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It is often the case that a person convicted of attempted murder receives a lesser punishment than if they had been successful in committing the crime. As far as I am aware, there are four main reasons for punishing criminals: 1) deterrence 2) incapacitation 3) rehabilitation 4) retribution.

The fourth reason seems to be the least popular, and if one does subscribe to this as a reason for criminal punishment, then I can see why they would view attempted murder as a lesser crime than murder.

Now as for 1): Since one cannot plan an attempted murder (I mean since succeeding in this would result in no murder at all) the incarceration of attempted murderers is used as a deterrent against people who plan to murder. So I am not sure how one can use the deterrence reason for punishment as a justification for attempted murder being a lesser crime than murder.

For 2): I am not sure that attempted murderers are any less of a threat to society than murderers. I suppose you can argue that murder gets easier with each kill, and so a murderer is actually more dangerous than an attempted murderer, though I am not sure that's true. One might be able to make the argument that in some cases an attempted murderer is actually more dangerous than a murderer, since the murderer might have killed the only person he wanted to kill, whereas the attempted murderer may try to finish the job.

For 3): Perhaps this is where the strongest argument for attempted murder being a lesser crime than murder comes from. All else being equal, it does seem like it would be easier (or at least no harder) to rehabilitate attempted murderers than murderers, in the sense that if one is looking to reintegrate back into society, it seems like it would be easier to do so knowing that you haven't committed such a foul crime. If I tried to do something bad but failed, then I wouldn't feel as bad about having done what I did, and I could move on quicker.

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    I find it hard to find out what's being asked here. You present your arguments, but the question is kind of missing, or is it something like "am I right?" – iphigenie Mar 16 '13 at 11:16
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    I'm also a little unclear on what the specific question here might be about :) Is there any chance we might be able to persuade you to share a little more about the context and motivations of your problem? What (theories, works) might you be reading about or studying that might have made this an interesting or urgent concern? What have you found out so far? What sort of answer are you looking for? – Joseph Weissman Mar 18 '13 at 16:28
  • Something I think has been overlooked: these four main reasons for punishing criminals are not the same factors used to determine the methods of punishment. – KnightHawk May 30 '14 at 1:05
  • "one cannot plan an attempted murder" - It is certainly not common, but yes, one can plan an attempted murder. X hires Y to kill Z, but otherwise provides that the murder cannot happen. So Y really intends to murder Z, under the orders of X, but X has planned... an attempted murder. – Luís Henrique Jul 29 '16 at 10:26
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How does one tell if attempted murder is actually an attempt at murder or at something else unless it succeeds? Once you give up perfect knowledge of intent (and perhaps even admit that true intent is either ill-defined or not always known even to the agent), all four points shift more heavily against the murderer and a lot of the philosophical difficulties melt away.

(Better for people to know even stopping themselves at the last minute will be better off for them, so it provides a last-second deterrent; the person may be too inept or squeamish to need incapacitation by incarceration; the person may already be trying to rehabilitate; the actual harm was less so in eye-for-an-eye style the retribution should be less.)

Given ideal conditions (perfect knowledge, etc.) it is a thorny issue indeed, but sometimes being a pragmatist (as judges typically must be) saves you from thorns.

  • Even a last-second subconscious feeling may cause an attempt to fail. We can't judge intent even from perfect knowledge of the attempted murderer's conscious mind. – David Thornley May 29 '13 at 1:32
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    Is it not equally likely for a murder to be the result of the perpetrator doing more harm than intended - an assault gone wrong? Intent strikes me as a separate axis from achievement, as demonstrated by the legal distinction between "involuntary manslaughter" and "murder." – Annabelle Aug 1 '14 at 4:04
  • @Annabelle - That's a good point, but I don't think that intent trumps achievement; rather, at least legally, we reserve the most severe punishments for cases where there seem no redeeming features. – Rex Kerr Aug 1 '14 at 6:46
  • "How does one tell..." One brings the case in front of the judge, and the judge just tells one. – gnasher729 Jul 30 '16 at 19:28
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Should attempted murder be a lesser crime than murder ?

This is a conundrum in ethics theory. This is a particular issue of a more general moral problem. For Kant and others, moral judgement ought not unfairly to depend on factors not under the agent’s control. Reflection on our actual judgements, however, reveals their widespread determination by various kind of luck.

Luck affects morality in four ways. The first is ‘constitutive luck’, luck in the kind of person one is, which depends, at least partially, on factors beyond one’s control such as heredity and environment. The second is ‘circumstantial luck’, luck in the kind of problems and situations one faces. For example, some young Germans who were morally lucky to have left Germany in the early 1930s. Had they stayed, they would have been faced with a terrible moral test which many of them would probably have failed. Thus, according to Nagel, whether or not a person became a Nazi murderer was, to a significant extent, a matter of circumstantial luck. The other two ways luck is believed to influence morality have to do with the causes and effects of actions. If determinism is true, then our very choices are beyond our control, and thus a matter of good or bad luck. The other and last kind of luck, sometimes referred to as ‘resultant luck’, is luck in the outcome of one’s actions and projects. This includes cases of decisions made with uncertainty, as when a political leader decides to go to war knowing full well at the time of the decision that if the venture fails, the decision can never be justified retroactively; and cases as the driver who neglects to check his brakes and is guilty, if no harm ensues, of mere negligence. But if through bad luck the driver kills a child in his path, he is judged and judges himself more harshly, even though his input is the same. The independence of these different kinds of luck from one another makes life difficult for critics of moral luck. To sustain the alleged immunity of morality to luck, they have to show that each and all of them have no effect of morality.

The estimation of moral worth, and notions such as responsibility, justification, and blame, are indeed subject to luck, and hence morality is also threatened by luck. Since every aspect of our moral life results from factors which are beyond our control, there seems to be nothing left for us to be responsible for and the area of genuine agency. We constantly morally evaluate people for things which are not under their control. There aren't principles of choice which would guarantee that if we follow them, we will have no reason to reproach ourselves later, whatever happens.

All physical events are caused and determined by the sum total of all previous events. Given an initial set of conditions external and internal to the mind, only one “choice” or behavior will result. Thus, given any set of actual initial conditions in this world, any person’s “choice” could not have been otherwise. In terms of daily “choices,” most people appear to already accept deterministic principles. We assume that certain events or choices will result in causally determined consequences. Multiple effects or choices to potentially emerge from a single cause or set of causes seem to violate the relationships we observe with all other causal sequences in the universe. It does not seem very plausible that the deterministic, causal relationships that existed in the universe for billions of years would suddenly suspend themselves to accommodate the relatively recent development of the brain’s nerve clusters. How can non determined choices potentially emerge from a single cause or set of causes provide people with any control over their behaviors?

The orthodox view is that those who act immorally are to blame for their actions because they were free to choose otherwise. Since they are to blame, we are then entitled to punish them in proportion to their crime. But is a kid brought up in the ghetto really free to choose? Isn't he just a victim of his environment? Naturalists see no need to accept the way problems were structured by the folk wisdom of our ancestors, a natural explanation of the notion of blame and desert doesn't hinge on how we explain free will.

Presumably the principle on which our social contract works is that legal or social punishments are determined according to some prior notion of moral responsibility. Presumably, people hang on to this idea because they believe that taking a more realistic attitude to the attribution of blame and desert will lead to the collapse of our moral institutions.

Determinism don't say that the level of punishment we administer to defaulters is never determined by the extent they were in control of the events leading up their crimes. On the contrary, such cases are clearly the norm, because an efficient social contract won't call for penalties to be inflicted when the circumstances under which the crime was committed are such that inflicting the penalty won't deter similar deeds. But there are plenty of exceptions, as with the continuing execution of mentally ill criminals in Texas. The paranoid schizophrenic executed someday subscribed to the same folk wisdom as his executioners: “I knew it was a mistake. I have no one to blame but myself.”

If it can be demonstrated that Abel's death at the hand of Cain was accidental by pointing to the immediate cause of the crime, we don't need to follow the practice of our predecessors by holding Cain to blame. But when the causal chain is uncertain, our social contract needs to be ruthless. All of us, for example, are held to be guilty until proved innocent when it comes to paying tax.

The extent of the damage suffered by a victim is often largely outside the criminal's control. For example, a mugger may hit two victims equally hard, but he will only be tried for murder if one of them happens to have an unusually thin skull. Nearer to home, how many of us have escaped imprisonment and ruin as a consequence of negligent driving only because we happen not to have hurt anybody? Therefore the doctrine that the seriousness of a crime is determined by the consequences to the victim also fits the same pattern: when the causal chain is uncertain, our social contract needs to be ruthless.

Our prisons are already full of youngsters from deprived backgrounds whom everyone agrees “never had a chance”. A social contract that doesn't discourage antisocial behavior won't survive, and so deviants have to be punished for the same reason that we quarantine those suffering from dangerous diseases. Quarantine is to be found in the social mechanism traditionally used to control the outbreak of a dangerously infectious disease like scarlet fever. We recognize that being quarantined is unpleasant, but we don't ask whether people got infected by accident or through negligence before temporarily imprisoning them. We isolate them, because the alternative is that the disease will spread, and we don't want healthy people to catch it.

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You've provided the answer in your question: in practice the law does (still) include retribution as a consideration, even though many philosophical theories of how the law should work would remove that feature from consideration. This is one aspect of how legal is not identical with moral (or illegal with immoral). Reconciling the retributive and consequentialist bases of law is part of its ongoing evolution.

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Punishment for murder is meted out for the action, the deed, of killing someone, not for the intent to do so, demonstrated by the attempt to murder:

Intent to kill is reprehensible, but no physical harm has been inflicted on the intended victim. So morally, the iniquity is less than when the deed has been committed and the intended harm is inflicted on the victim. Therefore attempted murder is a less severe crime.

As a less severe crime, it is moral and just that the punishment for attempted murder be less than murder itself.

  • I must strongly contradict. Being the target of an attempted murder will most likely have a very strong negative effect on you. Even being the target of a death threat is deeply traumatic. – gnasher729 Nov 24 '14 at 22:33
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    @gnasher729 - sure, and the answer by far exaggerates the idea that a murder attempt is harmless (it could result in anything between nothing and a permanent disability). But I would say that death is still more harmful than any other consequences that may follow from an attempted murder. – Luís Henrique Jul 29 '16 at 10:31
  • @gnasher729 - the answer addresses the question, which is built on a false premise and somewhat dangerous premise, as explained: Murder is an action with a clear physical manifestation and outcome. Intent to murder and its ramifications are highly subjective - must not be judged in the same manner as the act of murder. ( I edited to "physical harm" to assuage your reservations). – Vector Aug 5 '16 at 17:17
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An attempted murder may have failed for a number of reasons. One possibility is that the potential murderer had a strong conscience that prevented the attempted murder from being realized. Compare this situation to that of a psychopath who has little to no restraint from the desire to murder. The latter obviously needs more deterrent, incapacitation, and rehabilitation than the former.

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We're tying ourselves up in knots over such things as "(im)perfect knowledge of intent" and the possibility that "last second restraint" led to the failure to actually kill. In a system where the single crime of "murderous action" (regardless of outcome) replaces both "murder" and "attempted murder" (a position I wholeheartedly endorse), those would be matters to be determined by the trier of fact (jury or judge). Let the accused who was clearly heard by all his hostages screaming out "Die you filthy animal!" as he shot two rounds point-blank into the skull of one hostage try to make the case that the victim's survival was due to "last second restraint" rather than the heroic efforts of a world-class brain surgeon, and that his action was thus merely an "injurious action" or a "threatening action".

A person found guilty of "murderous action" has declared himself to be an enemy of society to equal extents in all outcome scenarios, and society's subsequent reaction should be based solely on actions and events that took place up to the point at which the accused is found to no longer have had control or influence over what followed. The idea that the eventual random results of the criminal's actions should weigh into his fate smacks of religious thinking, something like "If God had meant for him to be a murderer, He wouldn't have saved the victim" -- we might as well go back to Trial by Ordeal!

  • This read kinds of like a tirade. Can you reformat it to be about the ideas you are trying to present and less about "We're tying ourselves up ...", "... I wholeheartedly endorse...", "Let the accused ..." , "We might as well go back" – virmaior May 25 '14 at 15:24
  • @virmaior While I am neither ignorant of nor insensitive to the rules of learned debate, I find that a little hyperbole helps drive points home with a little "spice", but okay: – Jacques May 25 '14 at 16:37
  • @virmaior (cont'd) "we're tying ourselves up in knots over ..." == "We need not worry overmuch about ...", "I wholeheartedly endorse ..." == "a position with which I tend to agree", "Let the accused ..." == "Opportunities will be available at trial for the accused ...", "we might as well go back to ..." == "a concept tantamount to ...", but you already knew all that. :-) Any comments on the substance? – Jacques May 25 '14 at 16:43
  • that's a complete misunderstanding of what I am pointing out. This is philosophy.se -- not positions.se. The goal is precisely not to present our personal views but rather to explain in terms of frameworks what would make something distinct or why such a distinction ought to be rejected. And that's the opposite of the style you are using here. – virmaior May 25 '14 at 21:39

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