Attempting to murder someone that is already dead

In My Humble Opinion
41

My hypothetical is that two guilty people acted exactly equally, that the justice system has perfect knowledge of this (stipulated that this is usually unrealistic), and that the difference in outcomes (actual harm vs no harm) is purely attributable to chance. Unless you’re fighting this hypothetical, then I see nothing simple here. However you “address actual damage” (monetary restitution, jail sentence for deterrence, whatever), you have made no argument as to why it is not more just for both guilty people to face equal consequences.

Take your example of negligently failing to clean your icy sidewalk. You could fine everyone who acts equally negligently the same amount, with the money going to a consolidated fund that pays out to anyone who is actually harmed.

You face the same problem under any approach to justice.

Here you have simply stated an extreme example of the status quo. I am disputing that it is just. Are you suggesting that drawing an analogy to the lottery paints the current system in a favorable light? I don’t see how. Does the actual winner of a lottery deserve their winnings more than another losing player?

This fights my hypothetical. The difference in outcomes here is attributable to different actions by the guilty party, not to chance.

42

We have to consider the purpose of laws and criminal penalties. Does a law about cleaning your icy sidewalk exist to:

Deter people from acting irresponsibly?
Punish people who do act irresponsibly?
Provide a restitutive path for the victims of irresponsibility?

We can presumably agree that all three of those are true. The problem with a system like the icy sidewalk hypothetical is this: if I can easily afford the fine, I have absolutely no reason to clean the sidewalk. If the law says I have no specific burden of responsibility should a person injure themselves due to my personal negligence, the deterrent factor goes way down for me. The burden to clean the sidewalks rests solely on people who can’t afford to break the law.

Of course we might simply shrug and say that’s kind of the way the American legal system is set up now, and we wouldn’t be far from the truth.

43

It’s a very interesting thought experiment - but I’d argue that it supports what I’m arguing, rather than refuting it.

The punchline that a hypothetical “roll the dice” justice system with perfectly evaluated odds is equivalent to current reality just underlines how the current system is not just. The question of whether we calculate the odds correctly does matter, but it is only a minor aspect of our sense of justice, because the whole idea of punishing two equally guilty people differently based on a dice roll is obviously not in accord with most people’s sense of justice.

What we should do in an ideal world is evaluate the relative contributions of a guilty party’s actions and random chance to an outcome, and then remove chance effects from our evaluation when when punishing people. But a system that punishes solely based on outcomes abrogates any attempt to evaluate the contribution of random chance by simply ignoring it and assuming that the bad outcome is a fully deterministic consequence of the guilty party’s actions.

44

Why is the problem that rich people are less deterred by the same financial penalty different under either approach to justice?

Under the system I advocate, everyone who (with equal negligence) fails to clear their icy sidewalk is fined a smaller amount, rather than one person who is just unlucky paying a huge amount in actual damages. I can see that a small random chance of a huge financial penalty might be a greater deterrent to a wealthy person, because the poorer person simply could not pay it. But wealthy people evade this by buying liability insurance.

The correct approach to creating an equal deterrent for wealthy people is to fine people in proportion to their means. This is the actual approach to speeding fines in Finland.

45

Actually, I suppose that’s where the icy sidewalk analogy breaks down entirely. You can absolutely avoid consequences for not clearing your sidewalk if you have liability insurance. You can’t get insurance that will shield you from the consequences of vehicular manslaughter.

So let’s go back to drunk driving. Currently, “driving while drunk” and “killing somebody while driving drunk” are two separate crimes. So we already a situation where every person who is caught DWI will face a similar penalty.

Right now, if I get behind the wheel while drunk, I have two things to consider.

  1. If I am pulled over, I’m in a world of hurt because the penalties for DWI are severe - particularly if I’m a repeat offender.
  2. Even if I’m not pulled over, I might kill somebody. Best case scenario is jail time, fines, probation, etc.

So even if I’m a complete sociopath and don’t care about anybody else, driving drunk still carries an extra layer of deterrence because it involves multiple layers of risk. I see that as a good thing, and I also see it as the state fulfilling its obligation to protect its citizens.

I guess I’m having real trouble envisioning a society where a drunk driver kills a bus full of nuns and carries the same burden of guilt as one who hops the curb at the Burger King drivethrough and gets his car stuck.

Why do I have trouble envisioning that? Maybe because our existing laws mirror natural outcomes. If I get throat cancer after 30 years of smoking cigarettes, that’s both unlucky and a reasonable outcome. If I go to jail after driving drunk and plowing into a bus, that’s likewise unlucky and reasonable.

Policies like this seem very reasonable.

46

I’m fairly sure that liability insurance doesn’t usually cover deterrent fines, only liability for actual damages. And if not, you could simply make it illegal for liability insurance to cover deterrent fines.

However, under the current system, I believe it would be a regressive step to make liability insurance completely illegal, precisely because it covers damages that are attributable to some combination of both negligence AND random chance. And my argument is that a person (wealthy or not) should not face a huge financial penalty for whatever “proportion” of the bad outcome is attributable to chance.

47

But can you explain why you think it just to punish the killer more, if you grant my hypothetical that we know their thoughts and actions were precisely identical, and the difference in outcomes is purely a matter of chance? I suspect that your intuition here is inevitably fighting my hypothetical, because it is somewhat unrealistic - in practice it is obviously difficult to know if prior thoughts and actions were precisely identical, so intuitively we assume that the outcome is highly informative about differences in prior thoughts and actions.

Try this. Two equally drunk drivers both sidewsipe an identical school bus at the same time of day under identical circumstances. In each case, the bus runs into a ditch and overturns. It turns out by chance that one bus is empty, and the only consequence is that the driver has a minor injury. In the other bus, 10 children are killed. Why is it just to punish one of the drunk drivers more severely than the other?

48

Because the second drunk driver ended ten lives. The law already recognizes a difference between homicide and manslaughter, and the drunk driver will be charged with the latter. Like I said above, it was unlucky that he hit a bus full of kids, but the outcome is neither unreasonable, unrealistic, or even unexpected. When the driver got behind the wheel drunk, they did so with the understanding that they were potentially ending a life. You’re focusing on the randomness of the collision itself, but the catalyst for the deaths - the DWI itself - was not random at all.

Here’s a different hypothetical. Two internet trolls agree that they will harass two random forum users. They embark on two identical campaigns of harassment. By chance, one of them is suffering from clinical depression and commits suicide. Various documentation makes it clear that the suicide is the direct result of the harassment, which included the troll urging the victim to kill themselves.

Have they committed the same crime? The victims were chosen at random, so it was pure chance that one of them was at greater risk of self harm.

Here’s another hypothetical. I’m a character in a movie. Me and my plucky sidekick get kidnapped by bad guys. We are each interrogated by two identical Bad Guys with two identical revolvers. They do that trope where they play Russian Roulette to terrify us into answering their questions. Their motivations and intent are absolutely identical. My sidekick dies and I do not.

Has each bad guy committed the same crime? The death of my sidekick was, quite literally, completely random. It easily could have been me instead. It easily could have been both of us, or neither of us.

49

It seems like you’re reinforcing my point here - precisely the same thing is true of both drivers.

Yes, I believe they have committed the same crime, and should be punished equally.

Again - yes, I believe they have committed the same crime, and should be punished equally.

I don’t see how these examples are any different. You seem to be working from an intuitive assumption that worse consequences justify worse punishment, and just giving examples where our actual justice system works in accord with your intuition. I’m not disputing that most people’s intuition works that way, that’s why our justice system works the way it does. But I don’t see any logical ethical justification for that intuition.

50

To add - I think the reason that our intuition is wrong relates to our tendency to always want to find a reason for tragedies. We try to find some logical explanation (which usually means someone to blame) even when a tragedy is completely attributable to chance. We find it very difficult to accept that someone is accidentally dead and there is no cause, no lesson to be learned, nobody to blame.

If we intuitively try to assign blame when a tragedy is completely random, I am highly skeptical that our intuition correctly evaluates justice when an outcome is more nuanced - when it is partly attributable to bad acts and partly attributable to random chance.

51

The problem here is one you are waving away without even considering it. There is so such thing as two alternative universes with everything else being perfectly equal, except change. Outside of Star Trek episodes, it just doesn’t happen. Not that the driver who killed the children was more drunk that day or the other was less, but because this is real life and not a computer simulation, then life is just too complicated to calculate everything.

How do you know if the two drivers are equality impaired? BAC is only one factor. How tired they are, their emotional state, how careful they are, etc., etc. These factors are unknown to anyone but some sort of omniscient, omnipresent god who could instantaneously weigh a zillion factors.

Without a very busy god, it wouldn’t work so we need an alternative, which unfortunately involves luck.

52

I’ve already conceded a couple of times that my hypothetical is usually unrealistic.

But do you agree that if we did have this perfect knowledge, it would be just to punish the two drivers equally?

I don’t think it’s a pointless thought experiment. If we can agree that our current system does not provide consistent justice but is a workaround for imperfect knowledge, that at least provides a starting point to think about whether there are some situations where maybe we can do better.

53

Again, the problem is that it’s an impossible condition so it’s impossible to speculate what is just and what is unjust. You need to make a better case for how it could be achieved. What kind of punishments would be given to what type of offenders?

Your criticism is easy to make, but what would replace the current method and what would a “just” system look like?

54

I’ll agree w @TokyoBayer just above. I like @Riemann’s hypothetical intellectually & morally, but I can’t do anything useful with it.

A bit like @Chronos common comment in alternative physics threads, once you inject magic into your hypothetical, anything becomes possible, and attempts to reason through the rest of the problem with conventional physics (or in this case conventional sociology / ethics / law) fails.


Having said that, IMO a practical way to reason forward from the @Riemann hypothesis (grin) is to admit that since we can’t have that omniscience, the better thing to do is get very aggressive about detecting and enforcing DUI laws.

If we caught and fined and de-licenced 99% of drunk driving occurrences instead of the current WAG 0.001%, we’d find our justice as actually meted out is much closer to the moral ideal of justice as deserved by intent and deed, not by intent and deed and random outcomes.

It’s only because we do such a lousy job of stopping accident-free drunk driving that the justice outcome seems so contingent on one particular driver’s bad luck. Said another way, here in the real world we can’t get from moral black to moral white, but we can get from the current moral very dark gray to a moral very light gray. Given the will to do so.

Whether the other social consequences of this revised enforcement stance as to DUI (and all other forms of irresponsible human behavior) are worth the price we’d pay is a separate debate. IMO it is 100% legit to say we don’t have an optimal solution today. That’s very different from saying that hard-over the other way is the optimal solution. Not that @Riemann is asserting that, but there is an aspect of his argument leaning that way.

55

What identical crime have they committed?

56

This is the problem with @Riemann 's hypothetical. It’s magical, or involves the type of god that many Christians believe in, and there is no real world application for it.

The concept itself isn’t well developed. Are they calling for everyone to get more severe punishments or the “unlucky” ones to get less severe punishments?

I’m not yet buying that an element of chance in the outcome isn’t necessarily terribly unfair. For the case of the drunk drivers, if one drinks and gets behind the wheel, you have to accept that bad things may happen and you will be responsible for that.

57

I’m not quite sure I understand what the problem is. Certain behavior is illegal. Sometimes possible consequences of that behavior are also illegal, beyond just the original illegal behavior.

Two people both drive drunk. They both are committing a crime. Bad luck, one of the drunk drivers happens to kills somebody, that person has committed an additional crime, and gets additional punishment.

Two people shoot their guns up in the air. They both committed a crime of discharging a firearm in the city limits (or whatever). One of the bullets happens to hit somebody, now there has been an additional crime, and additional punishment for that shooter.

Two people are behaving legally. They are both driving unimpaired, but are being inattentive and drive through a cross walk (not on phones or something illegal, just daydreaming or whatever). In one case, it was perfectly legal because there was no pedestrian in the cross walk. In the other case, bad luck, the driver failed to yield and hit somebody. Now one of the drivers has committed a crime, and the other has not. It would be ridiculous to claim both drivers should be equally punished because they were both at equal chance to fail to yield, because both were legal right up until the failure to yield incidence.

58

Ref this:

Not to speak for @Riemann, but you left just a bit out of your re-statement of the scenario vs. his argument. And a key bit it is.

Try this reformulation instead:

@Riemann’s point is not the second disparity, but the first.

Which IMO ultimately comes down to

    There's an element of luck in all aspects of what's behaviors are legislated against, what crimes are prioritized by law enforcement, what events are actually observed or investigated by a LEO, which cases are prosecuted by a prosecutor, which defendants are found guilty by a judge or jury, and what punishment is set in law or meted out in any given case.
We might wish that "luck" played no role in the law as written or as practiced. But it does. And that's morally unsatisfying. Trying to imagine ways to reduce the size of the luck factor is not such a bad thing.
59

In calling it “an additional crime” you are simply assuming your conclusion. The question I’m asking is what should be a crime. And to be clear, I am not arguing for lesser punishment overall. Both men know that a possible consequence of their recklessness is a dead child. The question of which bullet happened to kill a child is pure chance. So they are both equally culpable for the death. If the current justice system gives one man a small fine and the other man 2 years in prison, it would be more just to give them both 1 year in prison.

Consider the same two men, but the two bullets collide in midair before one bullet strikes a child. Does it still accord with your sense of justice that one man should be punished much more severely, and that just punishment is critically dependent on figuring out which bullet came from which gun? What if we cannot figure it out? Is nobody punished for the death?

Consider these three men, who all fire equally recklessly into the air:
(1) The first man’s bullet does no harm.
(2) The second man’s bullet falls and hits a child, killing the child.
(3) The third man’s bullet hits a bird by chance, which falls to the ground dead. The man does not know that he has done this. Two weeks later, a curious child sees the dead bird, picks it up, gets a serious infection from the bird, and the child eventually dies.

Do you think the second and third men should be punished equally severely? If not, why not? If you believe that the severity of the outcome determines just punishment, why does the length of the chain of causation that leads to a child’s death matter?

60

I wasn’t thinking of things at that high of a level. My stance is, I guess, sort of like this, though I haven’t thought through all of the stuff, and I’m not a legal ethicist:

  • A crime that causes more harm deserves more punishment
  • Some behaviors that might cause harm should be punished
  • Therefore, something that might cause harm, but doesn’t, is less bad than actually causing harm

That’s why we have stuff like “attempted murder” being less of a crime than “murder”. Or theft of less than $5000 is a less severe crime than theft of more than $5000 (or wherever the law draws the line).

I think outside of peculiar cases, which are fun to think about, that in general, somebody who causes more harm should have a greater punishment. Somebody who is reckless and causes injury is worse than somebody who is just reckless, even if the only real difference was bad luck.

Luck, chance, etc. are part of life. It isn’t fair, but denying it doesn’t help anybody. Is it just that somebody gets a greater punishment because of bad luck? Is it just that some people are rich because of good luck?

How fine grained the law is about distinguishing levels of harm is also debatable, but I’m also fine with having the distinctions being chosen, and then stuck with. Should somebody who stole $5025 spend 4 more days in prison that somebody who stole $5020?

I’m fine with ethical and puzzle debates, but to me, making criminal justice more just is going to start with fixing the disparity between classes of defendants, rather than classes of crime. To me, it is a much greater injustice that some people are given harsher punishment because of their ancestral background than because of the crime they committed.

Sure, multiple problems can be worked on at the same time, but those two things are very closely linked. Under our current system, increasing the punishment for a crime is going to hit harder on African Americans than on whites committing that same crime. This holds true even when punishments are fixed in the law. Some defendants will get charged with lesser crimes, and receive lesser punishment, even if the action was the same.