This is why a horrible crime like rape is typically not punished as strictly as murder: if the penalty were the same, why not do away with the witness. Though the effect of the crime on the victim can last a lifetime, at least they will be alive.
FWIW this probably doesn’t make any sense in practice. Most rapes are done by people who think they will get away with it either because it’s very hard to catch or because they have sufficient social power. Now, these people are clearly huge pieces of shit, but they’re probably not going to decide to murder the victim to minimize legal risk just because the potential penalties if convicted are closer. Murder is much harder to get away with and social power is much less likely to save you. Also, people don’t like committing murder generally, even if they’re apathetic enough to commit rape. The proposed logic feels like it describes the world in which rapes are committed by scary men who randomly break into your house because they’re just criminals. Not to trivialize the unfortunate fact that the latter does happen and it’s very sad, but it’s relatively rare.
If someone "has sufficient social power" as you put it, to get away with such a crime, then why do you think they wouldn't be able to make a person "disappear"?
Say, we were talkingn about basically an organized crime figure who ended up running a corrupt state. If you were a victim, would you bet that nothing would happen to you if you made a criminal complaint, filed a lawsuit, or went to the media?
This scenario is not a "scary man who randomly breaks into your house" - that doesn't seem at all implicit in the parent comment.
maybe it would work for white collar crimes, sadly we don't really punish those at all.
Surely the penalty for murder would mean something if your business is murder, just like taxpayer bailouts affect your appetite for risk at an investment bank.
Briefly, a drug policy guy makes the case that "swift and certain" punishment with pretty usually not very severe outcomes does a lot better as deterrence than what we do now.
There's a lot to digest, and I don't think anyone is going to agree with all of it - he gores a lot of oxen. But it is meticulously researched and reasoned, and hard for this non-policy professional to argue with. Really worth at least borrowing at the library for folks who like grappling with reality at a policy level.
Mark was also a prolific blogger who died recently. I didn't know him, but did read his blog.
[1] https://www.amazon.com/When-Brute-Force-Fails-Punishment/dp/...
https://www.nap.edu/read/18613/chapter/7#132
Studies have shown that extremely harsh penalties have minimal deterrence effects compared to moderately harsh penalties. More specifically, they advocate for a response function with a gradually decreasing gradient. Unfortunately, they have no recommendations as to what makes for a "moderately harsh" penalty, and they even acknowledge that some studies have shown deterrence effects from policies such as California's 3-strikes law.
Or, as biztos brings up, mostly looked at criminals who weren't making a considered decision in the first place.
As an aside, something feels off about this example. Choosing to differ the penalties to incentivize not murdering the victim suggests that the murder outcome is less desirable, i.e. the crime is more horrible. The argument implicitly assumes that murder is the more horrible crime while making a case for why the punishments differ. Given that punishments are generally expected to be in proportion to the horribleness of the crime that assumption suggests that the punishments would differ to begin with.
1. Imagine a system where the punishment for murder is exactly the same as the punishment for attempted murder, but that punishment has an element of chance: you might get a longer or a shorter sentence.
This doesn't seem particularly unreasonable. Now we're going to make successive modifications to the system, which (Lewis claims) don't obviously make it worse.
2. Now suppose that we attempt to make the punishment for more wholehearted attempts at murder greater. It's hard to tell what was in the criminal's heart, so as a reasonable proxy we try to evaluate, somehow, how likely the murder attempt was to succceed, and we punish more-likely-to-succeed attempts more harshly.
3. Now suppose, more specifically, that the way in which we punish more-likely-to-succeed attempts more harshly is by increasing the probability of getting the longer sentence. In fact, we'll say that the probability of getting the longer sentence is to be the same as our estimate of how likely the attempt at murder was to succeed.
4. How to estimate that probability? One effective but obviously impractical way would be to run some sort of reenactment or simulation of the crime, and give the longer sentence if and only if the victim dies. Aha! But we can simplify and improve this by using the original crime as the reenactment, and give the longer sentence if and only if the actual victim died.
And now we've arrived at pretty much our present practice!
Specifically step 2 sounds like it’s skipping the important bit that people disagree with on the original problem. Again, compare hiring the cheapest hit man vs the most expensive.
(crime, mitigating_aggravating_factors) => punishment
Surely there's a better way to describe it.
I can buy your argument if they had intended to commit the murder themselves, because they can change their mind at any point up to actually doing it.
Similar situations to the hitman exist, too: planting a bomb, poisoning food, etc. Just because they're a bad bomb maker, or the poison wasn't potent enough, or the target doesn't drive/eat the food/etc doesn't change that they clearly intended to kill someone. To be clear, I draw a distinct line between possessing a bomb and actually planting it in someone's car - the former might be still be a crime but is clearly not the same severity as actually killing someone, whereas the actions the perpetrator took in the latter are indistinguishable, regardless of outcome.
It seems to make sense? I mean, it's not like someone is getting off scott free. But at least there isn't a body, and that should count for something. Attempted murder is overall less bad than actual murder.
I'll note that despite the above I'd probably prefer a justice system that focuses on deterrence and rehabilitation, and omits retribution.
A counterargument I can imagine is that if we punish the unsuccessful hiring of a hitman more lightly, then future hirers are more likely to err on the side of a hitman with a lower probability of success. But that seems improbable to me -- one doesn't hire a hitman to see them fail.
One small step further: someone who plans to hire a hitman should be punished, so that future people don't even think about it. Whether they manage to hire one is irrelevant.
Now you're punishing a thought crime and equating that with successful murder even.
But I would not equate it with hiring one. That's because the expected damage from planning to hire a hitman is smaller than that from actually hiring one. A year of punishment hurts the criminal the same regardless of which of those two scenarios holds, but the social benefit of punishing them is less. Therefore we should punish them less. (Unless we don't care about the welfare of someone who's been convicted at all. I think that's a sick position to hold -- even setting aside the possibility of false positives -- but it has its adherents.)
A real eye-opener for me regarding these questions of weighing the costs and benefits (i.e. the economics) of punishment was Thomas Friedman's book Law's Order. Until I read that, I thought the whole question was just a political fight. And while it certainly is a political fight, there's a much more objective kind of analysis available -- in fact, it's the norm in economics.
And thanks for the correction.
[1]http://www.daviddfriedman.com/Legal%20Systems/LegalSystemsCo...
It also makes sense if one rejects retribution as illegimate but accepts proportionality as a basis for limiting on punishment. (Many doctrines of criminal punishment accept both retribution as a goal and proportionality as a limit, so...)
And what happens if you hire a hitman and by accident he kills 20 people instead of 1 person? [1]
[1] Say some poison or even he just goes berzerk with the gun or weapon.
Under what circumstances is one responsible for someone else's acts. Just because you hire someone to do something illegal, you are not responsible for all the illegal acts the other person might commit.
The mere fact of putting something in motion does not immediately mean one is responsible for all the outcomes of all actions in the chain.
What I don't like is when they try to convict people for having conducted some kind of feasibility study. Sometimes this results in people who would have decided against committing the crime going to prison for decades as if they had committed it. Sometimes it results in people who would have committed the crime going free because the jury thinks, "This is ridiculous". I know it's more expensive and often a bit dangerous, but probably the police should wait until the gang actually arrives at the bank, or whatever, before making their arrests, rather than trying to prosecute a bunch of people who were talking about perhaps raiding a bank.
If we discovered that a robot had been programmed to murder after it tried to kill someone, we wouldn't let it back into society sooner if it failed in its attempt. We'd do our best to make sure it wouldn't murder anyone when released first.
If it helps, you can think of the robot as having a bug that leads to try to kill people sometimes if the right events happen around it. Should we only fix the bug in robots that have carried out successful attempts?
That's an assumption and it very well can be the outcome of fate alone. It's not like there is proof beyond a reasonable doubt that people have control over their actions. Neuroscience exhibits people are just cause & effect.
Imagining a robot that has a bug is similar to the outcome of fate. Outside the realm of blame being on the robot but the universe that made the bug possible & happen.
Do you disagree with me on either of these points?
Humans have been striving for this goal since the beginning of time. Of course I think the intentions are correct.
> I also think we should restrain the robot to prevent it from being able to kill again until we think the bug is fixed, even though it wasn't the robot's fault.
The word "restrain" shouldn't be used with what's done by the current justice system (specifically in usa). Anyhow my view of murder/any crime is similar to a person that caught an illness (like the flu for example). Outside one's control like everything else. I think the correct course of action is educating how reality really is for the unfortunate and a process that doesn't have any lingering punishment associated to it. Although the idea of knowing if a murder is no longer a murder is close to an impossibility with current day science. Similar to knowing if someone is capable of murdering when they haven't done the act.
I don't necessarily think what the justice system associates with rehabilitation is what I associate with the word. To answer your question, yes a person shouldn't be doomed to jail and when everything is outside one's control.
Furthermore, if you study killology the reality is that the majority of humans cannot take the life of another human. The statistics in World War II was approximately 25% of soldiers would actually fire their gun. Today the number is grossly higher and the academic research has the cause being from military adopting psychological training methods for dehumanization. This is interesting to understand with the topic. Since, I theorize the majority of attempts couldn't actually carry it out and didn't realize until reaching the moment where they couldn't do it.
Do you think attempted murder should be treated differently if the attempt demonstrated ability to carry it out, but the victim survived due to luck?
Sorry, for that impression. I think all crimes are like illnesses.
> Do you think attempted murder should be treated differently if the attempt demonstrated ability to carry it out, but the victim survived due to luck?
Well, in an ideal world if I could design the justice system. I would think that every negative outcome is like an illness. Some illnesses are more unique than others but being able to carry murder is definitely different than not being able to but tried. So the illnesses would have to be cured differently.
Because it sounds more like boilerplate you could use yourself to muddy things that aren't muddy.
It's ok to just say "killing your competition is bad". No moral ambiguity to it.
That would be the job the of defense, not the job of the prosecution. They would be using your argument. Whats the morally ambiguous case here?
You can literally kill anyone and get away with it if the prosecution can't prove your intent has either negligence or premeditation and you were not intending to kill in a way approved by law (e.g.: did the soldier intend to kill his enemy within rules of engagement or did he intend to kill the enemy out of personal need for vengeance or hatred)
If you kill somebody by purposefully driving into them, even if the prosecutors can't prove whether you intended them to die or just be severely injured: Murder.
If you _try_ to kill somebody with your car but you fail: Attempted Murder.
If you were just trying to "scare" them, or if you weren't on a road at all and they died "by mistake": Manslaughter
If you inadvertently kill somebody while driving drunk: Causing Death by Careless Driving while Under the Influence of drink or drugs
If you were so very bad at driving that it should have been obvious that you might kill someone: Causing Death by Dangerous Driving or Gross Negligence Manslaughter.
If you were just bad at driving: Causing Death by Careless Driving.
Of course if your husband is an American spook you can just lie and then hurry aboard a flight home before anybody realises where you went...
That's not correct and in a very obvious way for anyone that pays a little attention to news. There are many factors that count.
In criminal law, strict liability is generally limited to minor offenses. Criminal law classifies strict liability as one of five possible mentes reae (mental states) that a defendant may have in pursuit of the crime. The other four are "acting knowingly," "acting purposely," "acting with recklessness," and "acting with negligence." The mens rea of strict liability typically results in more lenient punishments than the other four mentes reae. Typically in criminal law, the defendant's awareness of what he is doing would not negate a strict liability mens rea (for example, being in possession of drugs will typically result in criminal liability, regardless of whether the defendant knows that he is in possession of the drugs)."
With possession laws and statutory rape for example, the liability is that a reasonable person is expected by law to take steps to prevent their posession of co trolled substance or in case of statutory rape to discover the age of their partner. Intent does not need to be proven because the law (controversialy) defines the action to be sufficient proof of criminal intent.
Case in point: a mentally handicapped person or a small child cannot be convicted of these crimes, even under strict liability because they are incapable of criminal intent(and therefore criminal liability). even with intent or strict liability identical to that of a sane reasonable person,their inability to reason sufficiently means their intent is not considered criminal. I say that as argument that if strict liability has nothing to do with intent then inability to reason is irrelevant,because if for example mental handicap exempts a person of strict liability,it is because they are not behaving with reason and awareness of their actions and intent right? Or if someone (say a policeman) throws a bag of cocaine at you and you catch it,are you liable under strict liability? (Not being rhetorical,Honestly curious)
Strict liability does mean intent does not need to be proven but only because the law defines the action sufficient proof of criminal intent. If you can defend against this "proof" ,will you still be liable? I mean, it is my understanding that if you prove someone planted drugs to frame you or that your sexual partner showed fraudulent evidence (fake ID for example) of their age you will not be held liable, is that not the case?
The thought side of a crime, or the intent is mens rea, while the action of that crime is actus rea.
Normally in a crime both factor into the decision. For instance, should you murder somebody you committed the act of murder. What you intended or thought about before or during is the intent side or the mens rea part. Planned and murdered is a different charge than accidentally killed somebody.
So suppose we say the bar for murder is mens rea of "acting knowingly", and the act of the victim dying by your direction action.
But, manslaughter is mens rea of "acting with negligence", and the act of the victim dying by your direction action.
These are in effect two different crimes. The difference between them is what your intention was. If you want certain classes of murder you have to prove premeditated intent, because it's a part of the crime.
Now, strict liability says, "Mens rea does not matter here, it is not a part of the definition of this crime." What you thought or intended is simply not a part of what the court is there to consider.
The court is only there to consider is the action was done by you, and if so, you are guilty.
Edit: The handicap and small child, as far as I understand are not protected from being prosecuted in a strict liability charge in a court, but are simply less likely to make their way to a court.
I don't think this is an entirely accurate characterization. Strict liability is more of an assertion that improper intent is a foregone conclusion, i.e. improper intent is a necessary condition for the statute violation to occur in the first place, because people are responsible for taking precaution not to violate the statute.
> Edit: The handicap and small child, as far as I understand are not protected from being prosecuted in a strict liability charge in a court, but are simply less likely to make their way to a court.
The distinction is actually relevant to this scenario. Young children and people with significant mental disability are incapable of committing crimes (even statutory crimes) by the principle of criminal responsibility. It is not the case that statute law applies as you have described, because were it so it would also apply in scenarios where the perpetrator has immunity on account of inability to have criminal responsibility.
Then you're on a slippery slope of judging the intentions
And "murder?" We don't even know what life is, how can we be so arrogant as to define something like "murder" on so murky a premise as the ending of "life?" That's like dividing by zero. The commonly accepted list of the characteristics of a living thing (it consumes material to feed itself, it can grow and reproduce, it can die and respond to its environment) also apply to fire, so obviously firemen are also committing murder, and firemen are also hitmen.
Someday when we all tumble into the Orwellian nightmare this slippery slope is sending us down, we'll all be "hitmen" and everything will be "murder." This whole "hitman" thing is so obviously just another thinly-disguised form of thoughtcrime perpetrated against free-thinkers who don't blindly conform to the status quo.
Wake up, sheeple!
I’d also like to see a source on your claim about consciousness. I’m not sure how decisions and actions can just come to us and then we can purposely add a motivation afterward (but not before?).
But I'm not sure being an incompetent hitman is a scam that really pays when you factor in the risks...
As a bicycle commuter it's on my mind a lot.
Someone hires a hitman - the hitman kills a different person by accident. Is the contract giver guilty? They never intended any harm to the person that got killed.
etc. law is a funny business
5 years seems grossly insufficient for premeditated attempted murder. If the man was actually killed, I'm assuming the sentence would have been far more severe, such as 20 years. It seems ridiculous that someone can get a 75% reduction in their sentence, just because they were incompetent in their execution.