equally. Their conduct was equally dangerous: they inflicted equal risks of death on their respective victims. Insofar as those who act dangerously deserve to be punished, again they deserve it equally. Maybe Dee's act was worse than Dum's act. Just because of Dee's success; but it is not the act that suffers punishment, it is the agent. Likewise, if we want to express our abhorrence of wickedness or of dangerous conduct, either exemplar of what we abhor is fit to star in the drama of crime and punishment.

"Further, Dee and Dum have equally engaged in conduct we want to prevent by deterrence. For we prevent success separately attempts by preventing attempt generally. We cannot deter success separately from deterring attempts, since attempters make no separate choice about whether to succeed.

"Further, Dee and Dum have equally shown us that we might all be safer if we defended ourselves against them; and one function of punishment (at any rate if it is death, imprisonment, or transportation) is to get dangerous criminals off the streets before they do more harm.

"So how does their dfferent luck in hitting or missing make any difference to considerations of desert, expression, deterrence, or defense? How can it be just, on any credible theory of punishment, to punish them differently?" (See David Lewis, "The Punishment That Leaves Something To Chance" in The Philosophy of Law book, edited by Feinberg and Coleman, pp. 650-57)

But surely these reflections fall wide of the mark, cannot be right. We punish John more severely than Alice for good reason. He caused more harm than she did. No?

And Dee and Dum? Surely there are good reasons for punishing Dee more severely than Dum. Surely! Dee does more damage than Dum. No? Someone who commits murder surely deserves to be punished more than someone who attempts murder.

But not everybody thinks this. Some think that "successful attempts deserve no more punishment than unsuccessful attempts," that "murder deserves no more punishment than attempted murder." They argue that a result that issues from the performance of an act outside an actor's control is merely a matter of luck and an actor should not be responsible for that which is outside his or her control. Therefore if a harm results from an actor's conduct, the harm cannot be a part of or increase an actor's deserved punishment:

(4) Yesterday Charles fired a gun at a man, to kill him; Charles' intended victim was wearing a bulletproof vest, so Charles did not kill him. Today David fired a gun at a man, to kill him; David's intended victim was not wearing a bulletproof anything, so David did kill him. David murdered a man, and Charles only attempted murder, but . . . David acted no worse than Charles did - for after all, it was just bad luck for Charles that his intended victim was wearing that vest, and thus nothing that Charles can take any credit for. (See Judith Jarvis Thomson, "The Decline of Cause" in The Philosophy of Law book, edited by Feinberg and Coleman, pp. 642-49).

But Judith Thomson is not altogether happy with the view that "it cannot matter to an offender's just deserts whether the wind, a bird, or a quantum shift moved a bullet that he or she sent on its way, intending to kill another, for these causal influences are wholly beyond the control of the offender." Indeed she believes that cases such as Summers v. Tice and Sindell v. Abbott Laboratories, reprinted in The Philosophy of Law book, pp. 682-85 and pp. 686-700. "were very rarely won until recently" in part because of an "increasing dismissiveness about causality [harm and results] that can be seen in legal theorizing (p. 643)."

Some, however, merely note that every jurisdiction world-wide punishes the attempt that succeeds more severely than the attempt that fails and think that by identifying this common practice is sufficient to make the argument in favor of taking the results of a defendant's conduct into account in determining his or her just deserts.

In writing the opinion for the majority in Payne v. Tennessee (1991) Chief Justice William Rehnquist appears to do just this, to state the case rather than make it, noting that harms that result from our actions that lie outside our control and are subject to our bad luck do play a role in any number of cases in determining the severity of a defendant's punishment. As Rehnquist notes :

The assessment of harm caused by the defendant as a result of the crime charged has . . . been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment. Thus, two equally blameworthy criminal defendants may be guilty of different offenses solely because their acts cause differing amounts of harm. "If a bank robber aims his gun at a guard, pulls the trigger, and kills his target, he may be put to death. If the gun unexpectedly misfires, he may not. His moral guilt in both cases is identical, but his responsibility in the former is greater." Booth, 482 U.S., at 519 (SCALIA, J., dissenting). The same is true with respect to two defendants, each of whom participates in a robbery, and each of whom acts with reckless disregard for human life; if the robbery in which the first defendant participated results in the death of a victim, he may be subjected to the death penalty, but if the robbery in which the second defendant participates does not result in the death of a victim, the death penalty may not be imposed.

Payne v. Tennessee (1991)

To return to the John and Alice and scenarios (1) and (2) above, there is a sense that some legal theorists share that views Alice and John's actions to be the same, even though the results from their respective actions are different.

Both behave recklessly and neither intend to kill another human being, but the penal codes of most states will permit John to be prosecuted for manslaughter and Alice to be charged, at most, with reckless conduct. Despite conventional wisdom that John "did" much the same thing as Alice, he will face a much more serious punishment.

Is this reasonable or fair?

Make a case for or against punishing John more severely than Alice, think of several objections to your argument, and respond to them. In the course of making your argument, consider the cases, some real, some hypothetical, identified above and see if you cannot use them as test" cases, weaving them into a coherent narrative of punishment, blameworthiness, harm and result..


Prepared: February 16, 2006 - 5:02:29 PM
Edited and Updated, February 16, 2006

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