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Philosophy 22B

Bernhard Goetz and the Criminal Law

A few days before Christmas, 1984, a slightly built man named Bernhard Goetz entered a subway car in New York City. He sat down next to four black youths. They are a somewhat boisterous lot and the 15 or 20 other passengers have moved to the other end of the subway car. One of the four, Troy Canty, asked Goetz how he was doing. Then Canty and perhaps one of the others asked Goetz for five dollars. Goetz took out a .38 caliber Smith and Wesson revolver and fired four shots at each of the four youths. Then he walked over to one of them who was seated in the two-seater next to the conductorıs cab and said "You seem to be all right; hereıs another" or "You seem to be doing all right; hereıs another," and fired a fifth shot into his body. Cabey was turned away from Goetz and the bullet entered his left back-side, severing his spinal code. A passenger pulled the emergency cord. The train screeched to a halt and many of the passengers fled onto the tracks. A conductor approached Goetz and asked him if he was a cop. When it became apparent that he was not, the conductor asked him for his gun. Goetz refused to hand it over, walked quietly to the front of the car and out the door. He jumped to the tracks below and disappeared into the dark of the subway tunnel. Three of the young kids lay bleeding on the floor of the train and Darrel Cabey sat wounded and paralyzed in the end seat.

About a week later Goetz walked into a police station in Concord, New Hampshire and gave himself up. He was turned over to New York authorities on January 3rd, 1985. His eventual trial raises a number of difficult issues: Did Goetz intend to kill the four youths? Could he be convicted of attempted murder or did he act in self-defense? Did he endanger others, i. e. other passengers, unjustifiably? Just how many "acts" did Bernhard Goetz commit? Should he be punished? And these questions prompt larger ones: Under what conditions should a person be held responsible for his or her acts? If a person tries but fails to commit a crime, should he or she be punished as severely as if he or she had succeeded? In the issues posed by the Goetz case, there lurks a clash between two rival approaches to the understainding of the aims and purposes of the criminal law.

How Can One Action Lead to such a Wealth of "Crimes"?

Bernhard Goetz was indicted for a variety of crimes, 10 offenses in all. A single volley of shots produced 9 felony charges, one charge of attempted murder and assault against each of the four victims and an additional charge of reckless endangerment. Goetz was also charged with the illegal possession of a weapon. It makes sense to charge Goetz with criminal wrongdoing with respect to each of the four victims, or so it might seem. To do so recognizes their distinct humanity; each has suffered a harm; and each has experienced a loss. But how can one action produce such a wealth of crimes?

If we forget for a moment the multiple counts, Goetz was accused of having committed at least four separate and distinct crimes, all arising out of his having used his gun that morning: possessing a loaded gun in public, recklessly endangering the lives of others, criminal assault, and attempted murder. Each "crime" was based on one or another aspect of Goetzı conduct together with his state of mind at the time of the incident.

What Goetz did can be described in a number of overlapping ways. We could describe his action as simply as "shooting in a subway, " and then we can go on to wonder how "shooting in a subway" can lead to 10 separate offenses. But more fundamentally why and under what circumstances should an act of shooting be treated as a crime at all?

Conflicting Conceptions of Criminal Wrongdoing

There are two general approaches embedded within our legal system to understanding the aims and purposes of the criminal law: the traditional approach and a new, more contemporary approach. The two approaches conflict and the conflict turns on the basic question: Why should consequences (actual harm done) matter in defining a criminal offense?

The traditional approach focuses on the actual harm suffered by the victims in defining the crime of the offender. The suffering of the victim demands a response. From this perspective, the most important aspect of Goetzı crime was his actually injuring the four youths. The greater the injury, the greater the crime. The prosecutor in the Goetz case returned repeatedly to the permanent disabilities Goetz inflicted on Darrell Cabey. As Waples stressed in his opening statement to the jury, Cabey could now "look forward to the rest of his life . . . living in a wheel chair."

The Simpson Trial and the Significance of Suffering

In the Simpson trial we have already seen prosecutor Marcia Clark emphasize the suffering of the victims. In her opening statement to the jury she stressed that justice requires that attention be paid to the suffering of the victims, and if the facts warrant, that they, the members of the jury, must adjudge O. J. Simpson guilty, not merely for antiseptically violating some rule of the legal system, but for the harm he inflicted on the bodies and dignity of Nicole Brwon and Ron Goldman. Marcia Clarkıs use of photographs, showing the jury the actual wounds suffered by Nicole Brown and Ron Goldman, her nearly decapitated body and his multiple stab wounds, was intended to show jurors the actual harm that O. J. Simpsonıs actions alledgedly caused and, if he is guilty as the prosecution insists he is, to bring home to the jury that his guilt consists primarily in his having brought the lives of these two young people to a brutal end. Whatıs so terrible about this crime is the horrible suffering that the victims had to endure. Yes, yes, we punish criminals because we wish to deter crime in the future. But we also punish because we need to restore the victimsı (and their relativesı) faith in themselves and the communityıs faith in the willingness of society to make the perpetrator "pay" for the suffering he has caused.

The Act Itself v. Harm Done

The modern approach concerns itself with the act itself ‹ and the degree to which the actor was able to control what he did ‹ rather than with the actual harm caused. It is a matter of chance, the modern approach opines, whether a shot intended to kill someone actually hits its target or not. As the prosecutor in the Goetz case argued, it was a matter of chance that one of the shots fired by Goetz did not injure an innocent bystander. In deed, if I shoot at you and miss, why should the absence of a victim mitigate the seriousness of what I have done? Arenıt I just as guilty of endangering your life, putting you at risk? Rather than the harm done, the modern approach takes the act itself as the core of the crime. According to the modern way of thinking, we should look at the action first and the harm as a contigent consequence of the action. Some wish to go so far as to insist that the harm that is caused is totally irrelevant. All that matters or that ought to matter in holding someone responsible for what they have done, are the acts within oneıs control and one cannot control a bullet once it leaves the chamber of a gun.

Different Charges and Competing Theories of Punishment

The modern approach to criminal wrongdoing is reflected in the charges brought against Goetz for attempted murder and reckless endangerment. The traditional approach, focused, as it is, on the suffering of the victim, the actual harm done, is reflected in the charges brought against Goetz for criminal assault. Each view, too, takes a different stance with regard to the aim and purpose of punishment. The traditional approach is closely linked to a retributive conception of the aim of punishment. In contrast, the modern view sees the point of punishment as an effort to punish wickedness or to influence human conduct. The actorıs personal culpability, his blameworthiness, is captured in his actions ‹ not in the accidents of nature that determine the consequences of his actions. There is nothing wicked about the way things fortuitously turn out. And if part of the point of punishment is to deter future offenders, the only conduct that can be deterred are those actions that are within our control. The modern approach is therefore closely allied with preventive theories of punishment.

Click HERE to read the decision in PEOPLE v. GOETZ (1986) .

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