Since my thesis was (partly) on the philosophy of responsibility, and since I teach a bit on criminal law, I occasionally like to look at some of the philosophical aspects of criminal liability. Indeed, these occasional looks have accumulated over the months, so much so that they now form a “series”. This post is part of that series. It looks at liability for attempted crimes, specifically at attempts involving a change of mind.
The post is based on an article by Gideon Yaffe, entitled “Attempt, Risk Creation and Change of Mind: Reflections on Herzog”. Yaffe is one of the best contemporary philosophers of criminal law and has written a book-length analysis of attempt liability. In the book (which I have not read), he presents an original theory of what constitutes an attempt. The aforementioned article offers a capsule summary of this theory and applies it to a rather interesting fictional scenario: Herzog’s plan to kill his wife and her lover, from Saul Bellow’s novel Herzog.
In what follows, I will first discuss some of the basic aspects of attempt liability and describe the scenario from Herzog. I will then present, in broad outline, Yaffe’s theory of attempts, before finally considering how it applies to Herzog’s change of mind. It should be noted that I will exclude a significant portion of Yaffe’s paper from the following discussion. That is the portion of the paper that considers (and rejects) the possibility that attempts should be viewed as crimes of risk creation. While interesting, that discussion would distract from my main purpose in this post, which is to consider attempts and changes of mind.
1. The Everyday Logic of Attempts
In the criminal law, a “crime” is consists of “elements”. There are two main kinds of elements in every criminal offence: actus reus (external) elements, which describe the actions and external circumstances of the crime; and mens rea (fault) elements, which cover the state of mind that accompanies the actus reus. Take the example of murder. Typically, this is thought to consist of two actus reus elements and one mens rea element. On the actus reus side we have: (a) the death of one person (b) caused by the actions of the defendant. And on the mens rea side we have: (c) the intention to kill or cause grievous bodily harm. These three elements constitute what we shall call the completed crime of murder. If a defendant happens to satisfy all three elements, and has no viable defence, then they will be liable for the completed crime.
But what happens if the crime is not completed? What happens if it is merely attempted? For instance, suppose someone buys a gun and shoots it at another person, intending to kill them, but misses. Are they not liable for something? Yes; certainly: they are liable for attempted murder. Every legal system of which I am aware includes liability for attempted crimes of this sort. So, even if the elements of the offence are not satisfied, one can be held liable for attempting to satisfy those elements.
The question then arises: what grounds do we have for holding people liable for attempts? I have considered some possibilities in a previous post. Here, I look to Yaffe’s answer, which is complex, but derives in part from the ordinary, everyday, morality of attempts. He argues that whenever we prohibit an action, it seems to follow automatically that we prohibit any attempts to perform that action. We can call this the ordinary morality of attempts (OMA) principle:
OMA-Principle: If we prohibit an action X, then we also prohibit any attempt to do X.
Support from OMA comes from thought experiments suggesting that its denial would be somewhat absurd. Consider, for instance, the father who prohibits his infant daughter from jumping up and down on the sofa. Moments later, she starts to climb onto the sofa with the intention of jumping on it. Could the child argue that she has not breached the prohibition merely because she has only attempted to jump on the sofa, but has not completed the prohibited act? In a technical sense, perhaps; but in a deeper, more morally salient sense, it would seem silly to say she could. Yaffe suggests that the criminal law tracks OMA in its prohibition of attempts as well as completed crimes.
So far so good. But now an interesting problem for attempt liability presents itself. What happens if the person begins to attempt an action, but then gets a change of mind (a sudden “pang of conscience” perhaps)? Are they still liable for the attempt? Bellow’s Herzog presents us with this problem. In the novel, we are told that Herzog is angered by his ex-wife and her lover and plans to kill them. He obtains a gun, drives to their house and watches them through the window. We are told that he imagines killing them on the drive over and while peering through the window. But then a curious thing happens. As he sees his ex-wife’s lover bathing his daughter with kindness and humour, he gets a change of heart and walks away. He never follows through on his initial intention to kill.
The sequence of events is depicted in the diagram below. The red line represents the point at which his change of mind intervenes and prevents him from completing the crime.
We want to know two things. First, is Herzog liable for attempted murder? And, second, if so, should his punishment be commuted or lessened because he changed his mind?
2. Yaffe’s Theory of Attempts
Turning our attention to the first of those questions, we must figure out what exactly does it mean for somebody to attempt something. This is where Yaffe’s theory of attempts comes in handy. The central edifice of this theory is something called the Guiding Commitment View, according to which an “attempt” can be defined as follows:
Guiding Commitment View of Attempts: An agent (A) can be said to attempt a crime (C) when the following two conditions are met:
- (i) A has an intention that commits him/her to every element of C; and
- (ii) A’s actions are guided by this intention.
The two conditions contain two important concepts — intention-based commitment and guidance by intention — which must be explained in more detail. Let’s go through them both in turn.
As Yaffe notes, the notion of intention-based commitment is broader than the notion of intending. This is because one’s intentions can commit one to a variety of actions or sequences of events that one does not directly intend. To put it another way, one’s intention-based commitments can be pluralistic: they do not have to (though they might) map directly onto a specific set of actions. For instance, suppose one intends to burn down one’s house in order to obtain an insurance payment. This intention commits one to causing the house to burn down, but that commitment can be satisfied in a number of different ways, e.g. by leaving the oven on, by neglecting to put out a cigarette, by drenching the house in petrol and throwing a match onto it, and so on. Each of these actions may be individually be intended after the original commitment.
So how is intention-based commitment to be understood in the criminal law? Yaffe suggests that, in order to figure out exactly what somebody’s intentions commit them to, we should ask ourselves a simple question: what kinds of things would be true if that intention were to play an ordinary role in motivating their actions? And, more specifically, do these things include the elements of the offence under consideration?
Let’s look now at the notion of guidance by intention. What exactly does this mean? Broadly speaking, Yaffe argues that to be guided by an intention is to act in manner that is motivated by whatever the intention demands. But applying this in practice proves tricky because action is complex and what is motivated by the intention under consideration must be distinguished from what is motivated or caused by something else. For example, suppose my intention is to ascend the stairs. I turn to you, declare “I am about to ascend the stairs!”, and then proceed to climb up the steps. In this case, I performed two actions: (i) a speech act (the declaration); and (ii) a normal act (climbing the stairs). The second of those acts was clearly motivated by the original intention; but the first was not, it seems to have some other causal history.
So how then is guidance by intention to be understood in the criminal law? Again, Yaffe proposes a simple enough test. We should ask ourselves: Did the agent initiate a causal sequence, motivated by the relevant intention, that would, in the ordinary course of events, have led to the completion of the crime? If yes, and if his original intention committed him to each element of that crime, he is liable for the attempt.
3. Did Herzog Attempt Murder?
With Yaffe’s theory in place, we can proceed to determine whether or not Herzog attempted murder. Obviously, to determine that we need to see if the two key conditions of the Guiding Commitment View have been satisfied.
As regards the first condition, the question is this: did Herzog have an intention that committed him to each element of the offence? In answering this, the insights of the omniscient author — in this case, Bellow — is of great assistance. Bellow effectively informs that Herzog had intended to cause the deaths of his wife and lover by his own actions. So it would seem he was indeed committed to each element of the offence of murder. Of course, it would be remiss not to point out that, in practice, things are not quite so straightforward. We are not omniscient authors, free to plant whatever intentions we choose in the minds of our characters. We will have to infer someone’s intentions from their outward acts (since they probably won’t tell us what they were thinking) and figuring out exactly what someone was committed to based on their outward acts is difficult. To say the least.
As regards the second condition, the question is this: did Herzog initiate a sequence that would, in the ordinary course of events, culminate in a murder? Look back to the diagram that I presented earlier on. The way I have drawn it, Herzog does indeed appear to have initiated a sequence that would have ended in the murder of his wife and her lover, but for his change of mind. The crucial question is whether this change of mind makes any difference to our analysis.
Yaffe argues that it should not. Indeed, he argues that no causal intervention into a sequence that was originally guided by an intention that committed the agent to all the elements of a crime should sway us from thinking that the crime was attempted. (At least, that’s how I read him in this article, I haven’t read his book so he may well allow for some exceptions). His reasoning takes the form of a simple reductio argument. Since every attempt involves some kind of intervention into the causal sequence — that being what distinguishes an attempt from a completion — accepting the principle that interventions nullify an attempt would mean accepting that there are no such things as attempted crimes. But clearly there are such things as attempted crimes. So the suggested principle must be wrong. To lay this out more formally:
- (1) If it is true that interventions into an appropriately-guided causal sequence nullify an attempt, then there are no such things as attempts.
- (2) There are such things as attempts.
- (3) Therefore, interventions into an appropriately-guided causal sequence do not nullify an attempt.
In this argument “appropriately-guided causal sequence” means “a causal sequence that was guided by an intention that was committed to all the elements of a crime”.
If Yaffe’s argument is correct, then it follows that Herzog did indeed attempt the murder of his wife and her lover. The fact that he changed his mind when he peered in the window does not help him, just as the fact (if it was a fact) that he was arrested by the police while staring in the window would not help him. The suggestion would thus seem to be that only a change of mind that occurred before the appropriately-motivated causal sequence was initiated would have nullified the attempt.
4. Does Herzog deserve a lesser sentence?
Yaffe’s analysis may seem harsh. To draw a parallel between the case in which Herzog prevents himself from completing the crime through a change of mind (an internal intervention) and a case in which he is prevented from completing the crime by an arresting police officer (an external intervention) will strike some as being implausible. Yaffe tries to remedy this by arguing that although Herzog has indeed attempted murder, his change of heart does not count for nothing. It will warrant some mitigation of punishment. To see this, we will have to briefly consider the possible grounds for punishment. Roughly, there are two such grounds: (i) retributive ones and (ii) consequentialist ones.
On retributive grounds, we punish people in direct proportion to their actual culpability. In cases of attempts involving external interventions, this might warrant punishing the attemptor just as severely, or marginally less severely than, the completor. This is because a person’s culpability corresponds to their state of mind and in such cases their state of mind is (typically) no different than that of the person who completes the crime. But this is not true in cases of internal intervention, assuming the internal intervention is intentional and not the result of some nervous tic or the like. In those cases, the person’s culpability has altered so they deserve a much less severe punishment, if any at all.
Similar reasoning holds if one punishes on consequentialist grounds. Consequentialists punish people either so as to deter them and others from committing similar crimes in the future. But what level of punishment will be sufficient to deter? Yaffe suggests that one way to think about it is to ask: what level of punishment would have provided sufficient reason to the person to prevent them from completing the crime? If they would have been prevented by a one-year sentence, then that would be sufficient punishment; if they would have been prevented by a two-year sentence, than that would be sufficient; and so on.
The problem comes when applying this test to those who have changed their minds. They have already provided themselves with sufficient reason to refrain from completing the crime. So would any punishment be acceptable? One may still say “yes” on the grounds that we have to think about deterring others, not just the individual in question. But still, it seems like the change of mind should serve to mitigate the burden somewhat. After all, we certainly don’t want to provide people with perverse incentives, ones that would give them no reason to change their minds. We might do this if we punish people severely irrespective of whether they changed their minds or not. If their punishment will be the same as if they completed the crime, they might be encouraged to go through with it anyway.
That brings us to the end of this post.
To summarise, Yaffe’s theory of attempts is called the Guiding Commitment View. According to this view, an agent can be said to attempt a crime if they: (i) have an intention that commits them to every element of that crime; and (ii) their actions are guided by that intention. Applying this to cases involving changes of mind, we find that those who change their minds after initiating a sequence of actions that would typically culminate in the completed crime are still deemed to have attempted those crimes. Nevertheless, the change of mind may count for something when we consider the appropriate level of punishment to impose on such people.