Abstract

Joel Feinberg and Richard Parker, among others, have argued that we should not take consequences of acts into account when assessing the legal and moral culpability of criminal attempts. Rather, we should judge and punish actions themselves. The result would be to punish failed attempts to the same degree that we would punish them if they had succeeded. If someone engages in some act, the intended end of which is some terrible harm, and through accident or pure chance the act fails to achieve its intended outcome, the offender has done something which in itself is just as blameworthy when it fails as when it succeeds. She intended the harm even if the harm didn't come about, and performed the action to cause the harm. The offender has the same mens  rea, the same guilty mind, when the act is successful as when, due to luck or factors beyond the person's control, the act is unsuccessful. Once the criminal's action is performed, the occurrence of the intended consequences is beyond her control. So why should she be guilty of any less an offense just because the intended act did not succeed?

George Fletcher refers to those who see the harm of crime as being central as "traditionalists" and those who seek to "limit the criminal law to those factors that are within the control of the actor" and thus exclude consequences, as "modernists." It seems that retributivists, who hold that punishment should depend on desert, would be forced to hold that one only deserves to be punished for what one intends, not what chance occurrences are a result of one's actions (making them "modernists" in Fletcher's terms). I want to make the labels somewhat more self-explanatory, so I will label the thesis which holds that it is the action itself, not the resulting harm, which is important, the "consequence-irrelevance" view. As Feinberg describes it, it requires us to simply eliminate the causal conditions from the definitions of those crimes that currently list them in their definitions. In opposing the consequence-irrelevance view, I will not criticize Feinberg's or Parker's arguments directly, but rather attack some negative implications of their general position. The consequence-irrelevance view has severe and undesirable effects which even the proponents of the thesis should not want to allow. To avoid these problems, and to adequately characterize criminal conduct, we must appeal to consequences.

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