Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law
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Description
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. The illustration given is nevertheless typical of the many instances in which every American criminal code relates the gravity of the offense to the actual results of conduct. In most states, attempts are punished less severely than the completed crime, and the same pattern of emphasis on harm prevails if the result is greater than that intended.
Source Publication
A Criminal Law Anthology
Source Editors/Authors
Arnold H. Loewy
Publication Date
1992
Recommended Citation
Schulhofer, Stephen J., "Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law" (1992). Faculty Chapters. 1407.
https://gretchen.law.nyu.edu/fac-chapt/1407
