Academic journal article Journal of Criminal Law and Criminology

Foreword: The Criminal Law and the Luck of the Draw

Academic journal article Journal of Criminal Law and Criminology

Foreword: The Criminal Law and the Luck of the Draw

Article excerpt

I propose to consider what to make of a doctrine of the criminal law that seems to me not rationally supportable notwithstanding its near universal acceptance in Western law, the support of many jurists and philosophers, and its resonance with the intuitions of lawyers and lay people alike. This is the doctrine--the harm doctrine, I'll call it--that reduces punishment for intentional wrongdoers (and often precludes punishment for negligent and reckless wrongdoers) if by chance the harm they intended or risked does not occur. I will also consider a corollary of the harm doctrine which offers a full defense if it so happens that, unbeknownst to the defendants, the harm they intended could not possibly have been done.

Whether the harm doctrine can be justified is, as George Fletcher has said, a "deep, unresolved issue in the theory of criminal liability."(1) Indeed, a German scholar, Bjorn Burkhardt, recently concluded his comparative review of the law on this subject with the sobering words that "little progress has been made toward a solution of this issue in the last two hundred years."(2) He continued: "The arguments of the past still dominate contemporary discussion.... [H]ardly anything of substance has been added."(3) And he concluded: "In the final analysis, it is questionable whether a compelling and rational argument on this issue is possible."(4) That may well be so. The debate over the issue remains unresolved notwithstanding the earnest attention of generations of scholars. But though the ground is well trod,(5) the subject continues to have a fascination for those of us who worry about the criminal law (perhaps just because it has defied successful resolution), and I am not immune to its attraction.

I should explain at the start what I mean by saying that the harm doctrine is not rationally supportable. I mean that it is a doctrine that does not serve the crime preventive purposes of the criminal law, and is not redeemed by any defensible normative principle. Suppose, for example, the law provided that any crime committed during the night of a half-moon may not be punished with more than one-half the punishment appropriate on all other occasions. This distinction is patently irrelevant to any crime preventive purpose of the criminal law. Yet it might still be rationally supportable if it could be justified by moral principle. But no such principle can relate guilt or desert to the phases of the moon. Here, then, we would have an extreme instance of a rationally indefensible doctrine. One qualification: sometimes the law must defer to people's irrationalities to maintain the acceptance needed to govern. This might possibly be the case even with my half-moon doctrine of punishment. The doctrine, however, would still be rationally indefensible, even though its adoption by the law would not be.

Of course our criminal law has for centuries included many irrational doctrines--whole Augean stables full. Some of them were that way from the start. Others got that way when changed conditions made them anomalous, like the murder rule requiring the victim to have died within a year and a day of the injury.(6) But these differ from the harm doctrine in that they are widely recognized as insupportable, and their long persistence in the law is simply evidence that the law is slow to change. The harm doctrine is special (although, as we will see, not singular) in that large segments of the legal and lay community regard it as sound.

I will begin by setting out the law that most clearly exhibits the harm doctrine at work. This is the law governing the punishment of failed efforts to do some prohibited harm (the law of attempts) and of actions that create the risk of the harm without producing it (the law of culpable risk creation). These rules are well known and I will only sketch them briefly.

First, the law of attempts. Consider the case of a man who stabbed his son in anger, pleaded guilty and was convicted of a crime equivalent for our purposes to attempted murder. …

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