Is trying to kill somebody just as bad as killing somebody?

2012-01-07 (Saturday) § 7 Comments

Do you have a harsher moral judgment for someone who attempts murder and succeeds than for someone who attempts it and fails? Do you think the law should punish a successful murderer more harshly than an attempted one? If so and your moral judgment of both is the same, how do you explain the discrepancy?

Here’s my answer: I do have the same moral judgment of both, but I favor some differences in how the law treats them.

I think criminal law should have two main ends:
1) to prevent repetition of offenses and
2) to restore losses to victims. (I have a few additional principles to narrow down how those ends are pursued, but those are the ends I endorse.)

Retribution, i.e. inflicting suffering on offenders commensurate to the suffering they’ve caused, should play no role in the law in my opinion.

#1 should work the same way for both successful and attempted murderers, or for any criminals. Both have given the same evidence of the likelihood that they’ll commit future offenses.

#2 will sometimes be inapplicable in the case of murder, since we have no way to resurrect the dead. But a murder does inflict other losses besides the death itself on the survivors of the deceased (such as lost income from a financial provider). Some of these will be amenable to restitution at the offender’s expense. For that end of criminal law, different treatment of successful vs. attempted murderers is likely to be justified.

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§ 7 Responses to Is trying to kill somebody just as bad as killing somebody?

  • Am I right in thinking that you don’t think there should be any lesser length of gaol term for an attempted murder than for a completed one? Criteria 2 seems only to contemplate financial restitution.

    Also, I’m not sure if you looked up the contemporary aims of criminal sentencing, but I’d be interested to hear your thoughts on them (considering that they reflect the way people are actually sentenced now). Here there are five, and only five. They’ve been around for a long time and are probably the same in the USA as well.

    – just punishment– to punish the offender to an extent and in a way that is just in all of the circumstances
    – deterrence– to deter the offender (specific deterrence) or other people (general deterrence) from committing offences of the same or a similar character
    – rehabilitation– to establish conditions that the court considers will enable the offender’s rehabilitation
    – denunciation– to denounce the type of conduct engaged in by the offender
    – community protection– to protect the community from the offender

    I assume that when you say “prevent repetition of offences” you are talking about both deterrence and community protection (which are two different aims, for the same result). I’d also guess that you disagree with “just punishment” – although courts are always at pains to distinguish it from “retribution”, it looks like the definition of “punishment” in the sentencing aims is the same as your definition of “retribution” in this post (ie. to cause suffering to the offender).

    You didn’t mention rehabilitation here, but you said on Facebook that you strongly support it (I wonder if there’s a better way to integrate your Facebook threads with their relevant blog posts?). I should also have mentioned that for young offenders, rehabilitation is always the principal consideration in sentencing.

    Restitution is not typically seen to be an aim of the criminal law. It does happen, but usually in a separate process.

    And just to give the complete picture, here is a list of sentencing factors. The aims I mentioned above, plus the factors here, are what judges have to weigh up every time they pass a sentence.

    – the maximum penalty for the offence
    – current sentencing practices
    – the nature and gravity of the offence
    – the offender’s culpability and degree of responsibility for the offence
    – whether the crime was motivated by hatred or prejudice
    – the impact of the offence on any victim of the offence
    – the personal circumstances of any victim of the offence
    – any injury, loss or damage resulting directly from the offence
    – whether the offender pleaded guilty to the offence
    – the offender’s previous character
    – the presence of any aggravating or mitigating factors

    • paginavorus says:

      Yeah, right now I haven’t found a justification that I endorse for giving longer prison terms to successful murderers than to attempted ones. Jail time doesn’t restore any loss to anybody, so criterion 2 doesn’t apply to it.

      I haven’t looked up the contemporary aims of criminal sentencing. I think how the law actually works isn’t directly relevant to this phase of the question – how we want the law to treat offenders and what aims we want it to serve. But it’s worth knowing something about the legal theory that courts actually operate on, so thanks for giving me some preliminary education on it. After reading your summary, I see that in wanting restitution to be an aim of criminal law, I’ve either conflated the aims of criminal and civil law, or implied a desire to merge the civil aspects of criminal offenses against persons into criminal law. That probably carries consequences that haven’t occurred to me yet, but I’ll go with it for now and see where it leads.

      Of the actual aims you listed, I think I endorse only deterrence, rehabilitation, and community protection. It looks like you’re right that “punishment” is what I mean by “retribution”. I don’t want criminal law to aim for that and I don’t see why it should unless you believe in some kind of cosmic balance where one person’s suffering can compensate for another’s. I’m not too into the aim of denunciation either. In general I’m suspicious of the idea of using the law to make statements about right and wrong instead of to produce desired outcomes. I say “instead of” deliberately – I think those two goals easily run into conflict with each other.

      Could you explain further the difference between specific deterrence and community protection, and also between general deterrence and denunciation?

      I’d also like to find a way to integrate Facebook comments into this blog. There are some ways already available, but none that I’ve found work quite the way I want. I want comments both here and on Facebook to form a single stream and to be both visible and accessible in both places.

      • My understanding is that specific deterrence is the aim of making the culpable individual say “I won’t do that again because the punishment isn’t worth it”, while the idea of community protection is that someone will not physically be able to commit crimes while they’re in gaol. Life sentences, for example, are all about community protection but not really about specific deterrence, while a hefty fine may be aimed at specific deterrence but has nothing to do with community protection.

        General deterrence is the idea that other people will say “I won’t do what s/he did, because the punishment s/he did isn’t worth it”.

        All three of those are purely pragmatic. Denunciation, I think, has more of a moral flavour – it’s the idea that the community’s disapproval should be expressed in the punishment too. I’m not really clear on the distinction between that and ‘just punishment’ – criminal law is not my area.

  • jasonburbage says:

    I really like subjective measurements of suffering as a moral metric; I would just apply them to acts (not results) and perform some calculation, as I described earlier. I want to say that it would be something like this:

    First, I suppose that the person committing the act had earnestly considered a reasonable amount of the current, existing knowledge about the act and what effects it might have. (If I stab someone, how likely are they to actually die, stay alive and in pain, etc.)

    With that knowledge, what would the actor estimate to be the probabilities of each “moral value” (as I described earlier) of suffering they might either cause or prevent when they commit the act?

    Most likely this is some kind of curve. The x axis is the total moral value of suffering experienced by all involved, and the y axis is the probability that the actor would estimate that their act has of resulting in that value.

    Then, the total moral value of the act is a definite integral over the entirety of this curve.

    To your initial query, then, my answer would depend on how much the killers would be capable of understanding about the manner of killing, the people attempting the killing, the people being killed, and other related factors. But, if all of those factors were equal (identical circumstances, but one results in death while the other does not), then I believe both are equally immoral.

    • paginavorus says:

      Interesting idea about the definite integral. Didn’t you mean to post this under one of my earlier entries?

      • jasonburbage says:

        No, I was trying to directly answer the question you posed at the beginning of this entry.

      • jasonburbage says:

        I’m sorry, I guess I didn’t really answer all of your questions.

        I don’t have a strong sense for the purpose of criminal punishments; after reading the list Daniel posted, it seems that community protection falls under deterrence, and denunciation is implied with just punishment. So, in establishing a punishment I personally would have 3 goals: Just Punishment, Deterrence, and Rehabilitation. Given that, I can’t see any reason that two different people who committed the same act under the same circumstances should be punished differently, even if the two outcomes were different.

        I do think punishments for “accidental” crimes such as involuntary manslaughter are usually too harsh, which I suppose is a reflection of my tight coupling of morality and intent.

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