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9 Law & Phil. 1 (1990)

handle is hein.journals/lwphil9 and id is 1 raw text is: R. A. DUFF

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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