Crime, attempt and guilt

A lot of people think that someone who has succeeded in committing a murder has thereby done something morally worse than someone who unsuccessfully attempted a murder, and is guilty of a greater offense. Specifically, they believe:

1. Ceteris paribus, one is more guilty in successfully committing an evil than in attempting to commit the same evil.

This doctrine has always seemed self-evidently false. I wonder a bit whether some proponents may not be confusing guilt with responsibility (if one successfully commits the evil, one is responsibility for the occurrence of the evil), or maybe with legal questions as to what punishment should be levied (we have good reason to levy lower penalties on unsuccessful attempts so as to create an incentive not to try again[note 1]) or perhaps issues of torts or restitution.

Here is a quick argument against (1). What one is guilty of now should not depend on what happens after one is dead. But whether a crime is successful can depend on what happens after one is dead (think of someone who sets a bomb on a timer, places it in the desired location, and then is run over by a car before the bomb explodes).

Here is a more complicated, but perhaps stronger, argument. If Jennifer wants to kill her husband George, but her shot misses and kills a bystander, her action is clearly unsuccessful. Now it seems very plausible that Jennifer is no less guilty when she kills the bystander by missing her husband than were she to successfully kill her husband. Therefore in cases where the unsuccessful crime results in the same kind of evil that the successful crime would have resulted in, one is no more guilty in the successful case.

It might be responded that Jennifer is successful, because it is her intention to kill someone, and she has killed someone. But that equivocates on "intention to kill someone". One way to intend to kill someone is for there to be a particular person, x, whom one intends to kill. The other way is to indiscriminately try to kill someone or other. The second intention is had by some crazed killers, but that is not Jennifer's intention. Her intention is of the first kind, an intention to kill her husband. Killing someone other than her husband is not success at all (to make this absolutely clear, suppose that she accidentally shoots and kills herself while trying to shoot her husband; then she has killed someone, but plainly her action is a failure).

This is not yet a counterexample to (1), because of (1)'s ceteris paribus clause. But suppose that we accept (1) and also accept the judgment that Jennifer is no less guilty when she misses her husband and kills a bystander than when she kills her husband. I think that to justifiedly accept both of these claims, we will need to say something like this: "Yes, Jennifer failed at her crime. However, her evil action resulted in an unintended evil, and when one sets out to do an evil, one is guilty for all the evils that result, regardless of whether one intended them or not." There is a German proverb, Hegel says, that a stone thrown is the devil's—the consequences of an evil action are all one's fault. To accept both (1) and that Jennifer is no less guilty when she kills a bystander seems to require a strong version of the devil's stone doctrine—not only is one guilty for all the evil consequences of an evil action, but one is no more guilty for the intended ones than for the unintended ones.

But this strong version of the devil's stone doctrine is false. Suppose Patrick litters by tossing a candy wrapper out the window, and that wrapper then is eaten by a bird who chokes on it and dies, and the dead bird is several days later eaten by a bear, who then gets tummy ache because the bird was dead too long before the bear ate it, and as a result of suffering from the tummy ache the bear trips near the top of a mountain, thereby triggering an avalanche that kills a hundred skiers. Now even if one thinks there is something to the devil's stone doctrine, one would surely not say that Patrick is just as guilty in this case as he would be were he to have put a bomb in the ski lodge, thereby intentionally killing the same skiers.

Perhaps, though, there is a weaker version of the devil's stone doctrine available. Maybe:

2. One is guilty of an amount E of evil that results from an evil action up to a maximum level set by the total evil that was foreseen (or, maybe, could reasonably have been foreseen) by the agent.

Thus, Jennifer is guilty of the death of the bystander, because the evil in that death is less than or equal to the evil involved in the expect death of her husband. But Patrick is not guilty of the skiers' deaths, because that evil went far beyond what could have been reasonably expected—at most the death of the bird could have been reasonably expected.

It seems to me now that the best way for the defender of (1) to accept that Jennifer is just as guilty when she kills a bystander as when she succeeds in killing her husband is to accept (2). However, I think (2) should be rejected, and this is a reason to reject (1).

Why should we reject (2)? One reason is that we do not have a good account of causation that will answer when an evil counts as "resulting" from an evil action and where that answer will make (2) match our intuitions. Counterexamples to (2) given particular accounts of causation are very easy to manufacture. Suppose, for instance, that we take a counterfactual story, on which B results from A provided that B would not have happened had A not happened. Then, for instance, we do not account Jennifer a murderer if she successfully shoots her husband when there was someone else standing by who would have shot him if she did not.

Of course one could respond that there is indeterminacy in causation, and that there is a matching indeterminacy in guilt. Here the argument will have to rest at this point. I think guilt is an objective property (perhaps reducible to others), and I don't believe in indeterminate or vague properties.