There’s some technical term for the topic I’m about to discuss, but I can’t remember what it is just now.
Suppose you’ve got two drivers, Bill and Ted. They are driving identical cars which handle identically, they are driving on identical roads–say they’re driving on the same road on two different days–and things around the road appear identical.
They are in a school zone and the speed limit is 25. Both are travelling 55.
A kid darts out from behind a sign and runs in front of Bill’s car, and is killed.
No such kid darts out from behind any such sign in Ted’s case. Ted drives through the school zone, and nothing interesting happens.
Most people would think Bill should be prosecuted and punished fairly severely.
The question is, should Ted also be prosecuted and punished fairly severely? If not, why not?
The obvious answer might seem to be that Bill killed a kid while Ted did not. But this seems like an accidental, unpredictable consequence of their actions, rather than part of their actions themselves. It seems their actions were identical–each was going 55 in a 25 mph school zone, and each was equally unprepared for the possibility of an unseen kid darting out into traffic. They did the same thing.
Legally we focus on results. Not possible results.
Have you ever been driving and took your attention away from the road? That is negligent. Now, one person who does that causes an accident and gets in trouble. By your rationale we should prosecute you too since you did something that might have had a bad result.
But my question is why should we focus on that? I was thinking in moral terms, but its fine to discuss the legal question as well. There we are more likely to get into discussions about the practicality of enforcement, I think.
What rationale? I asked a question, I didn’t put forth a view. My question is why am I not just as guilty as the person who does exactly what I did, and yet who caused an accident I didn’t cause?
Luck almost always comes into it, even outside the world of criminal negligence. Two bank robbers, Charlie and Joe, each armed with a pistol, shoot a bank teller. Charlie hits her, and she dies a day later from the injuries; Joe misses, and is immediately overpowered by a security guard, so that no one dies. Should they be punished equally?
I read something in a philosophy textbook that addressed this once; the idea was (a) that you’re absolutely right, both guys should face roughly the same appropriate punishment for taking a one-in-a-hundred risk of hitting a kid regardless of the fact that one hit a kid and the other didn’t. But (b) just what is the appropriate punishment for taking that one-in-a-hundred risk?
Well, the reasoning goes, we should subject both Bill and Ted to a one-in-a-hundred risk of facing jail time. Never mind that Bill actually killed a kid; just subject both men to the same one-in-a-hundred roll of the dice. So maybe Ted will get punished and Bill won’t. Or maybe both will. Or maybe both won’t. The point is just making sure they both face the same risk they made others run. If it’s fifty-fifty, flip a coin; for twenty-five percent odds, flip two coins. Simple as that.
But, of course, that’s hard to do. I mean, I was just picking a number out of the air when I said “one in a hundred”; maybe it’s one in eighty, or one in eight hundred. We could call experts, and they’d disagree – or maybe we could program a computer simulation, spending lots of time and money to duplicate the odds from that first time around – but, really, what’s the point? We’ve already got a perfectly good risk-simulator that models those odds exactly: instead of bothering with a second flip of the coin or roll of the dice or whatever, let’s just use that first incident.
Bill and Ted both ran the same risk; they both deserve the same one-in-whatever chance of getting jail time. I don’t care which man actually happened to hit a kid; Bill didn’t mean to do it, and Ted was just as negligent. I’m only mentioning the hit kid because that’s the perfect one-in-whatever simulator.
Well, in that case you meant to break the law and do harm to another. That you failed is beside the point. You tried. That’d be like trying to pass a bad check but failing. Just trying is against the law.
In the case of the OP though no one is trying to kill anyone although their actions do increase the risk. Now, If one had driven 55 across a crowded school playground then I think you have attempted murder.
Not according to the law its not. The fact you failed will probably mean decades less in jail (and, in systems that have capital punishment, not having to face the death penalty).
Thats just how legal systems work, its based on what you DID do not what you COULD have done (some things, as in the OP, are illegal because they MIGHT do harm, but its the actual act itself that is illegal, not the hypothetical results of it). Morally both guys are as culpable in both cases (whether its a delibrate attempt to harm, or a reckless act), but legally they are not.
A slightly more interesting hypothetical I saw in a show once was a guy who beat up someone who, it transpires, is a Jehovah’s Witness, who then refused a blood transfusion and died because of it (actually I think in the show they managed to save his life at the last minute). Why should guy A who beat up a JW go to prison for life, whereas guy B who beat up someone who wasn’t a JW in the same circumstances just get a convict for assault and a far lighter sentence.
An interesting OP. How many people are in prison for, say, killing someone while driving drunk. They got “caught” doing something that many of us got away with in our youth. Would justice be as equally served with us in prison and them out free? Our intents were the same.
But the basis of western (or at least English/US) law is that “Mens Rea” (guilty mind) is only half of whats needed to be legally culpable, the other half is “Actus Reus” (Guilt act).
You didn’t kill anyone therefore there was no guilt act, both you and guy doing a 10 strech ARE equally guilty of driving drunk, but only one of you ACTUALLY killed someone and that is the act he is being punished for. The fact the you COULD have killed someone is not relevant legally speaking.
Practically speaking, the only practical way to deal with it is to punish the guy who actually killed a kid more harshly, since it’s impossible to know that the situations really were identical. I know you stipulated that they’re equally competent drivers, but how does the court know that? Ted might claim in his defense that he’s an extremely skilled at driving and unusually attentive to things around the road, and that he knew that, even driving at 55 MPH, he’d be able to see a kid running into the road and react fast enough to avoid an accident. OK, this is still bad, which is why he still gets a hefty speeding ticket for speeding in the school zone, but if his claim is true, it’s clearly not as bad. Bill, meanwhile, might try to make the same claim, but the fact that he actually did hit the kid would falsify it.