Document Type

Article

Publication Title

University of Pennsylvania Law Review

Abstract

The criminal law attributes major significance to the harm actually caused by a defendant's conduct, as distinguished from the harm intended or risked. If, for example, a person attacks his wife and tries to kill her, he will be guilty of assault and attempted murder even if she escapes unharmed. He will also commit a battery if she is injured, mayhem if the injury is of certain especially serious types, and murder if she dies. The applicable penalties generally increase accordingly. Yet both the defendant's state of mind and his actions may have been identical in all four of the cases supposed. The precise location of a knife or gunshot wound, the speed of intervention by neighbors or the police, these and many other factors wholly outside the knowledge or control of the defendant may determine the ultimate result. Accordingly, the differences in legal treatment would seem at first blush inconsistent with such purposes of the criminal law as deterrence, rehabilitation, isolation of the dangerous, and even retribution -in the sense of punishment in accordance with moral blame. Such confusion and inconsistency seem due less to the intrinsic difficulty of the concepts than to the fact that courts will often reject retaliation in practice as well as in theory, and that other reasons for attributing any significance to the actual results of conduct have not been convincingly articulated. A full-scale rethinking of this aspect of the criminal law seems necessary. This Article can only attempt to set the stage. After a brief comment on previous efforts to come to grips with this problem, and a section defining terms that will recur throughout the Article, I will attempt to assess the arguments that have been or might be offered in support of relating punishment to harm caused, and to offer tentative conclusions as to the implications of the analysis for a criminal code based on acceptable policies.

First Page

1497

DOI

https://doi.org/10.2307/3311506

Volume

122

Publication Date

1974

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