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ATTEMPTS AND THE CRIMINAL LAW:
THREE PROBLEMS
Randal Marlin*
His act did not o'ertake his bad intent, And must be buried but as an intent That perish'd by the way: thoughts are no subjects; Intents but merely thoughts. 1
The view which that^ grand^ old^ jurisprudent,^ William^ Shakespeare,^ puts
into the mouth^ of^ Isabella^ is^ at^ a^ polar^ extreme from^ that^ of^ the^ Model^ Penal
Code. ' The offence referred to in Measure for Measure is fornication.
Angelo believes he is seducing Isabella and is thus committing the^ offence,
but, as we know, he has been tricked and is actually sleeping with Mariana,
to whom he was earlier engaged.^ In^ the Shakespearian^ convention,^ betro-
thal is as good as marriage, so in sleeping with Mariana, Angelo cannot
possibly commit the offence of fornication.
Morally, of course, given Angelo's knowledge at the time, he is every
bit as guilty as if he had completed the offence. But Isabella's plea sug-
gests the following dilemma: either Angelo should be^ acquitted,^ since^ the
evil was not in his deed but in his thought, or we should be prepared to
convict people generally^ for their^ wicked^ intentions^ alone.^ The^ latter^ horn
of the dilemma seems unacceptable for reasons that^ are^ not hard^ to^ find.
Fitzjames Stephen remarked that to punish men for their sinful thoughts
"would be utterly intolerable; all mankind would be criminals, and most of
their lives would be passed in trying and punishing each other for offences
which could never be proved". 3 Yet it also seems a gross injustice to let
Angelo go scot-free, especially when we reflect on^ his^ villainy^ throughout
the play.
Fortunately we can escape, in well-known ways,^ between^ the^ horns^ of
the dilemma. Angelo did^ not^ merely^ have^ an^ intention,^ he^ also^ acted^ on^ it
to what he thought was the point of completion. His case can^ thus^ be
distinguished from those where criminal design remains at the^ level of^ bare
intention. Thus, according^ to^ the^ Model^ Penal^ Code,^ Angelo^ would^ be
guilty of^ a^ criminal^ attempt.^ "^ Under^ section^ 5.01^ (1)^ (a)^ it^ is^ enough^ that
- 1 Department of Philosophy, Carleton University. SHAKESPEARE, MEASURE FOR MEASURE, Act V, scene i. (^2) AmmucAN LAW INsTITUTE, MODEL PENAL CODE § 5.01(1)(a) (1962).
4 SIR^ J.^ STEPHEN,^^2 A^ HISTORY OF^ THE^ CRIMINAL^ LAw^ OF^ ENGLAND^78 (1883).
Supra note 2. (^) Of course we would have to make the false supposition (^) that fornication is a^ crime^ in^ the^ Code,^ or^ else^ modify the^ example,^ replacing^ fornication with a^ genuine^ crime^ mutatis^ mutandis.
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the person with the criminal design "purposely engages (^) in conduct which would constitute the crime if the attendant (^) circumstances were as he believes them to be". Angelo (^) would be convicted, but so too, apparently, would a voodoo practitioner who tried to murder his enemies by sticking pins (^) in photo- graphic likenesses. So long as that was the only method (^) used, we might feel it excessive to apply criminal sanctions, especially in a society (^) such as ours, where there is little likelihood of widespread (^) alarm at the prospect of being so victimized. (^) Some further distinctions and explanations seem to be needed before we can accept the proposal of the Code. And (^) a little reflec- tion reveals many other horns (^) to the dilemma posed by attempts. Besides the questions raised (^) by so-called impossible attempts, there is the problem of drawing (^) a line between mere preparation and a full-blown attempt, and the problem of fixing an appropriate penalty for an attempt relative (^) to that for the corresponding completed crime. Pursuit of these questions (^) leads us quickly into the wider questions of the theory of punishment and the philosophy of criminal law. That (^) is part of the attractiveness of attempts. Study of them is a useful (^) way of putting our theories of punishment to the test. It is a helpful complement (^) to head- on treatment of the subject. Apart from this, the (^) intricacies of the subject- matter have a fascination all their own. In what (^) follows I shall address myself to three separate but more or less related problems in the (^) field of attempts. A full treatment of all the issues arising in this field would involve me in an examination of the criminal re- sponsibility of accessories, conspiracy, inciting and other pertinent subjects. I shall (^) confine myself to examining (1) the problem of factually impossible attempts; (2) the nature of the intention required for a criminal (^) attempt; and (3) the relative severity of punishment for attempts and for the cor- responding completed (^) crimes. In dealing with the first topic I assume a certain theory of punishment, (^) one which is widely held but which, in this context, will (^) be characterized very generally and not closely scrutinized. More attention is given (^) to rival theories of punishment in treating the third topic.
I. IMPOSSIBLE (^) ATTEMPTS
If we concede that the aim of the criminal law is not to punish wicked- ness as such, but only to apply such punishment as seems likely, (^) directly or indirectly, to reduce social (^) harm, then we have one obvious reason for not punishing attempts that could not possibly succeed. We (^) know that the voodoo practitioner cannot harm us with his (^) black magic. Some people might suffer from alarm, but they (^) can be protected by nuisance legislation. However malevolent the practitioner may be, a charge of attempted murder seems disproportionate to the offence.
Attempts and the Criminal Law
tempters have some misunderstanding about matters of fact. The means chosen are, contrary to their belief, not adequate to accomplish their illegal purpose. Can we then find some useful demarcation line to set off "impossible attempts" from other attempts, the two (^) varieties warranting systematically different treatment from the standpoint of social policy? We have seen from the case of the dud bullet that no useful division comes about if we classify as "impossible" those attempts where the attempter could not be expected to be aware of the circumstance rendering the attempt impossible. We (^) have also seen that no useful division results from making the attempter aware of the circumstance rendering the attempt impossible; for, on (^) the face of things, there is then no attempt at all. The following seems a more promising line of demarcation. Let us say that an attempt is "impossible" if a reasonable person (^) would know the means chosen to be ineffective. This category would certainly include (^) the voodoo attempts, and might include the case of someone who takes his own umbrella, thinking he is stealing (^) another's. It might or might not include the case (^) of a man shooting at a peephole, thinking a policeman is behind it. But it seems to provide the desired point of articulation. If a man has no reason for supposing that the policeman is behind a peephole, and fires at it in a totally irrational burst of wishful thinking and hoping to (^) killing the policeman, his case does seem to differ from that of a person who fires with some chance of success and misses. Assuming, then, that a satisfactory categorization of "impossible at- tempts" has been (^) achieved, what response is called for, and why? Should "impossibility" (^) be a defence against conviction for an attempt? The authors of the Model Penal Code state: "It has been suggested that the test of factual impossibility ought to be one of reasonableness: if the actor's failure is caused by a mistake or miscalculation which is a reasonable (^) one the error is not a defense; but if the error is unreasonable the actor is exonerated." '^ They immediately dismiss this rationale, however, saying that "[s]ince it cannot be affirmed that those (^) who make unreasonable mistakes are not potentially dangerous, the test (^) is obviously inadequate". Clearly, (^) impossibility by itself is not sufficient to exculpate an at- tempter. A person who makes an unreasonable mistake in seeking to carry out a malevolent design may be every (^) bit as dangerous to society, or even more so, than one who does not make an unreasonable mistake in pursuing the same objective. The would-be assassin who sets off a quantity of ex- plosives not making any inquiry into what would be the right (^) quantity for the job, might just as well kill far more people than he contemplated as kill no one at all. If, purely by chance, (^) the error is on the side of not killing,
(^6) AMERICAN LAW INSTITUTE, MODEL PENAL CODE, TENTATnvE DRA-r No. 10, 38 (1953). The reference is to Sayre, Criminal Attempts, 41 HAnv. (^) L REv. 821 (1928). 7Id.
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there seems no sufficient reason for exonerating him simply because his
belief that he could succeed was unreasonable.
But in other cases the unreasonableness of the belief appears systema-
tically linked to a lessened likelihood of causing harm. I know of no simple
formula which covers the variety of such cases, so I shall resort instead to
describing a few of them. Translated into a legal recommendation, the
argument I shall make is designed to support the proposition that the court
should have the responsibility for determining, in the light of all the circum-
stances of the case, whether impossibility is grounds for acquittal or mitiga-
tion, or is no excuse whatever.
Suppose, for example, the would-be assassin knows the proper quantity
of explosives for the job but uses a quantity far below that amount, un-
reasonably hoping to succeed anyway. Or suppose he fires a gun at his
prospective victim, hoping to kill him even though he suspects (rightly) he
is far out of range. The contemplated results are equally abhorrent, but
the author is not determined enough to choose a suitable means for effecting
it. He is therefore less of a danger to society and there is less reason to
consider him guilty of a criminal attempt than the person who believes
reasonably that he has a live bullet in his gun, shoots at close range, but fails
because a dud has been surreptitiously inserted in its place by a police agent.
The psychology of the actor is most important. A criminal intent,
once formed, is not easy to carry out by persons who have a normal moral
outlook. Many forces operate within the mind to stop a person from carry-
ing out the crime. Shakespeare and Dostoevsky have explored these con-
flicting forces in depth. One result of such conflicts may be that the inten-
tion takes a form lacking all chance of success. Some credit may be due
to the good character of the attempter for choosing insufficient means. Some
persons who attempt suicide arrange very cleverly that something will
frustrate their attempt at the last moment. Perhaps an analogous case is an
"attempt" at murder. The would-be malefactor sets out to do the deed
but is full of inner conflict, which leads to bungling, something a cool-headed
malefactor would have avoided.
Unreasonable mistaken factual belief, then, is not sufficient to exonerate
a person from criminal attempt, as we have already conceded. But the
unreasonableness of the mistaken belief may be evidence that the person
is not a significant danger, or is less of a danger, to society. This would
have to be determined from all the circumstances of the case.
Similar reasoning would lead us to reject convicting the voodoo artist,
since we in Canada would not expect success by such a method, either
directly or indirectly (provided practitioners do not show a tendency to try
more successful methods when the supernatural ones fail). '
8 Professor Louis Waller of Monash University, Australia, has put to me a teaser based on an actual case: what if a person pays the witch-doctor to get rid of an enemy, and the witch-doctor, instead of using incantations, gets a gun and kills tho man? One approach to this problem would be to distinguish between^ the^ cases^ where
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teers were led to believe that they were administering electric shocks at in-
creasingly high levels to a group of subjects, and that these shocks would
cause serious pain and perhaps even death to the supposedly affected subjects.
At the urging of the conductor of the experiment, a surprisingly large number
of volunteers administered the maximum shocks, beyond a point causing
intense agony to the "victim"-beyond a point, indeed, when the "victim"
had been "silenced" by the shocks. On the face of things, the persons ad-
ministering the shocks could be charged with attempted murder, and the
"victims" and the conductor of the experiment with conspiracy to attempt
murder (if such an offence were possible).
Yet any decision to prosecute the experimenters would violate basic
common sense, however intriguing the idea might be in theory. One reason,
which underscores my previous point, is the difficulty of accurately assessing
the state of mind of the shock administrants. As against the word of the
professor and perhaps others, there would be the common sense belief that
no university-sanctioned activity, even in psychology, could be so criminal
as to kill people for science! The public outcry would put psychologists out
of business-it can't possibly happen! Here, then, is one case where inten-
tions and motives were most probably in a thorough state of confusion. The
word of the administrant afterwards would not necessarily be definitive in
establishing his motive and intention at the time. We often reconstruct our
past intentions as being more rational than they really were.
Furthermore, the fact that there was no actual victim and that the
"shocks" administered could not have produced one, makes the actions of
the shock administrants less alarming to the general public. We do not feel
less secure for what they have actually done, although we have reason to feel
very insecure indeed for what the experiment reveals about the kinds of
things ordinary people apparently will do in obedience to authority.
In summary, once the problem of defining "impossible attempts" is
settled in the way described, there are sound policy reasons for treating such
attempts somewhat differently from ordinary attempts. But the mere fact
of impossibility should not constitute sufficient grounds for acquittal. It
should be taken into account by the court, together with the other facts of
the case, in order to best determine the propensity of the attempter to actually
cause harm to others. This propensity will vary from case to case, and
should be left to the determination of the court. By this criterion Angelo
might well be convicted, while the voodoo practitioner who restricts his
activity to voodoo would probably escape punishment.
II. THE MEANING OF INTENTION
The first section was mainly concerned with cases where intention to
bring about some proscribed harm was not in doubt; it was the likelihood of
fulfilment that was questionable. In the present section I shall be concerned
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with the extent and nature of the agent's intention in a criminal attempt. A subject (^) of current debate is whether the intention must in some sense be more "direct" (as explained below) for an attempt than for the corresponding completed crime. The law in Canada has tended, since Lajoie (^) v. The Queen, (^) Is to deny that the intention need be any more "direct". Before entering into that debate, it will be helpful to review some of the ambiguities surrounding use of the word (^) "intention". Anyone who does anything intends to do something. That is a (^) requirement for all human action which is not simply reflex (^) bodily movement. In a sense, then, we could expect intention to be a prerequisite (^) for any criminal attempt. But there is (^) a difference between an intention to do some unspecified thing, and a specific intention (^) to bring about some particular harm the bringing about of which is a criminal offence. (^) People often bring about some particular harm by an action which is intentional with respect to other consequences, (^) but unin- tentional with respect to the harm in question. To say (^) that the person brings about the harm by "intentional action" is in a sense true, (^) but may cause misunderstanding. The most obvious case where a person does not intend some conse- quence of his action is where he does (^) not even foresee that consequence. But, depending upon one's understanding of "intention", (^) there is also another very important case: one foresees a (^) certain consequence of one's action, but still, in a sense, does not "intend" it. Consider the gardener planting crocuses. (^) He foresees that squirrels will make off with some of them, but he does not "intend" them to do so, and he tries to (^) ensure that they do not. This usage has always seemed perfectly proper to me; "intention" (^) is used as a synonym for "aim", (^) "purpose" or "objective". The gardener does not "intend" (^) to feed the squirrels; i.e., that is not part of his aim, his purpose or his object. Not (^) all persons accept this narrower definition of "intention". Authorities (^) on either side are cited by Roderick Chisholm in his thought- provoking (^) article, "The Structure of Intention". " That the dispute has a history in legal thought (^) can be seen from the 1874 exchange between Rt. Hon. (^) Robert Lowe and Sir James Fitzjames Stephen during hearings of the Select Committee on the Homicide Law Amendment Bill:
[Lowe:] (^) [T]he second case is where a man causes death "with the knowledge that it will in all probability cause the death of, or grievous (^) bodily harm to, the person killed." Is not that evidence (^) of the intent to cause his death?- [Stephen:] I think it is evidence of the intent to cause his death, (^) but I do not think that the jury (^) would always think so by any means. You may go into refinements upon the word (^) "intended." I think people would usually say that a man (^) did not intend that which he did not wish for. It is meant rather to avoid a very natural quibble or misunderstanding. I The ambiguity of "intention" is often exploited for rhetorical (^) purposes. Used in the narrow sense, it may be illegitimately invoked (^) to disclaim re- I3 [1974] S.C.R. 399, 10 C.C.C. (2d) 313 (1973). 467 J. PmtosoPnY (^) 633, at 640, (^) n. 4 (1970). "-19 BRITISH SESSIONAL (^) PAPERS, HOUSE OF COMMONS 495 (1874).
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about the consequence, at least where the completed offence itself does not require anything more stringent than an indirect intention. In simple justice, there is a very strong case (^) to be made for the latter position. If an arsonist who is indifferent to the lives of possible occupants of a building can be convicted of murder when the occupants are killed, why should he not (^) be convicted of attempted murder when the occupants are saved only through heroic (^) and extraordinary efforts of firemen? In both cases there is the same indirect intention to kill (^) the occupants. Ex hypothesi, the amount of malice is the same. However, such reasoning is contrary to plain English usage. "At- tempt", (^) as ordinarily understood, carries with it an implication of direct intention. One who attempts something tries to achieve that thing-i.e., he has it as a goal or aim. To speak of "attempting to kill" when what is meant is "recklessness as to the fate of others" is simply grossly misleading. This is first of all a matter of English usage, but of coure there are non- linguistic ramifications. The ordinary man will feel that it is in some (^) way wrong to convict a person of an attempt (^) who lacks the relevant direct inten- tion. Perhaps (^) the accused deserves punishment, but, the layman will ask, why should the law pervert the language in order to convict? Why can't the prosecution be framed in intelligible language? There can be confidence in law only (^) so long as statutes and legal formulas mean what they say. Complicating the issue is the dispute that often arises (^) over whether the completed offences themselves require direct intention (e.g., murder and the controversy sparked by D.P.P. v. Smith "). Anyone unhappy about com- pleted crimes for (^) which the mens rea may consist of an indirect intention will be unhappy a fortiori when such intention is sufficient to constitute an attempt. If we allow, as I (^) think we must, that indirect intention is sufficient mens rea for some crimes, then in justice there (^) ought to be some way of penalizing those who would succeed in committing such crimes except (^) for a last minute fluke, intervention, or other unforeseen circumstance. The difficulty lies in producing a general formula to cover all such cases without also including mere preparations, cases of resilement and the like. The formula would have to fix some required level of probability that an event which did not occur would have occured but for some intervening circumstance. (^) One would expect the formula to adjust the required (^) level of probability to the seriousness of the (^) crime contemplated. A risk of causing a minor skin wound might be permissible where the same risk of causing death would not be. (^) Furthermore, and a matter of even greater difficulty, the formula ought to take into account not just the probabilities that would be reckoned in an intelligent, objective assessment, but also the probabilities actually reckoned by the actor at the time. The last point is worthy of brief elaboration. The actor's assessment of probabilities is important from the standpoint of a retributive theory (^) of
20 D.P.P. v. Smith, [1961] A.C. 290, [1960] 3 All E.R. 161.
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punishment, but not merely from such a standpoint. It is sometimes over-
looked by those who discuss Holmes' "objective liability" that Holmes him-
self provided a rationale for^ taking^ intention into^ account.^ His^ main^ theory,
for which Holmes is justly famous, is that the law cannot afford to make
allowances for individual shortcomings,^ but^ must^ set standards^ of^ foresight
which "the ordinary^ man^ of^ reasonable^ prudence"^ would^ be^ expected^ to
follow. 21 Any individual may be morally without stain and yet fall short of
the standards, if he has less than ordinary intelligence or prudence.^ But
"the law requires [a man] at [his] peril^ to^ know^ the^ teachings^ of^ common
experience... "^. 2 In short, Holmes writes that "[a]cts should be judged by
their tendency under the known circumstances, not by the actual intent which
accompanies them". " On the face of it, this last statement justifies Hart's
assertion that^ Holmes^ "seeks^ to^ prove^ that^ there can^ be no reason^ why^ the
law should concern itself with^ the^ actual^ state^ of^ the^ offender's^ mind^ or
enquire into his actual capacity to^ do^ what the^ law^ requires".^^24 But^ Holmes
also acknowledged that intent was important,^ not for^ measuring the^ wicked-
ness of the offender, "but to show that [the act] was likely^ to^ be^ followed by
hurtful consequences". ' The intent, Holmes says,^ serves^ as^ "an^ index^ to
the external event which probably would have happened ... and. .. if the
law is to punish at all, it must, in this case, go on probabilities, not an ac-
complished facts". 2"
Even if we adopt Holmes' theory, then, provided we^ adopt^ the^ entire
theory, we have reason to suppose that the law should take an interest in the
actor's subjective calculation^ of^ probabilities.^^2 For^ the^ person^ who^ know-
ingly runs^ a^ high^ risk^ of^ causing^ harm^ is^ more^ of^ a^ threat^ than^ the^ person
who runs the same high risk but is not cognizant of it-rather, thinks the
risk much lower than^ it^ is.^ The^ assumption^ is^ that^ the^ former^ person^ is
more malevolent than the latter, and^ that^ malevolence^ is^ more^ likely^ to^ be
harmful to society than mere ignorance or ignorance coupled^ only^ with^ a^ low
level of malevolence. That assumption may meet with some resistance:
more harm is caused by stupidity than by deliberate intention to^ cause^ harm,
it might reasonably be said. But even if this true in general, it does not
follow that malevolence-cum-ignorance has^ an equal^ or^ greater^ tendency^ to
cause harm than does malevolence alone^ (i.e.,^ where^ the^ actor^ knows^ the^ full
extent of the risk). It is the relative tendency^ to harm^ that^ must^ be^ weighed.
Without having decisive evidence in^ support^ of^ the^ view,^ I^ would^ think^ that
because life^ provides^ so^ many^ occasions^ for^ selfish^ interests^ to^ come^ into
21 0. HOLMES, THE COMMON LAW 57 (1881).
2Id. 23 Id. (^) at 66. 24 Supra note 17, at 244. The statement seems (^) exaggerated in view of Holmes' other remarks cited immediately^ infra. ISupra note 21, at 68. '2^6 d. at 72. 271 acknowledge that I am pressing Holmes' point about (^) intention further than he envisaged.
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be the problem of drawing demarcation lines separating those acts with "un-
successful" indirect intentions into acts that are criminal and acts that are not.
The reply would be cogent if the law had no other means of punishing
the "unsuccessful" attempts mentioned. But there are other means. These
attempts might be considered as varieties of recklessness or, in milder cases,
negligence. Attempts involving merely indirect intention raise problems of
the same type as are raised by recklessness and negligence cases. To con-
sider these cases as attempts would be to obscure a fairly clearly definable
branch of law. Why bring two dissimilar sets of cases under the same
heading? The effect would be to muddy the clearly defined set, and to give
a specious clarity to the more problematic set, inducing people to misappre-
hend the complex nature of the policy issues involved.
Logically, cases of "successful" indirect intention ought also to be
treated as cases of recklessness or negligence. This classification is contrary
to Canadian law, which treats some cases of merely indirectly intended
killings as murders. But "constructive malice" seems to have ended in
England with the Criminal Justice Act of 1967, ", and we may some day have
a similar reform in Canada.
L. SEVERITY OF PENALTIES FOR ATTEMPTS
I turn now to the question whether attempts should be punished as
severely as the corresponding completed offences. I shall specifically con-
sider the kind of case where the attempt fails, not because of any lack of
resolve on the part of the attempter, but because of some chance event-the
victim moves just before the gun is fired, or is protected by a metal cigarette
case in his shirt pocket, or the like. Ought the attempter to receive a lesser
penalty than the successful murderer in such a case?
The question raises fundamental issues in the philosophy of criminal
law and punishment. These issues have recently been reviewed by Lawrence
Becker, " who concludes that on balance the arguments weigh in favour
of prescribing equal penalties for attempts and for the corresponding comple-
tions. I do not find Becker's argument convincing, although I share his
general philosophy of criminal law. I am concerned here to examine the
deficiencies in his argument.
Becker believes, and I agree, that utilitarian arguments based on reform
point unambiguously towards equal treatment for attempts and for comple-
tions. He allows another view I would accept: that considerations of deter-
rence point toward giving lesser penalties for attempts than for completions.
31 C. 80, § 8. 32 Becker, Criminal Attempt and the Theory of the Law of Crimes, 3 PimLosopnIY AND PUBLIC AFFAIRS 262 (1974). 33 The question is disputed. For contrary views, see Dworkin & Blumonfeld, Punishment for Intentions, 75 MmD 396, at 398 (1966), and Hart, supra noto 17, at
- In support of the view adopted here, see Diet], On Punishing Attempts, 79 MIND
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These arguments he sees as being of roughly equal weight. The problem is resolved for many people, he^ says,^ by^ the^ fact^ that^ attempts bring^ about^ less harm than the corresponding completions. This difference in harm leads them to opt, in the final analysis, for different penalties. By^ contrast, Becker's position is that when we look specifically at^ the^ type^ of^ harm^ the criminal law is concerned with, we shall see that the harm is the same^ for attempts as for completions; the balance of arguments will therefore weigh in favour of an equal penalty for attempts^ and for^ the^ corresponding^ com- pletions. Schematically, Becker's argument is as follows. Many acts,^ such^ as torts or promise-breakings, cause social^ harm,^ but^ these^ are^ not^ within^ the purview of criminal law. The acts we typically treat as criminal are those which tend to lead people to depart from peaceful behaviour and to look to their own self-defence, thus promoting general social instability. Murder is a prime example of the kind of act the criminal law is designed to deal with. A fitting name for the kind of response criminal acts generate is "social volatility". (^) Not all social harms are (^) socially volatile harms. (^) If we concentrate on the socially volatile harm^ done^ by^ an^ act,^ then,^ Becker thinks, we shall be led to treat attempts and^ corresponding^ completions^ in^ the same way. As he puts it:
Now it seems plausible to^ suppose^ that, at^ least^ for^ many^ sorts^ of^ crimes,
no less of such harm is done by attempts than by successes, for the break- down of the assurance of social stability (i.e., of one agent's contribution toward it) is complete once^ the^ attempt^ has^ been^ made, and made^ known.^ "
At first glance, this assumption is not at all plausible, if we take killings to be included in the "sorts of^ crimes"^ referred^ to.^ For^ as^ Becker^ himself acknowledges, such public reactions as desire for revenge, dislocation of the political structure, feelings^ of^ frustration,^ etc.,^ are^ greater for^ actual^ killings than for attempts. Further argument seems^ necessary.^ As^ I^ understand Becker, that argument comes in the form of further observations^ on^ the question of eliminating "extraneous" social^ harm-harm^ that^ is^ not^ speci- fically criminal. The argument, which I shall try to show^ is^ unsuccessful, draws on two sources of support.
- The argument rests first of all on an appeal to a narrower than ordinary sense^ of "social^ volatility".^ Becker^ says^ that^ social^ volatility^ is the social harm "consequent to^ the^ process^ of doing^ the^ major^ sorts^ of conduct we punish criminally".^ "^ '^ This^ suggests^ that^ "social^ volatility"^ is not the harm resulting directly from the criminal action-say, the death of a person in a murder case, and the consequent public alarm-but rather the alarm stemming from public^ awareness^ of^ the^ activity,^ common^ to both attempts and completions. The idea is that this alarm occurs as soon as the
130 (1970). Becker thinks the view is contestable, but accepts it for the sake^ of argument. "Supra note 32, at 276. Id. at 273.
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"equal protection under the law" would thus be violated, since potential
murderers (^) would not be as deterred from killing the unknown or unpopular person as they would be from killing the public figure. ' The problem with Becker's argument is that it ignores the very (^) con- siderable differences (^) in the kinds of cases against which the "equal protec- tion" principle is brought to bear. It is one thing for the law (^) to withhold sanctions against (^) a criminal simply because he is a powerful person. It is quite a different thing for (^) the law to state, as a general rule, that offences against a particular class of victim will be dealt with more severely because of the much greater threat (^) to social stability occuring when members of that class (^) are the victims of a crime. The injustice is obvious in the former case, while it is debatable in the second. It is one thing for the law to provide a harsher penalty for (^) an offence because by chance it received wider than normal (^) publicity (perhaps the editors were hard up for news on the day in question); it is (^) quite a different thing to do so for an offence whose nature (^) is such as to attract more wide-
spread publicity, horror, and alarm. One killing is by stabbing, another by
slow torture. (^) The latter attracts more attention and creates more alarm. There is nothing wrong with providing a greater penalty for the latter offence. Now the completed offence naturally attracts more attention and creates more alarm than the (^) corresponding attempt. One's sympathies and anti- pathies are more readily aroused. The increase in publicity, and the harm attendant on this increase, are systematically related to the (^) nature of the offence, not the peculiarities of the victim, or the vagaries of reporting. (^) On the face of things, there (^) is no compelling reason why, if we are committed to providing heavier penalties for offences likely by their nature to create more alarm, we must also be committed to providing (^) heavier penalties for offences
The "equal (^) protection" principle may not be as sacrosanct as Becker thinks. The point is not crucial to his argument, but it is worth noting the (^) following: in the first place, we do in Canada (at the time of writing) attach a different penalty to the killing of police officers and prison guards. They are (^) therefore "more protected" (as- suming, for the sake of argument, that capital (^) punishment is an additional deterrent, which is (^) doubtful). Secondly, we place criminals in jail where their safety is fre- quently in greater (^) jeopardy. We do not give them equal protection under the law in any practical sense. Thirdly, it is well (^) known that certain wealthy suburbs are able to afford better police protection (^) than poorer areas in a city core. There is de facto unequal protection. Fourthly, we may want to pursue other desirable policies (^) that have as a foreseen but unwanted by-product the unequal protection of different classes of persons. For example, we (^) know that a high proportion of murders are the result of domestic or very particularized (^) circumstances. The threat is not felt at large and the principle of weighing penalties on the basis of social volatility might lead us to impose a lesser sentence on such a murderer than on a professional killer. It is also true that the typical domestic murderer has less need of reform than the professional killer. Most (^) of us would agree that the latter should get the heavier penalty as a matter (^) of policy. But it might be said that there is then "unequal protection" with regard to two classes of persons. For the potential victim in a domestic murder (^) is then less protected than the potential victim of a hired killer. Consider also (^) the infant who may be the victim of an infanticide. It might be said that (^) the law gives the infant unequal protection against the possibility of its mother (^) killing it, since the penalty (^) for infanticide is considerably less than that for murder.
Fall 1976]
Ottawa Law Review
in which the peculiarities of the victim, vagaries of reporting, etc., result in
abnormally widespread alarm. Indeed, there is a reason why commitment
to the former proposition should not imply commitment to the latter. We
expect our law to indicate clearly to those contemplating crime the penalty
they may have to suffer. We know the general tendencies of various kinds
of criminal acts, their effect on social stability, etc., and we can apportion
penalties accordingly. But we do not know in advance the chance effects
on social stability brought about by "vagaries"; that is why we call them
"vagaries".
Becker would no doubt reply that despite the differences I have pointed
out among the kinds of cases he deals with, there is an overriding similarity,
which justifies putting them on the same footing. His central point would
perhaps be that the philosophy by which offences are graded according to
their social harms would lead us to at least contemplate doing things that
are now beyond the pale. According to that philosophy, it would be think-
able to examine the possibility of providing heavier penalties for murders of
movie stars, politicians, etc., if such offences could be systematically linked
with greater social instability.
To this I have two replies. The first is that some things that are initially
thinkable reveal themselves after some thought to be "unthinkable". With-
out departing from the social harm philosophy, we could quite easily reject
discrimination between classes of victims as being productive of more harm
than good. The idea that some persons "rate" higher on the victim scale,
so that killing them would warrant a heavier penalty than killing people
lower down the scale, is well-suited to promote dissension in society.
Secondly, I do not myself think that "social harm", as usually conceived,
is the whole story as regards the philosophy of punishment. The criminal
law also has the function of underscoring our most basic social values. "
Prevention of harm is one of our most obvious values, but we also believe
in, and treat as important, and equal intrinsic worth of all human beings.
We may invoke the latter principle to prevent discrimination between types
of victim, without undermining the "social harm" argument which leads us
to differentiate between attempts and corresponding completions.
My argument has been that Becker has not successfully undermined the
"unequal harm" argument, and therefore that the balance of arguments still
favours the common practice of imposing a lighter penalty for attempts than
for corresponding completions.
I conclude with some further observations and worries. The principle
of "unequal harm" looks punitive if we say that, as between two equally
mal-intending agents, the one whose act results (through chance) in a com-
pletion should get a heavier sentence than the one who (again through
chance) fails in his attempt. On the other hand, it seems generous if we
say that the one who thus fails by chance should get a lighter sentence. On
37 This point is stressed (^) in the recent report of the LAW (^) REFOR CoMMISSION OF CANADA, OuR CRImINAL LAW (1976).
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