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9 Law & Phil. 1 (1990)

handle is hein.journals/lwphil9 and id is 1 raw text is: R. A. DUFF AUCTIONS, LOTTERIES, AND THE PUNISHMENT OF ATTEMPTS* I. DESERT AND LUCK Any version of retributivism holds that punishment should depend on desert punishment is justified only if it is deserved for a past offence, and the severity of the punishment should be proportionate to the seriousness of the offence. It may seem that anyone who holds this view must condemn our practice of punishing attempted crimes less severely than successful or completed crimes: for the mere fact of failure in a criminal attempt surely cannot show the agent to be any less deserving of punishment, or to deserve any less punishment, than one whose similar criminal endeavour succeeds. Jack and John each fire at an intended victim: each intends, and makes a competent and whole-hearted attempt, to kill. But while Jack succeeds in killing his victim, John fails to kill his: not because his attempt is incompetent or half-hearted, but because his victim moves suddenly, or is saved by unexpectedly prompt medical treatment. The difference between their two endeavours, such that one succeeds while the other fails, is thus purely a matter of chance or luck: but they are then surely equally culpable, and deserve equal punishment; for it cannot be just to make the extent of an offender's criminal liability depend on the chance fact of whether he actually caused the harm which he tried to cause. If punishment should depend on desert, it should depend on culpability rather than on the actual causation of harm; on what the criminal wrongfully chose or tried to do, not on the chance matter of what harm he actually did.1 * A British Academy Research Readership gave me the time to work on this paper; I am very grateful for this support. 1 See, for instance, A. J. Ashworth, 'Criminal Attempts and the Role of Resulting Harm', Rutgers Law Journal 19 (1988): 725-72, pp. 741-50; H. Gross, A Theory of Law and Philosophy 9: 1-37, 1990. © 1990 KluwerAcademic Publishers. Printed in the Netherlands.

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