Is the gap between the penalties meted upon those who attempt and complete a criminal act, and those who attempt but fail to complete their crime due to luck, justified?
This paper is concerned with the gap between the penalties imposed upon those who attempt and complete a criminal act and those who attempt but fail to complete their crime when ceteris paribus the only difference between the two actors is that of luck. It explains and explores both the utilitarian and reformist positions on this matter, ultimately concluding that due to moral luck and the fact that reforming our sentencing guidelines would be costly both economically and in terms of liberty, the current gap between sentences is justified and indeed serves a valuable purpose as a communicatory device.
“If anyone has a purpose and intention to slay another who is not his enemy, and whom the law does not permit him to slay, and he wounds him, but is unable to kill him, he who had the intent and has wounded him is not to be pitied. He deserves no consideration but should be regarded as a murderer and tried for murder.”
(Plato, 2008, p.223)
It is the case within English law and indeed all common law jurisdictions, that those who fail in their attempts to commit a crime almost always attract a lighter jail sentence or penalty than those who succeed in their attempts to commit a similar crime. The question of why this is the case, of why completed crimes have higher penalties than failed attempts, and whether such a difference in penalty is justified, can be traced back at least to Plato’s Laws and is, according to Joel Feinberg (2003), a question that every genuine philosopher concerned with the law should attempt to address at some point during his career. This difference however seems relatively unproblematic at first glance. For, mostly the difference in sentence can be explained and defended via reference to differences in the conduct of the actor who attempts the crime, that “very often depend upon differences in the intensity of intent or awareness” (Schachar, 1987, p.12). However, in cases where there is no difference in intent, where two criminal actors are similar in all relevant respects, barring the fact that one manages to complete his crime and the other, through sheer bad luck (on his part, not his intended victims) fails, the question of why and if one is deserving of a harsher punishment than the other needs to be addressed.
This paper shall thus address the question of whether failed attempts at a criminal objective should be punished to the same extent as completed crimes, when, ceteris paribus, the only difference between them is that of luck, arguing that our current sentencing practices regarding this issue are more desirable than reform. It shall look first to two different conceptions of the aims of punishment, noting that for those who subscribe to utilitarianism this question may not be inherently troubling. For those however, who subscribe to a broadly retributivist conception of punishment, this question is far more problematic as there seems to be no reason not to punish two criminal actors equally if the only difference between them concerns the effects of luck on the consequences of their actions. It shall then outline and discuss the ‘reformist position’ which holds that in cases where criminal acts fail for no reason other than the bad luck of the criminal agent, our sentencing guidelines should be reformed and the criminal should be subject to the same penalty that would have been meted upon him had his act been successful.
The Proper Aim of Punishment: Deterrence or Desert?
One can see from looking at various treatments of the question at hand, that the problem of what Schachar (1987) terms “the fortuitous gap” between criminal law and morality is most clearly illustrated via the method of a thought experiment, typically involving one crime or two identical crimes and two very different outcomes. Thus, for reasons of style as well as convention, this paper too shall illustrate the issue via thought experiment:
Adam (A) is a man with a grudge and a brand new .40 Smith and Weston pistol in his hand. He has decided to kill Brian (B), his work colleague and once best friend because B is having an affair with his wife. He takes aim and carefully shoots B in the chest, killing him immediately. A is arrested, pleads guilty to murder and is sent to prison to serve life. Twin Adam (TA), is a man similar in all relevant respects to A. He has also decided to kill Twin Brian (TB), his work colleague who is having an affair with his wife. He takes aim at TB’s chest and pulls the trigger with the express purpose of killing him immediately. However, unbeknownst to TA, TB is wearing a bulletproof vest and TA “therefore escapes guilt for murder since there can be no murder without someone dying as its consequence.” (Feinberg, 2003, p.78) He is arrested, tried for attempted murder and because the life sentence is not mandatory is sentenced to a much lesser period of imprisonment, of say five years and will serve perhaps even less due to the current problem of overcrowding in prisons.
Whether or not one finds it difficult to justify the gap between the sentences meted upon A and TA in the example outlined above, tends to depend upon one’s conception of what exactly the proper aim of punishment is supposed to be, which in turn hinges upon one’s conception of morality. It is thus not unsurprising to note that for some, the question of why we punish failed attempts less than those that are successful, is not inherently troubling. If one holds, as does the utilitarian, that in judging the rightness or wrongness of a particular act or law the only thing that matters is its consequences, then the fact that both A and TA possessed the same murderous intent is relatively unimportant when deciding the length of their respective sentences. For, whether or not the gap between their punishments is justified depends upon the extent to which such penalties fulfil the proper aim of punishment, which is, for the utilitarian; “to prevent, in as far as it is possible, and worth while” (Bentham, 1970, p.165) criminal offense in order to “augment the happiness of the community” (Bentham, 1970, p.13). When determining the sentences to be imposed upon actors such as A and TA the utilitarian must then look first to the extent to which equal/unequal punishments will serve to prevent crime, but also to their cost-effectiveness by asking whether the deterrent effects of punishing A and TA equally will justify the jump in public expenditure from a system of unequal punishment (Duff, 1996, p.122).
Certain utilitarians might thus suggest that there is no need to attach any punishment to unsuccessful attempts. For, we can relatively safely assume that those who go so far in their criminal attempts as do A and TA, intend to succeed and are thus undeterred by the maximum penalty attached to murder and will so too be undeterred by a penalty attached to attempts. Those who subscribe to such a view will note that as punishing failed attempts will provide no extra force to the deterrent force of punishment we may as well save public funds and prison space and set TA free. This view however does not stand up to scrutiny, as it is highly likely that punishing attempts may serve to deter the would-be murderer from further attempts as it “may cause him to attach more weight to the laws threats” (Hart, 1968, p.129). Indeed, such a policy may also discourage those who are not entirely confident in their criminal abilities but who are willing to try if they know that should they fail, they will not be punished. It may also deter those who believe that if they are successful in their crime they are likely to escape conviction, but are more likely to be caught should they fail (Hart, 1968, p.129) as they may be less willing to risk being caught and punished. There are thus good utilitarian reasons to punish both A and TA in terms of deterrence but it does not necessarily follow that both should be punished equally. For, although one could argue that the harsher the punishment is for failed attempts, the less people will be willing to risk their liberty by attempting murder and therefore the greater the general deterrent force of the law will be, one might also note that it may be useful to offer the orchestrator of a failed attempt, such as TA some kind of incentive not to pull the trigger once again or to slit TB’s throat.
The utilitarian then, concerned with consequences, can argue that because the objective of punishment is that of general and individual deterrence there are good reasons to punish TA less than TB although it might be argued that whilst a lesser sentence is justified, five years is perhaps too short a sentence. However, although the utilitarian approach has distinct advantages such as the ability to justify a gap between the sentences meted upon A and TA and thus free up a large percentage of the public budget for use elsewhere, this approach comes with a price that most persons concerned with justice will be unwilling to pay. For, as the utilitarian determines the moral status of any particular act or law based on its consequences, he may, in certain situations, legitimately imprison an innocent man, set free a murderer or send a petty thief to jail for life if in doing so he will create a state of affairs that is strictly better.
With this in mind, and for a plethora of other reasons it is suggested that although deterrence is indeed a pleasing thing to see in the function of the criminal law, we must, when deciding how to punish criminals look first, not to the consequences of punishment, but to the moral guilt of the criminal actors themselves and thus determine the extent to which they deserve punishment with reference to this. The notion that punishment should depend on desert is an idea common to all retributive theories of justice as well as a great number of mixed theories that hold that “punishment is justified only if it is deserved for a past offense” (Duff, 1990, p.1). How exactly we measure the moral guilt and thus culpability of the criminal actor however, is a question over which there is a great deal of controversy, with some arguing that desert is based solely upon the intent of the criminal agent and others who argue that culpability should be determined via reference to both intent and actual harm.
Culpability and the ‘Reformist Position’
It is commonly held that of the two desert bases listed above intent is more useful in determining criminal desert than the amount of harm caused. Indeed, an approach to punishment that places more emphasis upon intent than upon wrongdoing itself is intuitive. For, anyone who read Steinbeck’s Of Mice and Men and cried for Lenny when he accidentally killed Curley’s wife whilst trying to stroke her hair, or felt a great injustice had been lifted after the Supreme Court ruled in the case of Atkins v. Virginia (2002) that the execution of the intellectually disabled for murder is unconstitutional, will know that intent is a vitally important factor when determining the extent to which someone should be punished for a crime. Indeed, in such cases where a highly intellectually disabled person has killed another and is thus imprisoned it may be meaningless to talk of punishment at all. For, such a person, although he has committed a crime, may not be held culpable and whilst we may imprison him out of concern for his own and the public’s safety, we do not blame him for that which has occurred, just as we would not blame the driver of train, which after being derailed during an unforeseeable earthquake killed a passer-by.
For those then that hold intent to be of paramount importance when determining the extent to which a criminal should be punished there seems, if we return to the case of A and TA, to be no valid reason to punish TA any less than A. For, both A and TA intended to commit the same crime for the same reasons and also went to the same lengths (pulling the trigger) in order to complete their attempt. After all, TA failed not because, at what to the best of his knowledge was his last locus poenitentiae, he had a change of heart and decided against killing TB. He failed because although he did all that would, in most circumstances, lead to TB’s death, luck, a factor completely beyond TA’s control and thus surely irrelevant to his culpability, intervened and saved TB’s life. With this in mind it is held by a certain number of distinguished philosophers such as Feinberg, Ashworth and Kadish that ceteris paribus, failed attempts and completed attempts at a criminal act should be punished equally and its proponents thus argue for reform in our sentencing guidelines. They argue that legal systems which allow lesser punishments for failed attempts do not seem committed to the ‘principle of proportionality’ which “requires that the severity of punishment be proportional to the moral blameworthiness of the offence” (Feinberg, 2003, p.78). For, in cases such as that of A and TA one can accuse the legal system that administers different sentences of arbitrariness, of basing the punishments of the two actors on nothing more than “luck, plain and simple” (Feinberg, 2003, p.78).
The view that luck should play no part in determining the rightness or wrongness of an act and that consequently allowing it a place within the criminal law belies arbitrariness can be seen in the moral philosophy of Kant. In his Groundwork for the Metaphysics of Morals Kant argued that luck should play no part in how we judge the rightness or wrongness of an act. That, in determining whether an act is morally praiseworthy or blameworthy we must look to the intention or the ‘will’ of the moral agent rather than the consequences of the act itself. Thus, if a man attempts a particular act for some specific end, and does so with all of the means at his disposal, yet fails through nothing but luck to achieve his objective, such a person is worthy of all the praise or blame that would have resulted should his intentions have reached their intended conclusion.
It is thus argued by those that hold the position outlined above, henceforth to be termed the ‘reformist position, that in order to remove the arbitrariness within the legal system we do away with the causal condition in so-called completed crimes. This would mean removing, for example, the necessity that death result from a murderous act in order for a criminal to be found guilty of murder and that perhaps instead of terming such acts as murder and attempted murder we term their acts as ‘wrongful homicidal behaviour’ (Feinberg, 2003, p.79) and punish like offences in a like manner regardless of their consequences.
Moral Luck, Justice and Fairness
Yet, although the notion that we should be morally responsible only for things that are within our control is intuitive, and thus so too initially is the reformist position, it does not necessarily follow that reforming our sentencing guidelines will help to encourage proportionality or non-arbitrariness within the criminal law. For we may ask, as does Moore (1994), as might those concerned with the problem of moral luck, why it is assumed, if the results of luck on the outcomes of our intended acts have no bearing on our culpability, that the effects of luck on our intentions, plans and choices do not serve to undermine intention as a basis for determining desert. The notion that luck is far more pervasive than is commonly assumed is seen most clearly in Nagel’s Moral Luck, in which he identifies four different types of moral luck. The first, resultant moral luck, is the type that the Kantian and the reformist attempt to negate when they argue that we should punish failed attempts and completed attempts equally in cases such as that of A and TA. The other three however, termed by Nagel as Circumstantial moral luck, constitutive moral luck and causal moral luck show that if we ignore the results of a criminal act, in determining the extent to punish a criminal we must also, if we seek non-arbitrariness in the criminal law, as the reformist purports that he does, purge from our judgements all of the effects of luck on our acts which Moore argues is a reductio ad absurdum argument, leading to the absurd conclusion that no one may be held responsible for anything (Moore, 1994, p.271).
To illustrate this point we may look to an example Nagel gives of the events of the lives of two men with similar characters. The first is an officer in a concentration camp, who, had the Nazi’s never come into power would not have been given such a telling opportunity to reveal his moral shortcomings, by becoming partly responsible for the deaths of six million Jews. The second man, although a German national, moved to Argentina on business in 1930 and thus had no hand in the Holocaust but had he not moved he would, having the same dispositions as the first man likely have played a similar role and may also have become an officer in a concentration camp (Nagel, 1979, p.26). Indeed, if the results of the experiments of Stanley Milgram (1974), regarding the tendency of humanity to unthinkingly obey the orders of an authority figure are even partly accurate one might note that if we were to attempt to discount all of the effects of luck when determining who should be punished, and for what crime, we might as well have placed the vast majority of humanity on trial at Nuremberg.
If we look again then, to the example of A and TA, we can see that whilst it is true that A and TA had no control over what happened to the bullet after they pulled the trigger, or of whether B and TB were wearing bullet proof vests it may also be argued that they had no greater a control over any one of the events which led to their being in the position to pull that trigger. We can thus note that there may be any number of men who if put in the same circumstances as A and TA would have done the same thing. Indeed, we may argue that there may be an even greater number who would, had, for example their brother not been shot by a gunman when they were a child leading them to hold a principled and lifelong anti-weapon stance, or their parents, having noticed their irrational and violent tendencies not placed them in therapy to remedy such characteristics, have, if placed in a similar situation, acted as A and TA did. Thus, in order to avoid losing the entire notion of moral responsibility altogether we must accept the fact that luck is simply too all pervasive to attempt to remove its effects from our moral judgements. Consequently, we must reject the position of the reformist. For, his rejection of the role of resultant luck but not other types of luck as determinants of desert is unstable, as “one cannot find a principled place to draw the line at refusing to accept moral luck” (Nelkin, 2008).
Indeed, even if the reformist could put forward an acceptable argument that would allow him to draw the line he seeks to draw between the effects of resultant luck on desert which he does not accept and other types of luck, which he is quite willing to ignore, the notion that such an approach could be implemented in reality and may, in fact be desirable, is almost laughable. For, again, in order to avoid arbitrariness which is “to a legal system, what corrosive rust is to a machinery” (Feinberg, 2003, p.78), reforms to sentencing guidelines would have to be applied across the board, to the general part of the criminal law, and not just to certain crimes defined by the special part such as attempted murder and murder. For, if we attempt to judge the amount of punishment deserved by someone who acts in a criminal manner in terms of their moral guilt and without reference to the actual harm caused there is no good reason to only apply this to more serious offences such as murder and attempted murder. We may therefore assume that whilst there may be a great number of people who would not object to punishing criminal actors such as A and TA identically, there are even more who would be unwilling to accept the infringements upon individual liberty and privacy that would follow from reforms that would allow this.
For, imagine that you, yesterday, in a rush to get home after work did not check for hazards such passers-by, children and other vehicles when backing out of your parking space. Luckily however, although you no doubt acted in a negligent and foolish manner and could have caused a terrible accident you did not. Let us call this scenario ‘Lucky’ as because no one was harmed by your foolishness you suffer no repercussions. Now imagine a similar scenario, ‘Unlucky’, in which you are not so fortunate, in which because you were in a rush you failed to notice that one of your work colleagues was behind your car, waving and holding up an important document that you, in your hasty exit from the office forgot to sign and you consequently ran over and killed him. In Unlucky you were no more negligent than in Lucky but because the consequences of your negligence were so severe you are charged with the offence of causing death by dangerous driving, have your license revoked, and are sent to prison for 2 years, 12 years less than the maximum sentence for such an offence set down in section 1 of The Road Traffic Act (1991). 
If we were to amend the criminal law in the ways the reformist suggests, you, in both of the situations lucky and unlucky are deserving of the same punishment. You have, after-all acted in the same negligent manner in both situations even though the results of your negligence are entirely different. Consequently because of the reformists unflinching commitment to the principle of proportionality and the belief that “resultant harms are not normatively relevant to the existence or grading of criminal offenses by people who are identical in every respect” (Westen, 2007, p.310), you, in both scenarios, must surely be punished equally. This however, inevitably leads to two distinctly absurd consequences. The first regards the problem of discovering such crimes as that which occurred in the scenario Lucky. For, you are highly unlikely to hand yourself over to the police to spend two years in prison for a crime that could, but did not ultimately occur. In order to catch people for such crimes then, the level of policing in society would have to be greatly increased involving massive sacrifices in individual liberty and privacy (Hart, 1968), two of the things the law is in place to protect. Secondly however and more importantly, the implementation of such a reform would turn each and every man into a criminal whose “lives would be passed in trying and punishing each other for offences which could never be proved.” (Hart, 1968, p.127) or which every man, due to his fallible nature is bound to commit at some point within his lifetime.
Punishment and Communication
Even if it were not the case that moral luck and the costs mankind would have to pay in order to fairly implement reforms in our sentencing guidelines, posed problems for the reformist, we may, if we take a less narrow view of the aims of punishment, note that punishing failed attempts less severely than successful attempts does in fact serve a valuable purpose. For, whilst it is undoubtedly the case that retribution is an important aim of punishment, one might also reasonably suggest that linked to this aim is the aim of communication and that thus a key function of the criminal law should be to effectively “communicate to the offender, and to the wider community, a proper condemnation of her crime” (Duff, 1990, p.36), a role which, if we were to reform our sentencing guidelines, the criminal law would not so successfully play.
To illustrate this point let us return to the thought experiment in which A and TA attempt to murder B and TB. In imprisoning a murderer such as A for life we are communicating to him the seriousness of his crime and our society’s condemnation of his act. We wish for his repentance. If, however, we were to sentence TA to the same punishment as A, grouping murder and attempted murder in the same category of offence, such as that of “wrongful homicidal behaviour”, the message communicated would be that “it does not matter to the law whether an attempt to commit a criminal wrong succeeds” (Duff, 1990, p.36) Yet this is not the case. We as a society do not believe that a failed attempt to murder is just as bad as a successful attempt to murder. We want TA to be glad that he did not kill TB, to feel remorse for his acts, but to also be thankful for the role that luck played in the events that unfolded, and relieved that his act did not produce the harm he originally intended.
Indeed, although it is the case that orchestrators of failed attempts in cases such as that of A and TA, have effectively completed their attempts, we might argue that “the failure of even a complete attempt gives the criminal a kind of locus poenitentiae” (Duff, 1990, p.35) as whilst A and TA are both given the chance to repent their crimes, TA is given the added opportunity to be glad that his act did not succeed and truly repent, by refraining from attempting once again to take TB’s life.
One may thus conclude that regardless of whether one holds a broadly utilitarian or retributivist conception of punishment, there are good reasons to punish failed attempts at a crime less severely than completed crimes. For, if one justifies punishment in terms of its deterrent effects, as does the utilitarian, one may punish the orchestrator of a failed attempt less severely in order to deter him from making further attempts at completing his crime. Indeed, even if one holds a broadly retributivist account of punishment, arguing that punishment is justified via reference to and should be proportionate to the moral guilt of the criminal actor, we may also justify lesser sentences for the criminal who attempts but fails due to luck, even though he possessed the same criminal intent as the orchestrator of a successful attempt. For, although the argument given by those who seek to reform the criminal law, that basing the sentence of two criminal actors on nothing more than luck is arbitrary, there does not seem to be a non-arbitrary point at which to draw the line at the effects of luck. For, if we are to discount the effects of luck on the outcomes of our acts there seems to be no good reason not to also remove the effects of luck upon who we are, the circumstances we face and their corresponding causal effects, a feat that may be impossible for all but an omniscient being. Indeed, even if it were possible, would almost certainly force us to the absurd conclusion of giving up the entire notion of moral responsibility altogether. Yet, even if the reformist were able to give an adequate argument, which would allow him to draw a line between resultant luck and other types of luck and punish attempted crimes regardless of outcome, we might also look to three further reasons that support the disparity between the sentences meted upon orchestrators of failed and successful attempts. Firstly, as the social pot is not bottomless, the cost of such reforms in terms of extra police and larger prisons would likely make it impossible to implement. Secondly, such reforms would be undesirable, as they would involve vast incursions on individual liberty, one of the things the law is in place to protect. Finally, we might argue that our current sentencing guidelines serve as a valuable communicatory device, communicating to the offender society’s relief at his failure.
Bentham, J. (1970). An introduction to the principles of morals and legislation. Eds. J. H. Burns & H. L. A. Hart. Oxford: Clarendon Press.
Duff, R. A. (1990). Lotteries and the punishment of attempts. Law and Philosophy, 9(1), pp. 1-37.
Duff, R. A. (1996). Criminal Attempts. Oxford: Clarendon Press.
Feinberg, J. (2003). Problems at the roots of law. New York: Oxford University Press.
Hart, H. L. A. (1968). Punishment and responsibility. Oxford: Clarendon Press.
Kadish, S. H. (1999). The criminal law and the luck of the draw. In L. Katz, M. S. Moore & S. J. Morse, Eds. Foundations of criminal law, New York, Foundation Press, pp. 157-161.
Kant, I. (1997). Groundwork for the metaphysics of morals. Ed. M. Gregor. Cambridge: Cambridge University Press.
Milgram, S. (1974). Obedience to authority; an experimental view. New York: Harper Collins.
Moore, M. S. (1994). The independent moral significance of wrongdoing. Journal of Contemporary Legal Issues. 5. pp. 237-281.
Nagel, T. (1979). Mortal questions. Cambridge: Cambridge University Press.
Nelkin, D. K. (2008) Moral luck. Stanford Encyclopedia of Philosophy. Available at http://plato.stanford.edu/entries/moral-luck/ [accessed 29/03/10].
Plato (2008). Laws. Trans. B. Jowett (1871). New York: Cosimo Classics.
Schachar, Y. (1987). The fortuitous gap in law and morality. Criminal Justice Ethics, 6(2), pp.12-36.
Ten, C. L. (1987). Crime, guilt and punishment. Oxford: Clarendon Press.
Thomson, J. J. (1987). The decline of cause. The Georgetown Law Journal, 76, pp.17-150
Westen, P. (2007). Why criminal harms matter: Plato’s abiding insight in the Laws. Criminal Law and Philosophy, 1(3), pp. 307-326.
 The term ‘practices’ is used in order to highlight the fact that our sentencing practices do diverge from sentencing guidelines. For as Duff notes in Criminal Attempts, “neither the 1981 Act and The Model Penal Code give the mere fact of failure in a criminal attempt general significance in sentencing.” (Duff, 1996, p.116) and in fact imply that “attempts frustrated at the last moment might properly be punished as severely as if they had succeeded” (Duff, 1996, p.116).
 As it has been termed by Feinberg (2003), also known as the ‘standard educated view’ (Moore, 1994).
 See Duff (1990) Feinberg (2003), Kadish (1999), Moore (1999) & Westen (2007) among others, for variations of such thought experiments.
 In Punishment and Responsibility (1968) Hart offers an attempt to reconcile the belief that we should punish only those who have committed an offense with utilitarian justifications of punishment via his principle of ‘retribution in distribution’ which states that punishment may only be applied “to an offender for an offense” (Hart, 1968, p.9). However he also notes that in extreme cases it may, with a sense of regret ,be overridden (Hart, 1968, p.12) and thus still allows, in certain circumstances, not only punishing the innocent but also avoiding punishing serious offences (Ten, 1987, p.80).
 ‘the place of penitence’ used in the criminal law to describe the period of time in which an agent involved in a criminal activity may legitimately repent for himself and withdraw from his criminal attempt without completing it (Duff, 1990, p.34).
 Concerning “the kind of problems and situations one faces” (Nagel, 1979, p.28).
 Concerning “the kind of person you are, where this is not just a question of what you deliberately do, but of your inclinations, capacities, and temperament” (Nagel, 1979, p.28).
 See Judith Jarvis Thomson’s 1987 essay ‘The Decline of Cause’ for a similar thought experiment (p.139)