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.
