Technically Victor could be convicted under these circumstance, since he does fit the definition for "Attempt". Although, not one District Attorney's office will charge him with anything. There are more elements to the case. Due to the fact that he did not physically harm her or even cause her death. It would like a follower of the Catholic faith praying to God to smite down someone. Then they happen to get hit by lightning and die. He can not be charged even if he confessed to praying to God to do this, no matter how much he believes he is guilty. The D.A. knows he/she cannot get an unanimous guilty verdict of a belief of voodoo.
Kadish disagrees that the law is defined in outcomes of an event. Kadish does not like the fact that someone will get less time if they become unsuccessful in comminting the crime. I do not agree with Kadish's outlook on this. The law cannot play the role of Psychic and live in the mystical land of 'What Ifs'. The Law deals in the realm of concrete evidence and sound theory. You get punished for what you have done, not what you could have done. It sounds like Kadish would love to live in the time of Minority Report where people are arrested before they commit the crime.
Kadish would criticize the 'harm doctrine' saying that it rewards criminals for failure to complete the crime. They should be charged and convicted of the full crime whether or not they completed the crime. He also states that it would prevent crime more if this was the law, especially if we did reward failures. I Disagree with him again, simply put, on murder charges you can not be charged with murder if there is not a dead body to account for. That theory just sounds ridiculous to me. On minor crimes the punishment is more severe depending on the crime.
According to Kadish we still have the harm doctrine because of our moral and ethical views. We as a society want to get justice after a crime is committed. As well as having a hard time to change beliefs based on our emotional ties. Once again I do not believe this is the case. If as a society we were so hell bent on getting justice and retribution then every state will still have the death penalty, with the eye for an eye attitude like Hammurabi believed which he thought prevented crime.
Andrew, thanks for correctly pointing out that Victor would not be charged in a court of law, though his act fits the definition given by the MPC (which is not statute). Your analogy is well taken, though praying is a less “tangible” act than stabbing a voodoo doll.
ReplyDeleteKadish does not necessarily disagree with the impact of the result on criminal punishment, he merely argues that it is not rational to determine punishment based on results that occur by chance and not the actor’s responsibility. You claim that the law “cannot play the role of Psychic.” But mens rea is an important factor in criminal law, and this does not imply that people have to read minds. You also say that the law cannot “live in the mystical land of ‘What Ifs’.” The law does live in that world, so to speak – it punishes offenders that could have caused damage but did not actually cause any harm. For example, someone firing a gun in a crowded room and nobody gets hurt would still be charged with reckless endangerment, and a person who shoots another person with the intent to kill, but by chance the victim is entirely unharmed, would be charged with attempted murder. So people get punished for what they have done and for what they could have done. The problem is that the law of attempts contains an inconsistency: On the one hand, the result is relevant when it reduces punishment, on the other hand, crimes that cause no harm at all are still punished.
Also, note that the “failure to complete” a crime is not the same as “being unsuccessful” in committing a crime. Crimes of attempt are merely unsuccessful, and Kadish points out the difference. Kadish maintains that a person who desists last minute indeed deserves less punishment (Kadish would not like preventive incarceration, as you claim), but someone who unsuccessfully committed a crime did not desist. For example, a defendant who aims and shoots at the victim at close range but fails to kill the victim does not desist, instead the failure to succeed is due to chance, not the defendant’s decision.
Finally, Kadish does not disagree with society’s intuitions about punishment. He points out though, that these moral views are based on emotional ties that are not rational, yet they influence the law. Rationally, punishment would be based on the actor’s control and responsibility over her act. Instead, there is a long tradition of the relevance of harm that is outside of the actor’s control. You completely lost me with your conclusion with reference to Hammurabi’s code. The very fact that the actual harm plays a role is the traditional view of Hammurabi’s laws. The purpose of these ancient laws was not prevention, but retribution and restitution. The idea of “lex talionis” (an eye for an eye) is based on the actual harm done, and accordingly punishment should be such that it inflicts the same harm on the offender as the offender inflicted on the victim. (By the way, according to Hammirabi’s law, the punishment for a lost eye depends on the victim’s and the offender’s social status). According to this view, if someone acts in the attempt to inflict harm (e.g. shoots at someone with the intent to kill) and misses, such that the victim is unharmed, this offender should not be punished at all – no harm, no punishment.
Bottom line, then, the fact that the law reduces punishment is based on society’s intuitions about the relevance of harm, just as Hammurabi’s code, and Kadish argues that this is not rational.