Our Discussion Forum for this week the first in a series of three on the criminal law and its processes, concerns competing theories of deterrence (as crime prevention or as offender rehabilitation) and applications of the doctrine of inchoate offense (the law of attempt).
For purposes of this week’s Discussion Forum for Week Five, your reading assignment includes the following four papers::
Before I introduce, in this opening post to our Discussion Forum for Week, the questions presented that you will be asked to respond to in your contributing post(s), allow me first to present, in memorandum lecture format, an introduction to our topic for discussion this week, namely, competing theories of deterrence (as crime prevention or as offender rehabilitation) and applications of the doctrine of inchoate offense (the law of attempt). Herein I will introduce the required reading materials assigned for this week’s lecture—the first in a series of three concerning the criminal law and its processes—and I will make certain key points which will be necessary for you to study in connection with the assigned readings.
Generally, when we refer to a crime, we denote a specific offense in violation of a public law that has been enacted by the legislature and codified to the penal code of a state. The statute will specify the substantive elements of the crime which the state, in a criminal prosecution must prove, by a burden of beyond reasonable doubt, for purposes of convicting the defendant. The substantive elements will specify the required “mens rea” (mental state), the required “actus reus” (fact of the deed done), and the mandated punishment that the state must sentence the defendant to (normally a determinate period of confinement in a penitentiary within a range of years depending on the trial court’s finding of mitigating and aggravating factors in the commission of the crime) if convicted.
The purpose of our criminal laws is to punish persons convicted of crimes. Society’s motive for such punishment is to deter persons from attempting to commit such crimes. There are differing theories of how such deterrence is can be effective. According to the utilitarian offender-rehabilitation view, punishment serves to correct the defendant’s conduct which caused actual or potential harm to persons in society at large, incapacitating the offender and causing him to repent of his disposition to commit crime. According to the traditional retributive justice view, the purpose is simply to prevent crimes by eradicating any perceived benefit to a potential offender in committing them.
The Constitution entitles all persons accused by government law enforcement to a fair trial by a jury of his peers, and guarantees certain “due process” requirements such an attorney if he cannot afford one, and a presumption of innocence until proved guilty on the trial. The defendant is also guaranteed the right to be confronted with witnesses against him, to discredit their testimony by cross examination, a right of appeal in the event of an adverse judgment, and other procedural rights such as not being coerced to testify against himself, probable cause that he was engaged in the commission of a crime before his being taken into custody, notice of pending charges and in most cases an opportunity to post bail at his initial appearance in court, and a proper indictment based upon a finding of sufficient evidence to support a likelihood that the state would successfully prosecute him on the trial. The defendant may attack the legal sufficiency of his indictment at any time before a final judgment has been entered on a guilty verdict.
Additionally, the state must prove that the defendant is being prosecuted under a non-retroactive public law codified to the penal law, and rebut by a preponderance of the evidence any affirmative defenses brought by the defendant, such as justification, legal insanity, or impossibility, that would nullify the criminality of the act committed. The defendant has a correlative right to bring such defenses, and to prove them, such as by rebutting a presumption of legal sanity, by a preponderance of the evidence.
Our topic for this week is the doctrine of inchoate offense (the law of attempt). Defendants may be convicted on charges of having attempted to commit a specific intent crime without succeeding at producing the harm intended (for example, as in attempted murder, attempted rape, or attempted robbery). Our traditional doctrine of such “inchoate offenses” sentences the convicted defendant to only one half of the penalty (prison sentence) that would be penalized the same offender had his crime been carried out. The reason is simply that such forgiveness is due the inchoate offender, since after all he did not actually cause any harm, even if his motive in attempting to commit the crime was to obtain some perceived benefit accruing to him from perfecting it. Compassion requires us, under this so-called “harm doctrine” to regard such a failed attempt as characteristic of a substantially less dangerous offender, and so to regard his rehabilitation while serving his sentence as requiring less time.
In “The Criminal Law and the Luck of the Draw,” the first of the required reading assignments above, a Faculty Lecture delivered on March 4, 1993, at the University of California at Berkeley, Prof. Sanford Kadish, Morrison Professor of Law, argues that the “harm doctrine” underlying our tradition law of inchoate offenses is irrational, since (1) it does not serve the crime preventive purposes of the criminal law, and (2) it is not redeemed by any defensible ethical principle. Herein I will summarize the key points of Prof. Kadish’s paper presently.
The next two readings are high state court caselaw decisions, first People v. Dlugash, 41 N.Y.2d 725, 363 N.E.2d 1155 (1977) and then State of Kansas v. Peterman, 280 Kan. 56, 118 P.3d 1267 (2005) . In each of these cases, the high state court reverses an intermediate appellate court’s reversal of a conviction of the defendant on the trial.
In People v. Dlugash, the defendant was convicted of killing a murder victim that had previously been severely wounded in the torso by means of a high caliber pistol. On the trial, the defendant testified that he believed the victim was already dead and was induced to shoot small caliber rounds into the victim’s face as he lay prostrate on the floor only because he was in fear of the first shooter. Because on the trial the medical examiners had failed to testify with any degree of certainty that the victim was still alive at the time of his shooting by the defendant, the intermediate appellate court dismissed the indictment. The New York Court of Appeals, however, reinstated the indictment on the lesser included charge of “attempted murder,” and reinstated the trial court’s conviction on the attempted murder charge, since the jury was entitled to weigh and to discredit the defendant’s statements to the police to the effect that he believed at the time he shot at the victim that the victim was already dead.
In State of Kansas v. Peterman, the defendant was duped by a police informant into carrying out certain acts in preparation for carrying out lewd and lascivious acts on a fictitious underage girl. The intended victim did not exist, being a fabrication of the police sting operation. The intermediate appellate court reversed the conviction because it deemed the guilty verdict had been arrived at by an illegitimate “stacking” of offenses, constituting an attempt to commit an alleged attempted rape. The Supreme Court of Kansas, finding that the intermediate court was in error in finding that the jury conviction was arrived at by such stacking of offenses, reversed the intermediate court of appeal, upholding and reinstating the trial court’s conviction of the defendant on the attempted rape charge.
For purpose of this Discussion Forum for Week, you must read:
My selected passage from the above Steinbeck novel details an attempted bank robbery, from the crime’s original conception in the mind of the perpetrator, through to the intricate details of the crime’s preparation. The attempted bank robbery is that of none other than the novel’s protagonist and narrator, Ethan Hawley, which is finally thwarted before it can actually be perpetrated. Steinbeck’s novel is of course a work of fiction, but it describes an attempted bank robbery nonetheless.
Your task in this Discussion Forum will be to assess and to evaluate the facts of the crime of attempted bank robbery in the above passage from Steinbeck’s “The Winter of Our Discontent,” after carefully weighing U.C. Berkey’s School of Law Prof. Sanford Kadish’s arguments about the merits of the concept of “moral luck”— a notion suggested in the writings of such distinguished philosophers as N.Y.U.’s Thomas Nagel in 1979, U. of Michigan’s Michael Davis in 1986, U.C.L.A.’s David Lewis in 1989, each of whose different ideas on the subject Kadish reviews in his paper.
Prof. Kadish, in his lecture “The Criminal Law and the Luck of the Draw,” asks us first to consider the case of a man who stabbed his son in anger, pleaded guilty and was convicted of a crime equivalent for our purposes to attempted murder. After serving several months of a two-year sentence he was paroled. However, three months later his son, who had been hospitalized since the attack, took a turn for the worse and died, whereupon the prosecutor, quite within the law, charged the father with murder, a crime punishable with life imprisonment or death. Whereupon Kadish observes, “What did the father do in jail or on parole that merited the greater punishment? Not a thing.” Thus, the reward for failing, no matter how hard you try to succeed or how close you come, is a lesser punishment.
Kadish argues that the “harm doctrine” underlying our tradition law of inchoate offenses is irrational, since first, it does not adequately serve the crime preventive purposes of the criminal law, and second, it cannot be supported by any defensible ethical principle. Where some might defend the harm doctrine by asserting that it serves crime preventive purposes by offering the prospect of lesser punishment as an inducement for the defendant to desist. In answer Kadish makes the following points: (1) by the time the defendant has done the substantial acts toward carrying out the crime that the law of attempt requires, there is very little chance of a change of heart, (2) even if the defendant might have a moment of doubt at the last instant, reducing the punishment from say, six to three years imprisonment, hardly does much to reinforce it, and (3) if providing a motive to desist were really the objective, one would expect the law to offer a defense of total exculpation where the defendant voluntarily desists.
Note that in the passage from the above Steinbeck novel, Ethan, last-minute preparations for his bank robbery having been made, finally decides not to go through with the robbery, spotting the sudden appearance in front of his store of the federal agent, Walder, whose questions about his grocery store’s present owner Marullo he had answered a week or so before (chap. Twelve). Agent Walder had visited the store shortly after Ethan contacted the F.B.I. several weeks earlier (chap. Eleven) with information that his boss Marullo, in his childhood, might have entered the country illegally.
Kadish cites Scottish Enlightenment philosopher Adam Smith as author of the harm principle, quoting the following passage from Smith:
“Our resentment against the person who only attempted to do a mischief, is seldom so strong as to bear us out in inflicting the same punishment upon him, which we should have thought due if he had actually done it. In the one case, the joy of our deliverance alleviates our sense of the atrocity of his conduct; in the other, the grief of our misfortune increases it.”
Kadish proceeds to consider NYU Philosophy Dept. Professor Thomas Nagel’s theory of “moral luck,” from the latter’s 1979 book “Mortal Questions.” Nagel argued that we commonly make and defend judgments of moral desert despite the presence of substantial elements of chance. Kadish reasons that if the harm principle is irrational because it makes moral desert turn on chance, then so are many of our considered moral judgments. For example, you may be lucky or unlucky in the antecedent factors that determine the kind of person you turn out to be and in how you choose to exercise your will. And you may be lucky or not in whether circumstances present you with an occasion to make a moral choice that will reveal your moral shortcomings; for example, luck in whether you are ever presented with the need to choose to betray a friend or break a promise.
Kadish then considers U.C.LA. Philosophy Professor David Lewis’s observations in the latter’s 1989 article “The Punishment that Leaves Something to Chance,” who defends the harm doctrine by comparing it to a “penal lottery” in which the amount of punishment for a crime depends on some such chance event as the drawing of long and short straws. So, as Kadish reads David Lewis, we need to cease thinking of the lesser punishment for failing to complete the crime as attributable to lesser guilt, and think of it merely as the chance event that determines the losers and winners of the lottery. Thought of as a penal lottery, there is no unfairness, for in leaving punishment to chance all attempters are treated alike. They all, in effect, draw straws. If they draw the short straw (that is, they succeed) they get the greater punishment. If they draw the long straw (that is, they fail) they get lesser punishment. There is no unfairness in treating the winners better than the losers so long as the lottery is unrigged.
Kadish then considers U. of Michigan Philosophy Professor Michael Davis’s arguments in the latter’s 1986 article “Why Attempts Deserve Less Punishment than Complete Crimes.” Michael Davis defends the lesser punishment doctrine by asking us to imagine an auction of licenses that permit the holder to act free from social restraints. A license to fail is worth less than a license to succeed, because people would naturally bid less for it. One who succeeds in committing a crime has unfairly imposed on the rest of us to the extent of the value of the license to succeed, while one who fails has imposed on us to the lesser extent of the value of a license to try and fail. Less is needed in the latter case, therefore, to rectify the unfairness.
In Part Two of his paper, Kadish later criticizes the “retributive justice” model of punishment stemming from Aristotle and Immanuel Kant. He distinguishes two kinds of wrongdoing retributivism, one strong and one weak. The strong form, sometimes called “positive retributivism,” makes doing wrong alone sufficient to create a duty to punish the wrongdoer. The weak form, “negative retributivism,” asserts not that justice requires that all wrongdoers be punished, but that may be punished only in an amount proportional to what they deserve. Kadish does regard “negative retributivism” irrational, since he agrees the amount of punishment should depend on the culpability of the actor and not on chance outcomes.
Kadish then concludes his lecture observing that even if some of the law’s doctrines are not rationally defensible, that is because, as Adam Smith observed, it is our moral judgments that are irregular. For it is clear that these intuitions (that chance results do matter in assessing blame, and that in doing wrong you take on all the consequences, foreseeable or not, and certainly that it is right that wrongdoers should be made to suffer) are ingrained in our moral sensibilities, and that the law only reflects them. The track of the irrational in the criminal law leads back to our moral culture itself. Quoting a dictum from Justice Oliver Wendell Holmes, Jr., who stated that the law is “the witness and external deposit of our moral life,” Kadish advises that there are limits, in a democratic community like ours, to how far the law can or should be bent by reformers, such as himself, to express a moral outlook different from that of the deeply held intuitive perceptions of the great mass of humanity, irrational though they may seem.
In your contributing post(s) to this week’s Discussion Forum for Week Five (Mar 7—13), IN LIGHT OF the arguments raised by Prof. Sanford Kadish in his 1994 paper “The Criminal Law and the Luck of the Draw,” you are asked (1) first, to indicate the reasons why, in your judgment, our hero Ethan Hawley, the protagonist and narrator of Steinbeck’s classic The Winter of our Discontent (1961) is deserving of criminal punishment for his attempt to rob a bank, and (2) second, to indicate the reasons why, in your judgment, Ethan is deserving of a substantially lesser penalty simply because, at the final instant before carrying out his carefully laid plan. For example, and how, might his defense counsel raise an affirmative defense of temporary insanity, or perhaps mitigate the penalty by offering proof of a diminished mental capacity? Some might belief that he deserves no punishment after all, but in that event, they are obliged to clearly state their reasons.
Perhaps I am obliged, for opening up the issue, to confess my own angle on Steinbeck’s admittedly fictional narrative. You see Ethan, our hero, is quite an unusual man, a Harvard graduate versed in the Bible, urged on in his youth by (the ghost of) his New England great grandmother Deborah who read to him from the Bible in his childhood. He is a combat veteran of the Second World War, having served as an infantry officer. He is a devoted family man concerned mainly with preserving the family’s century old heritage in Suffolk (Wessex) County, Long Island, where the family settled in colonial times and became wealthy as privateers during and in the aftermath the Revolutionary War.
Ethan, quite unnaturally, fears doing evil more than he fears the consequences thereof, suffering the punishment in either case. Steinbeck’s scenario is distinguishable from the facts of our two caselaw decisions People v. Dlugash, 41 N.Y.2d 725, 363 N.E.2d 1155 (1977) and State of Kansas v. Peterman, 280 Kan. 56, 118 P.3d 1267 (2005) in that in Steinbeck’s novel, there are no witnesses to the Ethan’s crime (attempted bank robbery), nor even any reason to suspicious that Ethan ever envisioned attempting to carry it out.
For those of you that might be interested, in 1983 (CBS) Hallmark Hall of Fame Productions produced a very light hearted television movie adaptation of the novel, starring Donald Sutherland (Klute, 1971) as Ethan Hawley (Klute, 1971), Michael V. Gazzo (The Godfather Part II, 1974) as Marullo, Tuesday Weld (Looking for Mr. Goodbar, 1977) as Margie Young-Hunt, and E.G. Marshall (Twelve Angry Men, 1957) as the banker Mr. Baker.
Once again, your task in this Discussion Forum is to assess and to evaluate the facts of the crime of attempted bank robbery in the above passage from Steinbeck’s “The Winter of Our Discontent,” after carefully weighing U.C. Berkey’s School of Law Prof. Sanford Kadish’s arguments about the merits of the concept of “moral luck”— a notion suggested in the writings of such distinguished philosophers as N.Y.U.’s Thomas Nagel in 1979, U. of Michigan’s Michael Davis in 1986, U.C.L.A.’s David Lewis in 1989, each of whose different ideas on the subject Kadish reviews in his paper.
In your contributing post(s) to this, our Discussion Forum for Week, IN LIGHT OF the arguments raised by Prof. Sanford Kadish, and by Professors Thomas Nagel, Michael Davis, and David Lewis, you are asked (1) first, to indicate the reasons why, in your judgment, our hero Ethan Hawley, the protagonist and narrator of Steinbeck’s classic The Winter of our Discontent (1961) is deserving of criminal punishment for his attempt to rob a bank, and (2) second, to indicate the reasons why, in your judgment, Ethan is deserving of a substantially lesser penalty simply because, at the final instant before carrying out his carefully laid plan. For example, and how, might his defense counsel raise an affirmative defense of temporary insanity, or perhaps mitigate the penalty by offering proof of a diminished mental capacity? Some might belief that he deserves no punishment after all, but in that event, they are obliged to clearly state their reasons.
I expect that your initial post should be at least 250 words in length but not more than 500 words in length.
State the grounds (the evidence and reasons) for holding your position CLEARLY AND CAREFULLY. You must answer both the general and specific questions I have presented in this opening post.
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