Jamie_L

That's a bit of a strawman. Suppose the penalty for speeding were more severe (fine + community service + driving restrictions, etc), especially in areas where striking pedestrians is a serious risk. If you are not speeding dangerously (say you're just going a few mph over the limit), and there are no other crimes involved that place additional blame on you (wreckless driving, criminal negligence, etc.) then I think it can be argued that your punishment shouldn't be any more severe because you happen to hit someone. Of course, "hit a pedestrian" doesn't really give enough information. If it's entirely your fault, it seems like you were probably doing more than just speeding: there's probably be eithe excessive speed, wreckless behavior, etc. This would be reflected in the crimes you were charged with. If it really falls in the category of an "accident", then I don't see that the punishment for the speeding infraction itself should be any more severe. The pedestrian's family can still sue you for the damage you have caused.

This statement seems to contradict itself. Her actions don't deserve less punishment, but they deserve less punishment. If her actions are exactly as criminal, then it seems they warrant exactly the same punishment. If they don't warrant the same punishment, then one action is more criminal than the other. It appears you are arguing that it is more criminal to do the exact same thing, but have it result in a more severe outcome. If that is your arguement, then you have to accept that this means it is less criminal for someone to do exactly what Mallard did, but have it result in near-death rather than death.

Okay, now we're getting somewhere. This comes close to, but doesn't completely answer the question a lot of people are side-stepping: "What is the purpose of the punishment?" The basic sentiment present hear appears to be: People who cause more harm should have more harm done to them.

Correct me if I'm wrong, but this seems very clearly to be a case of vengence. Somebody died, so somebody has to pay. It's not "fair" for someone to get the same amount of time if more harm was caused, even if they did exactly the same thing as someone else. Am I off-base here?

I'm not saying vengence is necessarily without merit, but likewise its not obvious that it's a good idea either. So: Should vengence play an important role in the justice system? If so, why?

Is vengence part of the glue that holds civilized society together? Is it important for people to know that the government will exact vengence in their name on those who deserve it - in a calculated, controlled, and metered way? There are some, I'm sure, who would argue that vengence is not really a very enlightened philosophy of justice. Certainly, in the back of my mind, I wonder if "payback" is really what our justice system should be about.

Any thoughts?

Jamie

brighid

It isn't less criminal, but it is less punishable and that is the difference. If the victim didn't die she should not be prosecuted for murder, whether that is through blind luck or action taken on her part to help the victim later. There ARE mitigating circumstances and things such as this cannot be broken down into black and white scenarios. That is why we have the legal system we have, however flawed. In countries without such distinctions a thief has his hand cut off whether he stole a loaf of bread because he was starving, or stole money to buy drugs. I am not sure that either deserve that punishment, but in our system the mitigating circumstances would play a part in the punishment as it should.

Brighid

Nowhere357

I lose you at this step. There are mitigating circumstances and things, yes. Why does that require an outcome based system? Why can't they be accounted for when determining what actions were committed?

brighid

I am not sure I follow. They are accounted for when determining what actions (and results) were committed and that is the reason why we have distinctions such as attempted murder, aggrevated battery, battery, etc. The punishment/sentencing phase is what is effected most by those mitigating circumstances as each case is unique onto itself and must be evaluated thusly.

Edited to add: Such as the example I gave regarding theft. Two people stole something and therefore are guilty of the crime of theft. One stole a loaf of bread because he was starving. This is his mitigating circumstance and should be used when evaluating punishment. Should a man who stole a loaf of bread because he was starving suffer the same sentence a man who stole money to buy drugs (in this case the loss of a hand?) They are both guilty, but both are not deserving of the same punishment.

Brighid

Pyrrho

The problem with your request is that you will probably only be satisfied with something that would necessarily involve injustice as a logical consequence of your proposal, rather than result in injustice in practice. With punishments based solely on what is intended and the particular actions taken, without regard to the results, one may be charged for more than what one really intended, as there is always uncertainty about intent. This will happen because of what people are, not because it follows logically or of necessity from the theoretical approach you are suggesting.

With no one actually dead, I cannot be charged with murder. This protects me from others making mistakes about my intentions. True, I can still be unjustly charged with attempted murder, but I cannot be unjustly charged with murder. With your proposal, there is not even that small bit of protection.

Furthermore, with our current system, "attempted" criminal actions are somewhat of an add-on to the system of punishing people for what they do, and as such, we do not tend to look for crimes that have failed; these tend to be punished only when they are particularly obvious. With your system, there is more likely to be a search for such "crimes" (since that would be the system), and therefore you are more likely to be prosecuted for some intent that you never had.

Again, this is not a logically necessary consequence of what you are proposing. But it is something likely given what people are like. That makes it undesirable, even if theoretically it had some advantage. The law, for all of its flaws, must be oriented toward the practical as much as possible. What works best in practice is best, not whatever might be theoretically best.

ohwilleke

First, one or two states (Vermont, was one for a while at least) have Good Samaritan laws, although they are rare.

Second, what distinguishs the Mallard case from the general rule that there is no duty to aid, is that she caused the harm. While few states require bystanders to help, most impose a duty on someone who caused the problem in the first place to help if they can. And, most even say that someone who takes actions that prevent others from helping has a duty to help even if they did not cause the problem in the first place.

Jamie_L

Looks like we're all losing interest in this thread, though that's a shame, because I feel like we're still not quite to the meat of the matter.

Why does a different outcome for equally criminal actions require a different punishment?

In a civil arena, where compensation is the key issue, outcome will weigh heavily in determining damages.

But what objective is outcome-based criminal punishment trying to achieve? Criminal punishment does not compensate society. So what are we after?

It seems to me, criminal punishment has the following potential purposes:

1) Deter of future crimes
2) Protect society from this and future criminals
3) Correct behavoir of this criminal
4) Exact vengence upon this criminal

In my judgement, outcome-based punishment only serves #4. Or, if it does serve 1-3, it is the same or worse at it than action-based punishment. As such, I question it's value, since I don't think government should be in the business of vengence.

My questions to all are:

Does outcome-based punishment contribute to 1-3 more than action-based punishment? If so, how?

Is there another purpose for criminal punishment that I have not listed, which outcome-based punishment serves better than action-based punishment?

Unless we're all tired of this topic, in which case I'll stop pestering everybody.

Jamie

never been there

I don't really believe it has any effect on criminal behaviour, but I think the logic behind a lesser punishment for attempted murder (being an unsuccessful murderer) is that if our perp was facing 25 years either way, he would try a lot harder to make sure the victim was dead.

So society is in priciple a little safer the way it is.

Jamie_L

On the flip side, if someone knows they'll get lesser punishment if they fail in their crime, aren't they more likely to say "what the heck?"

I think both these arguements, however, are a little absurd. I don't believe anyone is thinking about the differential in punishment when they commit a crime. They are either not thinking about the punishment at all, or they are worrying about significant punishment in general. If someone falters at the last minute, it's not because they are thinking "Whoa, I only want to get charged with attempted murder, 10 years is a lot better than 25." It's because they think "Oh my God, I don't want to do this." or "I don't want to go to prison."

As for lesser crimes, clearly the outcome-based system encourages commission of risky lesser crimes. Running stoplights is a great example. A ticket if you run a light. Stiff punishment only if you hurt somebody. Result: no one thinks they are going to hurt anyone, so they don't mind risking the small penalty.

A similar effect may hold true for serious crimes. I doubt many people who attempt to commit murder expect to fail. So why would they even be thinking about the lesser penalty for attempted murder? They are expecting to succeed at murder.

Jamie

Pyrrho

I already answered this in a response to Nowhere357, which I will repost here for your convenience: