First, "far more forgiveable" is probably an overstatement, although it does depend on perspective. The maximum punishment for attempted murder in most states is quite serious, although the death penalty is probably ruled out because of the S.Ct.'s cases. Apart from the death sentence, a standard maximum for attempted murder is in the order of twenty years. Even though a standard maximum for murder is life, the actual time served typically depends on other factors than the original conviction. Still, there is a difference, raising the question in the post below, to-wit: A shoots at C and kills him, which is murder (put aside all subtleties of defenses, etc); B intends to point shoot at C, pulls the trigger, etc., but the gun jams, and B had no way to know that it would--attempted murder treated differently from murder.
How is this "defended"? It is defended as the consequence of legislative action that does not need to meet the standards of philosophy or mathematics--which was the point of my first post. Still, what could explain, if not justify it? Here the literature is robust, and I can only suggest some of the responses, although again I'd be happy to either elaborate, off-list presumably, or send cites. First, note that criminal punishment has multiple justifications, and they can conflict. A pure risk utilitarian may think that there may in fact be a differential risk in the classes of cases comprising murder and attempted murder, and further that the difficulty of legislation and its implementation argue for crude sets that do justice overall, even though at the cost of some injustice in individual cases. In short, in the hypo, maybe there is no difference, but it may be true that in most cases where the relevant results do not occur as planned there is a difference, and the best way to optimize our interests is to employ these rough rules. Similarly, such a person may conclude that a distinction between murder and attempted murder will reduce harm. If B is treated as A once he pulls the trigger and the gun jams, he has an incentive to unjam the gun and kill the victim who otherwise may testify against him--and he's no worse off for doing so. A deterrence theorist may conclude similarly. There are many kinds of retributivists as well. Some believe that harm done should be the main determinant of retribution. Others believe that that is what society at large believes, and that the law must respect in the main the conventions of society, even if the legislator, more finely attuned to the nuances of philosophy and mathematics, believes that these views are not well taken. The most interesting point about the question is its implicit assumption that matters in the law must be reducible to simple justifications. This is a mistake. Law is more like biology than particle physics in this regard. Even more deeply interesting, societies that have tried to reduce law to simple justifications invariably have turned out to be tyrannical. A justificatory mess goes hand in hand with democratic regimes, which together are bulwarks against oppression, although obviously not always sufficient. My apologies for the extended response. I don't know if the members of the list have any interest in these matters, and I would consider it a favor to be informed that you don't, as I do not want to clutter up in boxes with irrelevant and uninteresting materials. So please do not hesitate to tell me that such matters exceed the appropriate parameters. On the other side of that coin, I would like to express my personal appreciation for the discussions that you all have, which is both interesting and helpful to me. best regards, RJA >For instance, a clear distinction is made between murder and attempted >murder, with the latter being treated as far more forgiveable than the >former. This is true even in cases where the actions and intentions and >therefore (IMO) the culpability of the perpetrator are identical. How do >lawyers defend this? > >regards, >Konrad Ronald J. Allen Wigmore Professor of Law Northwestern University Phone: 312-503-8372 Fax: 312-503-2035
