Alonzo Fyfe

Actually, I am going to make the bold assertion that the problem of attempts really is a problem, and identifies an inconsistency in our concepts of justice. Any argument offered in its defense is going to turn out to be a rationalization -- an argument perceived to be valid by the person making it because it yields the conclusion that he wants it to yield.

There are three things that can be said that may provide a partial defense of the doctrine of treating attempts as less severe than the real crime.

With respect to attempt, we do not in fact have as much evidence about the perpetrator's intentions as we do with actual death -- perhaps the failure to kill was do to some subconscience wish on the part of the accused not to kill that prevented him from ensuring success.

Also, in tort law, we hold that compensation for damage does not depend on the intent of the individual who committed the tort, but on the damage done. Run into somebody's car, and you are liable for the costs of repair -- whether that is $100 or $10,000. The difference may be a matter of luck, yet it is the person who performed the tort who is considered the person responsible for bearing the costs of that bad luck.

Third, we want people to fail. If the weaker punishment for attempt can somehow, even subconsciously, push the agent into being a little less careful, then there is a benefit to be obtained by charging less for intent.

Yet, none of these cases fully defend the difference with respect to intent and success where we can prove intent beyond a reasonable doubt, where we are talking about criminal punishment rather than compensation, and where the agent truly did take care to ensure success and was, in fact, thwarted by circumstances entirely beyond his control.

Where these three things apply, we have no justification for giving the person who fails less of a punishment than the one who succeeds.

Alonzo Fyfe

One of the important implications that I think can be drawn from 'the problem of attempt' is that it provides evidence that criminal law (punishment) is not grounded on justice or any other such high and mighty principle. It is grounded on revenge.

If punishment were grounded on principle, there would be no difference in level of punishment for attempts and success where the difference is due entirely to luck.

If punishments were grounded on vengeance, we would expect people to feel less vengeful for an attempt and demand less punishment.

All of those who claim that punishment is grounded on high and mighty ideals, rather than being grounded on the enjoyment of inflicting harm on certain people in certain circumstances, has some explaining to do.

[Note: The above account places the situation a bit more harshly than is warranted, but this is done to bring an important and often hidden issue to the surface -- one that people gloss over far more than reason would allow unless it is expressed in stark terms. I do believe that there is some merit to the accusation.]

Pyrrho

Although I agree with you that vengeance is part of the foundation for many laws, I think that one very good reason for punishment being more severe for success is the simple fact that, as I previously stated:

You may say, as you did in your earlier post:

However, as a practical matter, their intentions are never going to be as certain as whatever happened, because the inference that the person had a particular intent is always based upon actions. Intention is never directly perceived. There might possibly be a videotape of what took place, but there cannot be a videotape of the intentions of those present.

There are many times when it is presumed that a person was attempting to kill someone, rather than merely injure them, based upon the idea that any reasonable person would know that the particular action chosen would likely result in death. However, it is often the case that people are extremely irrational (just look at some of the other threads here for some prime examples), not to mention the fact that people are often not thinking clearly when they are very emotional. So they may not, at the time of action, have had any intention to kill anyone, no matter how obvious it should have been. It is, in fact, using an inference that we know is faulty, as we know that many people are irrational, and most, if not all, are irrational some of the time. So basing punishment upon something that, in principle, cannot be known with any real certainty is extremely problematic. As I stated previously:

When I consider the fact that people in my ordinary life commonly have no idea of what my intentions are, the thought that I would be punished for my intentions independent of any real action is truly disturbing.

And consider this: Many religious people regard all atheists as having bad intentions. Truly, basing punishment upon intentions exclusively is a recipe for disaster.

That said, I do, as I mentioned earlier, agree that many people, including many legislators, do use vengeance as a motive for punishment. The death penalty is a prime example of this.