Attempt Liability and Moral Luck (Part One)

(Series Index)

This post is the first in a short series on the combined issues of attempt liability and moral luck. Attempt liability is an idea arising out of criminal law. It holds that a person can be held criminally liable for attempting an offence, such as murder or rape, as well as for completing an offence. And moral luck is….well, moral luck is one of the more interesting conceptual developments in 20th century ethical philosophy. I’ll talk about it in more detail later.

The purpose of this series is to address a simple question: is it right hold someone criminally liable for attempting, as opposed to completing an offence? This entry introduces the basic problems associated with attempt liability, their connection to the problem of moral luck, and some basic arguments in favour of attempt liability. The second entry will consider the arguments against attempt liability.

I’m going to be working off a variety of sources for this post. I’ll provide relevant links as I go along.


1. The Problem(s) of Attempt Liability
So should an attempted murderer be punished in an equivalent manner to a successful murderer? Before you answer that, let’s pump some intuitions with the following case study:

The Poisoning in the Teacher’s Room (A): Mike and Marge both teach at the local high school. They don’t like each other very much, and clash repeatedly during their daily exchanges in the teacher’s room. Finding it’s all too much to take, Mike decides to poison Marge. In the teacher’s room there are two large pots containing loose-leaf tea leaves or ground coffee. Marge drinks coffee every day. So Mike decides to place a quantity of poison in the coffee pot, just prior to her taking some to make her daily cup of coffee (he’ll replace it after, before anyone else takes some poison). He does this and succeeds in poisoning and killing Marge.

The Poisoning in the Teacher’s Room (B): The exact same as above only at the last minute, for some unknown reason, Marge switches from drinking coffee and decides to drink tea instead.

How do you feel about these two cases? Do you think Mike is just as culpable in Case A as he is in Case B? If you do then you are accepting (subject to defeaters) that attempt liability is a legitimate idea. But in doing so you open up the door to some problems. Chief among them being the problem of distinguishing an attempt from a non-attempt.

One of the core values in a liberal society is that people are free to think and act as they wish as long as they do not harm anyone else in the process; one of the hallmarks of the totalitarian society is its attempt to regulate, control and punish thought and behaviour, irrespective of whether it harms anyone else. The problem with allowing for attempt liability is that you may begin the slide from liberalism to totalitarianism. While we may feel comfortable treating Mike from Case A the same as Mike from Case B, in doing so we might set a dangerous precedent for future cases, a precedent that blurs the boundary between an attempt and a non-attempt.

(See the discussion of precedential slippery slope arguments in this post for more on the arguments that might be made here).

Consider the following two variations on the poisoning case:

The Poisoning in the Teacher’s Room C): Mike decides to poison Marge. He reads up about poisoning on the internet, buys some poison and plans out exactly what he is going to do. But at the last minute he gets cold feet and doesn’t put the poison in the coffee pot. Marge lives on oblivious, but Mike later tells a colleague of his plans and they inform the police (this last bit is probably irrelevant from a moral perspective, but important from an evidential one).

The Poisoning in the Teacher’s Room: Mike would love to poison Marge, but he just doesn’t have the courage. He fantasizes about it every day, planning the act meticulously in his mind, but never bringing it to fruition. He tells his therapist, but she sees no threat in his fantasies.

How do we feel about these two cases? I suspect we’d feel that Mike from Case D should be exempt from liability: his idle fantasies are exactly the kind of thing we want to protect from government intervention in a liberal society. But how about Mike from Case C? What he did was clearly less culpable than what he did in case B, but we might still feel like some intervention, or minimal form of liability is merited. Indeed, the criminal law can allow for some liability through the offence of conspiracy. However, by allowing for this we’ve definitely begun to slide from pure liberalism. That might be a perfectly acceptable thing to do — a capacity for nuance and an appreciation for the moral complexity of the real world are qualities we might like the criminal justice system to exemplify — but we have to consider where the boundaries should be drawn, if at all.

Distilling from the preceding discussion, there are perhaps three core boundary-line problems associated with attempt liability:

The Slippery Slope Problem: Should we even begin to punish attempts in addition to completed crimes?

The Equivalence Problem: Should we punish attempts in the exact same manner as completed crimes?

The Gradient Problem: Should we grade attempts in terms of their seriousness, and punish them in accordance with their location on the gradient?

Our primary focus will be on the first two problems, not so much on the third. I want to explore the arguments that propose different answers to those two problems. But before I do that I want to talk a little bit more about the issue of moral luck.


2. The Problem of Moral Luck
The problem of attempt liability links to a more general problem in moral philosophy, namely: the problem of moral luck. This is something which has garnered much attention in the relatively recent past. This largely began in the late 70s/early 80s when Thomas Nagel and Bernard Williams wrote a pair of classic articles on the topic.

The problem of moral luck can be simply stated: what role should luck play in the moral assessment of someone’s actions, accomplishments, failures, achievements and so on? Luck can be roughly defined as any action, event or state of affairs that is outside the control of the person being assessed. In his analysis of the issue, Nagel identified four main varieties of moral luck. They are (taken from the SEP article):

Resultant Luck: This is luck relating to the results of our actions. Poisoning cases A and B give us some idea of what is involved here. In both cases, Mike acted in the exact same way, but the results of his actions were different. In one instance, they led to the death of Marge, and in the other they did not.

Circumstantial Luck: This is luck relating to the circumstances in which one finds oneself. The classic example here being those who found themselves living in Nazi Germany in the 1930s. They likely did things that many of us would do (follow authority, act in their own self-interest) only they did so in appalling circumstances, circumstances which were outside of their control but made them complicit in an atrocity.

Constitutive Luck: This is luck relating to the kind of person that you are. Although we might like to think that we control our character traits and personality tics, our genes and our environment must play a considerable role in determining their content. These factors are beyond our control and could impact upon our moral choices.

Causal Luck: This is luck relating to the antecedent causes of who we are and how we act. Nagel views this as being equivalent to the issue of causation and determinism in the free will debate.

Now I’ll have to be honest and say I don’t see the need to distinguish between constitutive and causal luck. They seem like very similar concepts to me. Nevertheless, I think there is some utility to the resultant/circumstantial distinction. Indeed, within the criminal law — which is where the issue of attempt liability arises — this distinction is significant. This is because crimes are typically distinguished from one another on these kinds of grounds. For example, murder is a result-oriented offence: the actus reus of murder is the death of one person as caused by actions of another. In contrast, rape is a conduct and circumstances-oriented offence: the actus reus of rape is (usually) penetration of a bodily orifice of one person by the penis of another (conduct), without the consent of the person being penetrated (circumstance). So the conceptual and normative issues associated with resultant and circumstantial luck could be important when assessing attempt liability.

I previously said that the problem of moral luck has to do with whether luck should play a role in our moral assessments. That characterisation of the problem is sort of correct, but not quite all the way there. One of the realisations to emerge from the Nagel/Williams exchange in the 70s/80s was that luck does seem to play a substantial role in our everyday moral assessments. That is to say, we already seem to allow for moral blame to attach even in the presence of luck. So, to them and to most contemporary philosophers, the problem of moral luck is not “whether” luck has a role to play but, rather, how to account for the role that it does play. Of course, that’s not to say that the more general normative issue of “whether” is ignored — far from it — but it does suggest an alternative perspective is being taken on the problem.

Anyway, we now need to move away from this problem-setting stage and on to the problem-solving stage. We do this first by looking at three arguments in favour of punishing attempts and treating them as (roughly) equivalent to completed crimes. These arguments are: (i) the control argument; (ii) the harm prevention argument; and (iii) the deterrence argument. Let’s look at each in turn.


3. The Control Argument
The control argument appeals to the most common principle of responsibility, namely: an agent should only be liable for those results (and circumstances) that are within their control. From there it builds a case for treating attempts the same as completed crimes. Using the poisoning cases from earlier as a reference, this is the basic control argument:

• (1) An agent is (only) liable for the results and circumstances that are within their control.

• (2) In terms of results and circumstances, Mike from Case A exercised control over the exact same things (no more, no less) as Mike in Case B.

• (3) Therefore, if Mike from Case A is liable for something, Mike from Case B is liable for the exact same thing.

• (4) Mike from Case A is liable for the murder of Marge.

• (5) Therefore, Mike from Case B is liable for the murder of Marge.

Although the logic here seems valid enough, the conclusion is strange. How can Mike be liable for murder in case B when Marge isn’t dead? After all, murder requires an actual death, doesn’t it? Since the conclusion seems strange we might be inclined to think that at least one of the premises is dodgy, but let’s not be too hasty. I suspect the reason for thinking that the conclusion is strange stems from confusing liability and responsibility. This is something I’ve spoken about before. Roughly, liability is concerned with the price one has to pay for one’s actions; whereas responsibility is concerned with the outcomes that one actually brought about. Since this argument is framed in terms of liability, not responsibility, I think it makes sense: Mike must pay the same price in both cases because he controlled the same things, despite the fact that his actions led to a different result.

Even still, there might be something wrong with the premises. For instance, we might argue that control is not the only thing relevant to liability, that utilitarian principles can also be used to determine who should pay the price for something. In that case, premise (1) would be faulty. But that wouldn’t necessarily spell the end for attempt liability because utilitarian principles might just as easily be used to support the case for attempt liability. Indeed, this is exactly what the next two arguments hold.


4. The Harm Prevention Argument
Like the control argument, the harm prevention argument works from a very simple idea. The idea is that the purpose of the criminal law is to identify those wrongs which we would prefer not to occur. And since those wrongs are usually (and probably preferably) linked to harms, it would seem that the criminal law is designed to prevent harm. Think about it like this. The reason we classify murder as a crime is because we don’t want people to kill one another. And the reason we do this is because deaths are harmful and we wish to prevent harm.

But then, if our goal is harm prevention, why should we wait until the harm has been caused before intervening? In other words, why doesn’t the following argument hold?

• (1) The criminal justice system ought to prevent harm.

• (2) Intervening before a crime has been completed (but after it has been attempted) prevents more harm than intervening after the crime has been completed.

• (3) Therefore, the criminal justice system ought to be willing to intervene before a crime has been completed, not just after.

This argument is fine, in so far as it goes. The problem is that it doesn’t go far enough. While it might be true that, if we’re interested in harm prevention, we ought to try to prevent harm and not just step in after it occurs, this doesn’t say anything about whether we should hold someone liable for attempting a crime. In other words, the argument fails to answer the question: why can’t we just prevent the crime and leave it at that (without punishing the attempt)?

There are a number of possible replies (impracticality, epistemic hurdles etc). The next argument is one of them.


5. The Deterrence Argument
Let’s say we accept the basic tenets of the harm prevention argument. What we then need is some principle to plug the gap between intervention and liability. A deterrence argument might be exactly what we need. A deterrence argument will work off the idea that there are certain incentives that make people more likely to respond or behave in a particular way in the future. In many ways, the goal of any social engineer is to craft a network of incentives that encourages people to behave in ways you like, and deters them from behaving in ways you do not like.

When it comes to attempt liability, the proponent of deterrence is going to argue that intervention+punishment is going to be a more effective deterrent than intervention on its own. And if it is a more effective deterrent, then it is going to prevent more harm going into the future than an intervention.

This leads us to the following argument:

• (1) The criminal justice system ought to prevent as much harm as possible.

• (2) Intervening and punishing attempts (i.e. creating a system of attempt liability) will prevent harm than just intervening before crimes are completed (because it provides a greater deterrent).

• (3) Therefore, the criminal justice system ought to create a system of attempt liability.

This argument, which is subtly different from the harm prevention argument, provides some justification for attempt liability. The second premise would be supported by the deterrence-based reasoning that I outlined in the two preceding paragraphs.

Is the argument any good? Well, note the change in premise (1) from the version in the harm prevention argument. One might argue that this change is both crucial and problematic. It is crucial because without it the deterrence based objection to intervention without liability won’t work. It is problematic because it may claim too much for the criminal justice system. Should we really aim to prevent as much harm as possible? Probably not, especially if doing so will also prevent us from doing other things that we might value. Whether deterrence actually do that is a question worth pursuing. All I’ll say here is that by using deterrence as the justification for imposing liability, we may slide down the slope towards totalitarianism. After all, totalitarian societies might be very safe places to live, but they achieve this at the expense of other values.

Okay, let’s leave it there for now. In part two, we’ll look at the arguments on the other side of the debate.