Consequences, actions and their effects on sentencing

November 1, 2005 6:50 PM

Why are the consequences of one's actions important in determinig the punishment for a crime?

Scenario 1: A drunk man. Driving down a residential road, he is pulled over and arrested for drink driving. He receives 3 penalty points and a fine.

Scenario 2: Same person, blood alcohol level, etc. This time someone happens to be crossing the road and he kills them. He goes to prison.

Why should be penalties in the two scenarios be different? His actions have not changed.

Are there any books that deal with these sorts of questions? I searched Google, but I don't have a clue what terms to search for

posted by Boo! to law & government (20 comments total)

John Stuart Mill - On Liberty
posted by cloeburner at 6:54 PM on November 1, 2005

more generally
posted by andrew cooke at 7:00 PM on November 1, 2005

More specifically, Mill argues that only actions that have definite negative consequences on others can legitimately be punished. Drunk driving, then, could be legal, but if it results in someone's death, you're fully responsible for manslaughter.

The issue, of course, is that if drunk driving can be shown to defintely increase the likelihood of other people being harmed, society should probably be allowed to take some preventative measures to discourage it. Thus the 3 points and fine (and community service and AA meetings).
posted by cloeburner at 7:01 PM on November 1, 2005

Should credit be given for a defective fuse on the dynamite?
posted by StickyCarpet at 7:03 PM on November 1, 2005

The penalties are different even though his actions were identical, because in one situation someone was harmed, in the other situation no one was harmed. The philosophy of the law is to protect people and their property, so if you harm someone, there are going to be greater consequences.

You could argue that because the philosophy of the law is to protect people and their property that since no one was hurt in your first scenario that there should be no penalty.

Unfortunately, our legal system is creeping toward a host of laws that restrict your freedoms, even when you don't hurt anyone else. (Drugs, Alcohol, Jay-walking) Often they justify it by saying that it is "in the public interest". My personal opinion is (although to many these days it is extreme), as long as you don't harm people or their property, you should be able to do pretty much whatever you want. Why restrict freedoms of people when they are not hurting anyone?
posted by banished at 7:05 PM on November 1, 2005

We talked about this in law school, related to the concept of negligence. People are negligent all the time, but are only held legally liable if they are unlucky enough to have their negligence manifest as an injury to another person. The conclusion was that the purpose of the law is also to repair injury, not just to sanction wrongdoing.
posted by footnote at 7:06 PM on November 1, 2005

see also banished, supra.
posted by footnote at 7:10 PM on November 1, 2005

What you're describing is moral luck. Thomas Nagel's essay with the same title is a good place to start. Joel Feinberg's Problems at the Roots of Law is also interesting, and brings the question of moral luck to bear on some historical cases in criminal law.
posted by Aaorn at 7:13 PM on November 1, 2005

His actions have not changed.

Except, the part, you know, where he hit somebody.

In short: huh?
posted by dobbs at 7:15 PM on November 1, 2005

We do not simply punish a person for what they intended to do, we also take into account the repercussions of the actions. In our, punitive, legal system both the initial intent (using the term broadly to include uncompelled, purposeful actions) and the consequences are important factors. If you exclude either one out you are less likely to arrive at a just verdict.

Consider these scenarios:
1a) A man shoots another intending to kill the victim; the victim dies.
1b) A man shoots another intending to kill the victim; the victim survives.

This is just the reverse of your scenario above, and many people will have the same intuitive response: 1b is not as bad as 1a. Though it is certainly worse than wounding a man without intent to kill.

Or:
2a) A man tackles another man causing the target to break his arm.
2b) A man tackles another man causing the target to break his arm.

Exactly the same action occurred in both scenarios. But, in 2a the man was saving his friend from a run away car; the friend with the broken arm would surely have been killed had he not been tackled. In 2b the tackler was just starting a fight.

With this last example you might think that knowing the two motives would be enough. The motive for 2a was noble the motive for 2b was not. Unfortunately, we have no way of knowing the motives of most criminals (certainly most criminals would never admit to bad motives). So, in the end considering both the reported intent and the actual consequence is also a very practical guide to figuring out how to judge an action.

posted by oddman at 7:16 PM on November 1, 2005

The law recognizes both deterrence (of future wrongdoing) and punishment as reasons for imposing penalties for criminal actions. Punishment satisfies society's wish to respond when its interests have been violated.

The severity of punishment will, by necessity, be strongly influenced by the outcome. A horrendous outcome generates the natural human desire for a far stronger response. The law follows and satisfies that human reaction.
posted by yclipse at 7:22 PM on November 1, 2005

Also, you could look at it as a numbers game, like gambling - while the discrepancy in the sentancing is large in the example you provide, if you expand the scope of the picture to include many years of the driver's life, the luck involved in each seperate incident starts to even out, creating a consistent level of penality for behaviour. Eg people who act recklessly are very likely to be heavily penalised, while those who take pains to avoid reckless action, are very likely to have a correspondingly lighter burden.
posted by -harlequin- at 7:22 PM on November 1, 2005

Law's Order by David D. Friedman has a good discussion (from an economist's perspective) of punishment and incentives in law. You can read the book online for free.

One reason that some sentences or fines are based on damages is that this gives individuals the "correct" (which is to say, efficient in the economic sense) incentive to minimize the expected damages of their actions. Friedman goes into this argument in much greater detail, with examples and variations.
posted by mbrubeck at 7:30 PM on November 1, 2005

Ahh, but the scenarios are never identical. If you take two people of the same height and weight, who have the same blood alcohol level, then it does not follow that they have the same chance of running someone over in a given situation. Alcohol certainly affects everyone, but it does not affect everyone equally, even when physical characteristics are the same. I have personally seen people drink three bottles of vodka in the course of a few hours and still be pretty coherent. According to most driver's manuals that much alcohol would kill a cow.

My point is that until someone actually causes harm to another being, it is hard to tell exactly what their chances of causing said harm are. Because, well, everyone is different. So, while you want to punish people for behaving in ways that are likely to cause harm, you also want to give them the benefit of the doubt; maybe this particular person is that one in a million who can have a reasonably high alcohol level and still be a better driver than 90 percent of the population (despite not being at his personal best).

Also, there is a principle that many people espouse, that victimless "crimes" should not be punished.
posted by epimorph at 8:15 PM on November 1, 2005

I see your point, but his actions have changed. There is a huge difference between killing someone and not killing someone. Notice that when someone goes to jail for a drunk driving killing, they are charged with drunk driving AND manslaughter. The guy who gets pulled over is only charged with drunk driving because that's all he has actually done.

Anything else is --DOH!! "PreCrime."
posted by scarabic at 8:42 PM on November 1, 2005

What a great question! There are a lot of examples we could all point to regarding intent and consequences of "failure." To me, the hardest one - in years - was the case in Florida where a man put a young girl he had molested in a dumpster to die. A police officer involved in her search saw a hand move under concrete blocks in the dumpster and her life was saved. Clearly, he left the girl to die. Should he not be punished as bad just because a cop managed to find her and save her life? I think not. Punish the intention - regardless of the outcome.

-
posted by Independent Scholarship at 9:04 PM on November 1, 2005

As a part of this inquiry, you may want to have a look at a closely-related (albeit inversely) concept of mens rea.
posted by blindcarboncopy at 9:20 PM on November 1, 2005

Good question; good scenario. Unfortunately, the two have little to do with one another.

Drunk driving laws are generally considered the *exception* to consequence-based punishment for exactly the reason you lay out. I took some fairly high-level crim courses in law school and did some prosecution when I got out, and this is the number one example legal theorists and practitioners come up with when talking about inconsistencies in sentencing principles (note: not inconsistencies in sentencing).

It is important to note that the offender, in both of your parallel scenarios, is guilty of the *same* mistake. The result is effectively based on how unlucky he or she then is. Even theories of general deterrence don't address this point squarely.

To those saying "of course the result should be different," consider:

- a man tries to kill you with a gun he thinks is loaded, but it is not. It is still attempted murder.
- a man sells what he believes to be crack cocaine but it is really chalk dust. It is still trafficking.

Yes, consequences do affect charges, and it does affect sentencing, but this is an artifact of sentimentality, not a rational justice system. epimorph, the scenarios are the same to legal theorists who must rationally construct - or repair - a criminal justice system. They *must* answer the question: "what if the only difference was the result?"
posted by dreamsign at 9:44 PM on November 1, 2005

Dobbs, come on. Think about it. It's a very good question.
posted by ORthey at 9:49 PM on November 1, 2005

dreamsign, what I meant was that while answering that question is necessary, in practice, one can never tell how similar two situations are. Hence, you want some leniency built into the law.

In principle, I agree, that if you are absolutely certain that the only reason person A did not kill person B is because, unbeknownst to him, the gun that he fired was not loaded, then he should be punished the same as someone who shot and killed a person. However, in practice, you can't always be sure, or even confident, that person A wasn't actually just aiming for person B's arm, and really wouldn't have killed even if the gun were loaded. This is why you don’t want to have a law that, for example, says that anyone who aims a gun at another person and pulls the trigger should be severely punished. Rather, you want a law that says that anyone who knowingly kills someone should be punished. After all, we really aren’t worried about drunk driving and people firing guns, in and of themselves. (For example, there is nothing wrong with driving drunk while in the middle of a desert, miles away from all other humans and human structures.) Our only concern is the potential of such behaviors to cause harm, and in practice, it is not always easy to determine exactly how much potential for harm a given action has.
posted by epimorph at 12:23 AM on November 2, 2005