Abstract
In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan (Crime and culpability: a theory of criminal law. Cambridge University Press, New York, 2009), Chiao (Crim Law Philos 4:37–55, 2010), Walen (Crim Law Philos 3:71–78, 2009)]. We then turn to some influential theories that articulate a direct role for intentions [e.g., Duff (Answering for crime: responsibility and liability in the criminal law. Hart Publishing, Portland, 2007), Husak (Crim Law Philos 3:51–70, 2009)]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing.
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Notes
For recent contributions to this debate, see Husak (2009), Walen (2009), and Chiao (2010). In what follows we sometimes abbreviate “relevant in an important way” as “relevant.” In this we follow at least some who argue that intentions are not irrelevant in a “basic” or “non-derivative” way to moral permissibility [e.g., Scanlon (2008)]. While we do not think it is obvious what the distinction is between “derivative” and “non-derivative,” we will not focus on it unless important to the argument. For more discussion of this point, see Nelkin (2011) and Nelkin and Rickless (2014).
See Nelkin and Rickless (2014) and Nelkin and Rickless (forthcoming).
According to the Model Penal Code, reckless endangerment is treated as a misdemeanor with a maximum sentence of 1 year (§210.2); an attempted crime is categorized in the same way as if the attempt had succeeded, except in the case of an attempt of a capital crime or a first degree felony, in which case it is treated as a second degree felony, receiving a sentence of 10 years maximum as opposed to a sentence of up to life in prison (§5.05). In some states, the sentence ranges for attempted murder are significantly higher than the sentence ranges in the Model Penal Code itself. (For example, in New York, an attempt of a first degree murder is itself a Class A felony with a minimum sentence of 20 years and a maximum of life in prison (§70.00 of the New York Penal Code).
According to the Model Penal Code, criminal homicide is murder when it is “committed purposely or knowingly,” or when it is “committed recklessly under circumstances manifesting extreme indifference to the value of human life” (§210.2). The Model Penal Code does not distinguish between degrees of murder, and so treats reckless endangerment with extreme indifference in the very same way as killing with intention where death is caused in both cases, with the same sentence ranges. In some states such as New York, killing with recklessness and a further condition such as extreme indifference is treated as second degree murder, where second degree murder has a maximum sentence of life in prison and a minimum of either 15 or 20 years, the same range as in the case of first degree murder (§70.00 of the New York Penal Code).
We note here that we take the question of legal impermissibility or wrongdoing to be distinct from that of legal responsibility or culpability, which is in turn associated with sentences. (The distinction parallels the moral distinction between moral impermissibility and moral blameworthiness.) While we sometimes find these different judgments made at different stages in the process of determining legal guilt (e.g., insofar as conviction and sentencing are separated), they are not always clearly separated (e.g., the insanity defense, which might be thought to primarily concern responsibility, if successful, can affect judgments of guilt or innocence). In theory, justification and excuse correspond to the distinction between permissibility and responsibility: justifications show that the agent did not act impermissibly, while excuses show that, though the agent acted impermissibly, he or she was not responsible. However, as Dressler (2006, 221) describes the situation, “justified and excused actors are treated the same by the criminal courts: Each is acquitted of the offense and neither is punished for her conduct. As a result, many courts, legislatures, and commentators are inattentive to the inherent differences between the two classes of defenses.” Our focus here is on the claim that intentions are relevant to criminal wrongdoing, but given that criminal responsibility depends on wrongdoing, our argument has implications for responsibility.
See Nelkin (2012) for an overview of considerations, both practical and theoretical, in favor and against the existence of moral luck, and some discussion of its relationship to legal luck.
Chiao (2010, 39) explicitly points out (and we agree) that the problem for the relevance of intentions is distinct from that of outcome luck, but he does not ultimately make use of this distinction in making his case against the relevance of intentions. For example, he seems to require that the advocate of the relevance of intentions explain why intentions can “offset” the absence of harm in generating the result that attempts (implying the intention to harm) should have higher sentences than reckless endangerment (45–46). But this is to burden the advocate of the relevance of intentions with having to validate all aspects of the law, including its current incorporation of luck in outcomes.
Interestingly, as Yaffe (2010, 47–48) notes, in some other jurisdictions, the problem that arises in the Jones case from Indiana’s statutes is sidestepped in a different way. For example, in Colorado, “[a] person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense” [Col. Rev. Stat. §18-2-101 (1)]. As applied, this has the consequence that, as long as someone acts with whatever mental state would have sufficed for manslaughter had the agent’s action resulted in harm, he is thereby guilty of attempted manslaughter [see People v. Thomas (729 P.2d 972 (Colo. 1986))]. In effect, this is to appropriate the term “attempt” and give it a non-standard meaning, but one that applies not only to intention to harm, but also to willingness to behave in a way that risks harm as a side-effect. This is one way to solve the problem of differential sentences in this case. Yaffe rejects this kind of move because he argues that what attempts really are include intentions; and in order to figure out the application of the Transfer Principle (“if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized”), we need to work with the right understanding of what attempts are. We agree that attempts as a class are not as inclusive as the class defined as “attempts” in the Colorado statute. But we also believe that a more generic Transfer Principle is just as interesting as the one Yaffe proposes, and it may turn out that, in place of “attempt” in that principle, a more inclusive class of conduct makes it true.
This term is sometimes associated with what Dressler (2006, §10.02) calls the “culpability” or “broad” meaning of “mens rea.”
Compare the debate between Rachels (1975) and Foot (1984) over the moral distinction between actions and omissions. Rachels argues that, because in a single pair of cases in which the only difference is that one acts and one omits, there is no difference in permissibility or seriousness, there is no moral difference between action and omission. Foot argues persuasively, in part by appeal to other examples, that there is a moral difference between the two, but one that makes a difference in permissibility or badness under some, but not all, circumstances. As she points out, the inference from “no difference between some instances of X and Y in moral feature M” to “no moral difference of any kind between the types X and Y” is invalid. It is important to note that Moore (2009, 48) recognizes the possibility of giving the general sort of response we favor here, namely, that there can be a moral difference without its showing up as a difference of culpability in all cases, and he takes it to constitute a logical possibility. But he ultimately rejects the view, writing that he thinks that there is a difference in culpability in all pairs of cases where one of the pair includes intended harm and the other reckless conduct that results in harm (see also Moore 1997, 408–409). Further, he suggests that if one takes the view that the moral difference does not always show up as a difference in culpability, it will be a puzzle why the difference sometimes shows up as a difference in permissibility (2009, 48). We believe that this puzzle can be answered. See note 16.
Some have argued that intentions are irrelevant for crimes of certain kinds (e.g., of the greatest seriousness), but not necessarily that they should have no role. For example, Walen (2009, 76–78), in appealing to Hart’s case, argues for a reduced, but not non-existent, role for intentions. In particular, he argues that, while it does not make sense to distinguish intention from certain foresight in the case of killing, the presence of an intention can make a difference to culpability when the odds of death go down. Suppose, for example, that two people engage in behavior that has a 5 % chance of killing someone unjustly, and in each case, no one is ultimately harmed. In one case, the person acts negligently and in the other intending to kill. Walen suggests that the one who intends is more culpable. He then goes on to argue, however, that, though a criminal system could fairly implement a distinction for some crimes and not for others, there is no unfairness in not doing so, as long as we punish no one more than they deserve. We take issue with this latter claim, because we recognize at least two dimensions of fairness. There is, as Walen points out, fairness in distributing no more deprivation than is deserved. But there is also fairness in treating those who are equally deserving equally. Tadros (2005, 235) similarly argues that “[w]here we are dealing with a principal offence and the harm which the offence deals with is very great, the distinction between direct and oblique intention [= certain foresight of harm] is not sufficiently significant in moral terms to distinguish between offences.” However, he goes on to conclude that, in other contexts in which the stakes are not as high as they are in the case of murder, the distinction may very well have moral significance (236).
Dolinko (2012, 98) partially bases his disagreement with Alexander and Ferzan on the relevance of intentions on the fact that, in his view, Alexander and Ferzan have unfairly burdened their opponents with the view that intending harm while imposing even a small risk is always more culpable than risking harm without intending it when the risk is much greater. In addressing the third puzzle, we hope to bring out our agreement that this view is not a burden a defender of the relevance of intention bears.
See Reinhart (2008).
Robinson (1997, chapters 7 and 10) suggests that practical reasons take us in exactly the opposite direction, arguing that a single prescription is actually easier for people to understand. Interestingly, Chiao (2010, 49) acknowledges that for reasons of “fair labeling” we might want to distinguish attempts from endangerment if they really are “the worst of the lot” and so deserving of more punishment. But this comes in the context of a hypothetical that he seems to want to reject, namely, that attempts really do have a worse moral character than do endangerments. Further, Chiao (helpfully) distinguishes between the level of criminalization and the level of punishment. The reason to criminalize is still the same for Chiao, even if an argument could be made that attempts should be punished differently from endangerments.
Moore (2009, 47–51) defends what might be thought a variant of this principle. But as mentioned in note 11, he takes it not that it is simply harder to justify intended harm, but also that it is always more culpable than merely foreseen harm. We believe that the concept of difficulty of justification helps solve a puzzle that he sees for the type of view we defended earlier. The fundamental moral difference in question is at the level of permissibility, not culpability, and it is one factor among many in the calculus of justification. There is nothing puzzling about its making a difference sometimes to the bottom-line question of whether an action is sometimes permissible and sometimes not; and similarly, about its making a difference sometimes to the degree of culpability and sometimes not. For difficulty of justification does not map directly onto degree of blameworthiness. We note that Duff (1996, 368), and possibly Husak (2009, 64), among others, share Moore’s view that the difference in intention always makes some difference, however small, to culpability. More recently, Duff (2007, 152) seems to have distanced himself from this commitment, arguing only that the difference between intended harm and foreseen harm is morally significant. In what follows, we explain why we think that while all of these authors are right to see moral significance in intentions, they make a natural mistake in the way they take them to be significant.
See Nelkin and Rickless (forthcoming).
See Nelkin and Rickless (2014). We also note here some recent attempts to defend alternative principles that, like ours, appeal to the “means” rationale, but that, unlike ours, do not take this rationale to have any implications for a role for intentions in moral principles. (See, for example, Walen (2013) and Alexander (2014)). We believe that, while these principles are intriguing, they do not capture relevant cases as well as the DDE-NA, and that, while they are correct in being “patient-focused,” they err in not properly identifying the content of patients’ rights. A full explication of our reasoning awaits another occasion.
It may not be obvious from the DDE-R principle itself that its rationale is patient-centered, but, as we explain below, the rationale we favor appeals to patients’ rights, and in that sense is patient-centered.
It has also been argued (e.g., by Duff (2001, 81)) that at least one of the functions of the criminal law is to communicate community norms of conduct. But communication of these norms is surely itself only conceived of as a means to some other purpose, whether this be the actual conformity of conduct to norms, harm-prevention, respect for rights, or some combination thereof. So any communicative theory of the function of the criminal law is parasitic on a theory that identifies something more basic as the purpose of criminalization.
It might be argued, in reply, that the kind of harm that the criminal law is designed to prevent is not harm to individuals, but harm to society. It might also be argued that only a harm-to-society-prevention theory can explain why the killing of those who consent to be killed (or the hazing of those who consent to be hazed) is generally criminalized (see LaFave (2010, 381)). But such a theory is fraught with problems, not the least of which is that it is unclear how there could be harm to a collective that does not reduce to harms experienced by its individual members. And if the worry is not that individual acts of theft harm society as a whole, but rather the idea that society would be harmed by the universalization of any maxim of theft, then it is misplaced. For it is arguable that society would be much better off (by any measure of collective well-being), at least in situations with a vast underclass and a small, lazy, unproductive upper class luxuriating in inherited wealth, if the wealth of the rich were coercively funneled to the poor. As for why the killing of those who consent to be killed (or the hazing of those who consent to be hazed) is typically criminalized, alternative explanations abound. For example, given that death is the most serious and irreversible harm, it makes sense to worry that evidence of free, informed consent to being killed will never be sufficient to overcome the general presumption that free, informed consent is lacking in such cases; and given the strong social pressure exerted on those who consent to be hazed, it makes sense for the law to treat all apparent consent to (serious) hazing as tacitly coerced, and hence unfree. For additional arguments against the harm-prevention theory, see Moore (1997, 29).
The latter case is a variant of an example provided by Dolinko (1991, 557).
See Nelkin and Rickless (2014).
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Acknowledgments
We are very grateful to Alec Walen and Doug Husak for organizing the Workshop on Deontology and the Criminal Law and for the opportunity to think and write about these issues. We owe many thanks to Larry Alexander, Alex Guerrero, Heidi Hurd, Doug Husak, Matthew Liao, Jeff McMahan, Jonathan Quong, Victor Tadros and Ralph Wedgwood for their questions and suggestions, to all of the conference participants for thought-provoking discussion, and to Alec Walen for very helpful written comments on the paper. We are grateful to Chirag Barai for his exceptional research assistance. Finally, we are indebted to Michael Moore for his excellent commentary.
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Nelkin, D.K., Rickless, S.C. The Relevance of Intention to Criminal Wrongdoing. Criminal Law, Philosophy 10, 745–762 (2016). https://doi.org/10.1007/s11572-014-9343-0
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DOI: https://doi.org/10.1007/s11572-014-9343-0