An Anger-based Explanation of the Difference in Punishment between an Attempt and a Consummated Murder

General Deterrence

The general deterrence theory is built around the idea that criminal punishment acts as deterrence for future criminals who want to engage in a certain criminal activity. From this perspective, a differential approach between attempts and consummated crimes is not coherent given that what the criminal law aims to deter is the conduct45. Criminal law cannot have an impact on whether the result occurs or not given that this is a question that is left to luck not to conduct modification.

However, proponents of the differential punishment thesis generally rest on three deterrence arguments to justify their position. We will show how each of them fails to attain their goal.

First, Judge Richard Posner says that punishing attempted murders and murders differently rest on the marginal incentives provided to the unsuccessful criminal. As he writes: “If the punishment for attempted murder were the same as for murder, one who shot and missed (and was not caught immediately) might as well try again, for if he succeeds, he will be punished no more severely than for his unsuccessful attempt”46.

The problem with Posner’s argument is that it assumes that the criminal who shot and missed will be dissuaded to continue shooting by the difference in punishment. This doesn’t seem to be a plausible explanation of the criminal’s conduct specially if he shot in the first place. Furthermore, it overlooks the fact that before taking the first shot, the individual had many incentives to desist that he overlooked given that most jurisdictions have defenses to those who discontinue a criminal act before the attempt is complete47.

45David Schmidtz, Deterrence and Criminal Attempts, Canadian Journal of Philosophy, 615 (1987) (“Criminal sanctions are directed against types of conduct, not against particular tokens of conduct. The subject of the sanction, the wrongdoing, consists in the conduct, not the result of the conduct. As wrongful conduct, fortuitously thwarted attempts and analogous success are all of the same type…The difference in result between completed and fortuitously thwarted instances of a given mode of criminal conduct is ascertainable only in retrospect.” at 622-623); See also Hart HLA, supra note 6,at 130.

46Richard A. Posner, An Economic Theory of the Criminal Law, Colum L Rev 1193 (1985).

47For example see Model Penal Code § 5.01(3) (Am Law Inst Proposed Official Draft 1962). This defense is available if it was the result of a voluntary renunciation see Model Penal Code § 5.01(4).

The second deterrence-based justification that proponents of the differential punishment thesis have put forward is the “penal lottery argument”48. As people are risk averse, randomly punishing some people more severely and others more leniently would deter crime more efficiently than punishing attempters and murderers equally49. Although this is an interesting point, it is mainly an empirical claim. Recent empirical literature “indicate[s] that increases in the certainty of punishment are more effective deterrents than increases in the severity of punishment”50. Accordingly, the uncertainty assumption on which this argument is construed has not been fully empirically proved. Further, it doesn’t seem to be the case that the higher the punishment, the higher the level of deterrence.

Lastly, some have tried to use Bentham’s utilitarian deterrence theory to justify a consequentialist defense of the differential thesis51. Bentham’s work refers to the idea that punishment should be tailored to each particular crime52. For example he stated that the punishment for “a man's giving you ten blows” should be harsher than that for a man who gives you less blows because otherwise the criminal “will be sure to give you five more, since he may have the pleasure of giving you these five for nothing”53. Accordingly, Bentham is saying that a person that commits the action of giving you ten blows should be more severely punished than a person that commits the action of giving you five blows. We do not dispute this argument. Rather we say that the person who commits the action of throwing ten blows should be punished in the same way regardless of whether those 10 blows hit the target or not. This is because what we want to deter is the action of endeavoring those blows in the first place.

Rehabilitation and Reform

The theory of rehabilitation and reform aims to rehabilitate an individual after she committed a crime in order to prevent future crimes once she is reinserted into society. This could take various forms such as being

48Vincent Chiao, Ex Ante Fairness in Criminal Law and Procedure, New Crim L Rev 277 (2012) 279.

49Doron Teichman, The Optimism Bias of the Behavioral Analysis of Crime Control, U Ill L Rev 1697 (2011) 1700.

50Guyora Binder (2008) The Culpability of Felony Murder 83 Notre Dame L Rev 965: 982 see also Daniel S. Nagin, Deterrence in the Twenty-First Century, Crime & Just. 199, 201 (2013).

51 Russel Christopher, Does Attempted Murder Deserve Greater Punishment than Murder – Moral Luck and the Duty to Prevent Harm, Notre Dame J L Ethics & Pub Pol'y 419 (2004) 420.

52Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 168 (Burns JH & Hart HLA eds. 1996) (1781).

53Id.

reeducated in prison and other facilities54 or Braithwaite’s parent-like reintegration process 55. In order for the differential punishment approach to be compatible with this theory, the successful attempter (the murderer) should need more rehabilitation or reform than the unsuccessful attempter. But this doesn’t seem to be the case.

The rehabilitation process should focus on the individual’s background, her motivation for acting against the law, her psychological state and how to prevent her choice to engage illegal conduct in the future 56 . Accordingly, the amount of rehabilitation that the offender that succeeds in her enterprise of killing needs does not seem to be different from the amount of rehabilitation of the unsuccessful one, all other factors equal. Society wants to rehabilitate those individuals that engage in intentional actions that have a risk of producing an illegal result, in this case death.

Indeed, rehabilitation or reform finds a parallel in children upbringing. For example, imagine that twins are playing in their garden with two identical baseballs that they intentionally throw against the neighbor’s window because they have a grudge against him57. As a result of this, the window is broken by only one of the two baseballs. But, as they are identical, the neighbor does not know which of the two twins actually produced the harm. When the mother of the twins learns about this incident, she chooses to apply the same punishment to both children because they did not respect their neighbor’s property. She does not really inquire who actually caused the broken window in the natural sense. She wants her children to improve their conduct and respect the neighbor’s property in the future58.

Communicational theories

Both R.A. Duff and Dan Markel developed “political communicational theories of punishment”. These theories

54We will assume that prisons, unlike their current functioning, serve to rehabilitate prisoners and allow them to smoothly be reinserted into society. We will leave behind empirical criticisms to the rehabilitation and reform methods in assuming that these can be fixed. For criticisms to rehabilitation see Richard Lowell Nygarrd, Crime, Pain, and Punishment: A Skeptic’s View, Dick L. Rev. 355 (1998).

55John Braithwaite, Crime, Shame and Reintegration (1989).

56Stephen J Schulhofer, supra note 21 at 1601.

57A similar example is portrayed by Kimberley Ferzan & Larry Alexander, Results don’t mattersupra note 10 at 149 (2011).

58As Professor Nussbaum explains, the mother engages in a form of Transition-Anger in the sense that she doesn’t punish as retaliation but rather to generate better conduct in their children. Nussbaum supra note 6, at 46.

focus on “calling into account” the individual for a past wrong but with the purpose of signaling that the law is committed to its own values59. Under this perspective, the individual should be called into account for one of her conducts that breached the basic norms that society has set upon itself 60 . Recalling our example in the introduction, under this account, when C is taking the shot against D’s head, C is communicating that she doesn’t care about the rule prohibiting murdering. The fact that her shot does not kill D is irrelevant from a communicative perspective. Society should call C into account for her utter disregard of the rule that forbids murdering. Society should not care whether she was successful or not in accomplishing that result because C has disregarded the community’s basic commitment not to engage in intentional actions that have a high risk of producing a death.

Nevertheless, Duff does believe that there should be a difference between murders and attempts61. This may be guided by his conviction that punishment has a retributive core: “the guilty deserve to suffer (something), and…a proper aim for the criminal law is to subject them to that suffering”62. By engaging in this approach, he commits himself to the past-looking, anger-satisfying enterprise of retributivism and thus, it may seem intuitive to support the differential thesis.

However, the core-concept of Duff’s theory of calling into account for a wrongful act, and to avoid repetition, is forward-looking63. Under this account, the criminal law should call individuals into account for a conduct and not for a result and that is why the occurrence of the victim’s death should have no bearing in the difference in punishment. Similarly, under a reform-oriented interpretation of Markel’s theory,64 the criminal who has attempted a murder should be called into account to be reformed in the same way as the one who has succeeded in doing so because the latter has assumed the risk of being successful.

59See Antony R Duff, Punishment, Communication, and community 22 (2001).

60Id.

61Antony R Duff, Subjectivism objectivism and the role of theory. In Simester/Smith (eds.), Harm and Culpability (1996); Antony R. Duff, Criminal Attempts (1996).

62As reproduced in Nussbaum supra note 6, at 189.

63Id.

64Nussbaum interprets Markel’s theory “under its best light” to suggest that it has a forward looking reform perspective. See Nussbaum supra note 19, at 190.

Another philosopher, Jane Hampton, developed an expressive theory of punishment from a teaching mechanism perspective. Namely, she purports to teach the criminal and society “the moral reasons for choosing not to perform an offense”65. Consequently, as Hampton focuses on the reasons behind the decision to perform an offense, her theory is completely compatible with the equivalence thesis. Indeed, the teaching mechanism that she describes deals with the conduct of the offender, not on whether she was successful in producing the result. If the conduct exhibits a profound disregard for the human life, it is important to make a statement to affirm society’s commitment with the wrongfulness of that disregard66. As there is no true difference between the disregard for human life exhibited by the attempter versus the murderer, Hampton’s communicative theory is more compatible with an equivalent punishment approach.

V. Answering Possible Objections

A. If the punishment is the same for attempts and murders, the individual will have no incentive to prevent the occurrence of the result after the attempted crime Objectors to the equivalence thesis argue that in case the attempted murder is punished in the same way as the murder, the criminal will have no incentive to prevent the result from occurring67. For example, if an individual wanted to kill another one by aiming at her head and for an exogenous reason she ends up injuring the victim, she will have no incentive to prevent the victim’s death if punished as a murderer. There are two possible responses to this objection.

First, it is unclear that that an individual who wanted to shoot somebody at the head will be motivated to act knowing that if the result is prevented, she will get a lower sentence.

Second, even taking for granted the possibility of motivating the criminal to prevent the result, the equivalence thesis is compatible with a reduced sentence for those individuals who have prevented the result from occurring. Nevertheless, this reduced punishment would be independent from moral worthiness and it would be

65 Jane Hampton, The Moral Education Theory of Punishment, Philosophy & Public Affairs 203 (1984)

66Nussbaum supra note 6, at 191.

67Russell Christopher supra note 48. This is a part of Michael Moore’s justification for the difference in punishment see Michael S. Moore, Placing Blame: A theory of the Criminal Law 225-227 (2010).

associated with other reasons of criminal policy, for instance the importance of preventing a death. But this does not support the differential thesis’ position where an attempted murder should always have less punishment than a consummated one. This leads to absurd consequences of favoring even those criminals who have not helped their victims or that could have even thought that they were dead when they left the crime scene. B. The attempted murderer feels less guilt and remorse than the actual murderer George Fletcher advances a theory based on the emotions of the perpetrator to explain the differential punishment from the criminal’s perspective68. Indeed he says that the murderer feels guilt and remorse while the attempted murderer fells shame, not guilt69. This explains the punishment differential.

However, consistently with Professor Feinberg’s reply,70 we believe that both the attempted murderer and the murderer may feel guilt if they are not psychopaths. It may be true that the successful criminal may feel more guilt than the unsuccessful one. This is much more so since guilt is an emotion that is linked to a causal connection between an action and the damage produced from that action71. From this perspective, when the person kills there is actually a dead person. Thus, the murderer will feel more guilt than the one who attempted to murder who has not caused a death in the natural sense.

However, believing that we must punish someone more harshly due to the fact that she feels more guilt is not a forward-looking conception of criminal law. To the contrary, it seems to be portrayed as a religiously justified punishment based in the expiation of past sins.

Furthermore, some psychological studies have pointed to the fact that the guilt associated with causing harm to others is not related to self-ascription of culpability but rather it is a way of expressing empathy towards our victims72. For example, even if we were driving at a

68 Fletcher supra note 12, at 482.

69Id.

70Feinberg, Equal Punishmentsupra note 14 at 125-127.

71See John Deign, The Sources of Moral Agency 42-43 (1996); Gabriele Taylor, Pride, Shame, and Guilt: Emotions of Self-Assessment 93 (1985).

72Guyora Binder, Victims and the Significance of Causing Harm, Pace L Rev 713 (2008) 732.

reasonable speed, we may still feel guilty if we kill a child who unexpectedly jumps in front of us73.

Consequently, the guilt that the offender feels is not a good justification for the punishment differential because it is not a sufficient nor necessary condition for culpability and it is not a forward-looking strategy.

Now, Braithwaite does think of the guilt of the offender in a transitional way74. He proposes to use the guilt constructively to reintegrate the criminal into the community75. This is a forward-looking approach to punishment. The key difference to the way in which Fletcher conceives guilt is that Braithwaite does not purports to punish based on the offender’s guilt but rather he wants to use it as a tool for reform. C. The differential punishment is based on the harm that occurred in the murder, which is inexistent in the attempt.

Some scholars have claimed that the attempted murder cannot have the same punishment as the murder since there was no actual harm in the first crime76. Nonetheless, this argument is misguided.

Joel Feinberg identifies a clear response to this objection,77 which is very similar to the justification we gave on why the deterrence theory of punishment is consistent with the equivalence thesis. As he points out, the criminal law tries to combat the harms that may derive from an action or a conduct. Those are the only human behaviors that can be effectively deterred. The law cannot deter the result given that it has no influence on whether it will occur or not. This is a sphere that is reserved to luck.

Professor Kadish has even considered that the “Harm Principle” may sometimes lead us to irrational

73A similar argument is advanced by Herbert Morris, Nonmoral Guilt, in Ferdinand Schoeman (Ed.), Responsibility, Character, and the Emotions 200 (1987).

74He calls this process “guilt-induction”. See John Braithwaite, Crime, Shame and Reintegration 57-58 (1989).

75Id.

76LaFave and Scott, Criminal Law 9 (1972).

77Joel Feinberg, Problems at the Root of Law – Essays in Legal and Political Theory 82 (2003). He writes: “This statement formulates the liberal theory of the proper limits of the criminal law, and is close to a principle that I have defended, which has been called the ‘harm to others principle’ or ‘the harm principle’, for short (…) But it does not follow that unsuccessful attempts to perform an act of a type that is very harmful (murder, for example) should not be criminalized! That is a well-intentioned but illogical conclusion drawn from a principle (the harm principle) that gives it no support” consequences given that it would prevent us from punishing certain actions that we consider criminal78. Thus, the criminal justice system should be worried about all of the possible harms that may erupt from the violation of a legal rule, not whether there was an ex-post result that resulted from a “lucky” criminal conduct.

Others scholars such as Michael Moore have tried to suggest that the missing causal connection between the action and the death result are sufficient for the attempt to have a lower sentence. As he writes: “‘Causation matters’ seems to be a pretty good candidate for a first principle of morality”79. Nonetheless, a person that acts with extreme due diligence and still causes an undesired result such as a death should be found morally responsible? For example, imagine that a nurse provides a patient his regular medicine, which is found in a labeled recipient for that medicine but, unbeknownst to her, the patient’s daughter has introduced cyanide of the same color and shape to the patient’s regular medicine. As a result of the cyanide ingestion, the patient dies and the nurse has causally produced that death. In this case, we would never charge the nurse with murder because she didn’t have the required means rea. Consequently, causation is not a sufficient condition for a higher punishment scheme. It is for this very same reason that we do not have a strict liability regime in criminal law. We care about what was going on through the person’s mind insofar as we want to be able to prevent her decision to take the risk to succeed when shooting at another person. Then again “The law seeks to influence the reasons for which a person acts, but it cannot influence the results of these actions”80. D. Most of the world’s countries have a differential punishment rule Another possible counter-argument against the equal punishment thesis relies on the fact that almost every country in the world has attenuated punishment for attempts vis-à-vis consummated crimes. Indeed the great majority of legal systems around the world contain a differential punishment approach81. Additionally people intuitively believe that a murder is worse than an attempted murder82.

78Sanford Kadish, The Criminal Law and the Luck of the Draw, J Crim L & Criminology 679(1994): 695.

79Michael S Moore, Causation and Responsibility 81(2008).

80Alexander & Ferzan, Results don’t mattersupra note 13, at 152.

81George Fletcher, A Crime of Self Defense: Bernhard Goetz and the Law on Trial 82(1988).

82Paul H Robinson & John M Darley, Justice, Liability, and Blame: Community Views and the Criminal Law 23(1995).

However, this may be associated to the fact that most cultures are heavily influenced by retributive thoughts and by an Aristotelian conception of anger. Indeed, the notion of retribution or “dessert” is ubiquitous in the world’s religions 83 and thus is pervasive in most countries’ criminal law. Most societies favor retribution and payback in punishing that result from some sort of magical thought of “cosmic balance” which may derive from evolution84.

In fact, the Aristotelian payback-anger is also widespread in Western Philosophy. For example, Thomas of Aquinas has portrayed a very similar definition of anger to that of Aristotle: “An angry reaction arises only when one has endured some pain, and desires and hopes for revenge”85. Descartes too was very much influenced by the Aristotelian conception of anger: “Anger is also a kind of hatred or aversion that we have towards those who have tried to harm not just anyone they happen to meet but us in particular…it is based on an action that affects us and for which we have a desire to avenge ourselves”86. Spinoza, along the same lines wrote: “The striving to do evil to him we hate is called Anger”87.

As we can observe, this desire for payback and revenge is omnipresent in Western thought and has thus permeated the criminal justice system too. This has also translated itself to the realm of attempts vs. consummated crimes, as Adam Smith acknowledges: “Our resentment against the person who only attempted to a mischief, is seldom so strong as to bear us out in inflicting the same punishment upon him, which we should have thought due if he had actually done it”88. Although, he also suggests that there isn’t a rational justification for the differentiation89.

83Nussbaum supra note 19 at 40-43; See also L. Zaibert, Punishment and Retribution 28-40 (2006).

84Nussbaum supra note 6at 24 & 176.

85Thomas of Aquinas, Summa Theologica, 1a2ae, q.46, art.1 as cited in P.M.S. Hacker, The Passions A Study of Human Nature 258 (2018).

86Descartes, Passions of the Soul, III.199 as cited in P.M.S. Hacker, The Passions A Study of Human Nature 259 (2018).

87Baruch Spinoza, Ethics, II.172 as cited in P.M.S. Hacker, The Passions A Study of Human Nature 259 (2018).

88Adam Smith, The Theory of Moral Sentiments 188 (reprinted 1976 in Liberty Classics) (1759).

89As he writes: “His real demerit, however, is undoubtedly the same in both cases, since his intentions were equally criminal; and there is in this respect, therefore, an irregularity in the sentiments of all men, and a consequent relaxation of discipline in the laws of, I believe, all nations.” Adam Smith, supra note 88at 188.

In these lines, one might accept that this may be a compelling argument not to pursue reform in this arena. In conceding this point, Professor Kadish suggests that although this rule may seem irrational: “There are limits, therefore, particularly in a democratic community, to how far the law can or should be bent by reformers to express a moral outlook different from that of the deeply help intuitive perception of the great mass of humanity, irrational though they may seem to some”90.

The payback project seems so universal because human beings cannot accept their vulnerability91. It feels better to feel like we are in control and that we can gain closure by punishing the offender more harshly 92 . Nonetheless, the criminal justice system should strive for more coherent and rational punishments by not relying on retributive payback. It does not matter if societies or cultures are attached to payback and retributive conceptions of the criminal system. Indeed, “even if people feel overwhelming delight when they have retaliated against the aggressor, that pleasure gives us no reason to endorse or make law around such sadistic and malicious preferences…People can learn to feel pleased by many bad things (racial discrimination, domestic violence, child abuse) and by many silly fantasies (the thought that their cat channels the spirit of a beloved ancestors). These pleasures should be neither here nor there when we perform a normative evaluation”93.

Books

1. Adam Smith (1754) The Theory of Moral Sentiments

(reprinted 1976 in Liberty Classics).

2. Antony R Duff (1996) Criminal Attempts.

3. Antony R Duff (2001) Punishment, Communication,

and community.

4. Aristotle, Rhetoric.

5. Baruch Spinoza (1677) Ethics.

6. Bernard Williams (1981) Moral Luck: Philosophical

Papers 1973-1980.

7. Descartes (1649) Passions of the Soul.

8. Gabriele Taylor (1985) Pride, Shame, and Guilt:

Emotions of Self-Assessment.

9. Gaetano Filangieri (1836) La Ciencia de la Legislación

221-226.

10. George Fletcher (1988) A Crime of Self Defense:

Bernhard Goetz and the Law on Trial.

11. George Fletcher (1978) Rethinking Criminal Law.

12. Herbert Morris (1976) On Guilt and Innocence.

13. Heart HLA (1988) Punishment and Responsibility:

Essays in the Philosophy of Law.

14. Hyman Gross (1979) A Theory of Criminal Justice.

15. Jeremy Bentham (1781) An Introduction to the Principles of Morals and Legislation 168 (Burns JH & Hart HLA (Eds.), 1996).

16. Joel Feinberg (2003) Problems at the Root of Law –

Essays in Legal and Political Theory.

17. Joel Fienberg (1970) Doing and Deserving 33.

18. John Deign (1996) The Sources of Moral Agency 42-

21. Larry Alexander, Kimberly Ferzan (2009) Crime and Culpability, A Theory of Criminal Law.

22. Nussbaum MC (2014) Anger and Forgiveness:

Resentment, Generosity, Justice.

23. Michael S Moore (2008) Causation and Responsibility.

24. Michael S Moore (2010) Placing Blame: A theory of the Criminal Law.

25. Paul H Robinson, John M Darley (1995) Justice,

Liability, and Blame: Community Views and the Criminal Law 23.

26. Plato, The Laws.

27. Hacker PMS (2018) The Passions A Study of Human

Nature.

28. Thomas Nagel (1979) Mortal Questions.

29. Thomas of Aquinas, Summa Theologica.

Papers

30. Bjorn Burkhardt (1986) Is There a Rational

Justification for Punishing an Accomplished Crime More Severely Than an Attempted Crime? BYUL Rev 553.

31. Daniel S Nagin (2013) Deterrence in the Twenty-First

Century. Crime and Justice 42(1): 199-263.

32. David Lewis (1989) The Punishment That Leaves

Something to Chance. Phil & Pub Aff 18(1): 53-67.

33. David Schmidtz (1987) Deterrence and Criminal

Attempts. Canadian Journal of Philosophy 17(3): 615- 623.

34. Doron Teichman (2011) The Optimism Bias of the Behavioral Analysis of Crime Control. U Ill L Rev 1697-1712.

35. Guyora Binder (2008) The Culpability of Felony

Murder. Notre Dame L Rev 83(3): 965-1060.

36. Guyora Binder (2008) Victims and the Significance of Causing Harm. Pace L Rev 28(4): 713-737.

37. Tedeschi JT, Quigley BM (1996) Limitations of laboratory paradigms for studying aggression. Aggression and Violent Behavior 1(2): 163-177.

38. Goldberg GH, Lerner JS, Tetlock PE (1999) Rage and reason: the psychology of the intuitive prosecutor. Eur J of Soc Psych 29(5-6): 781-795.

39. Jane Hampton (1984) The Moral Education Theory of Punishment. Philosophy & Public Affairs 13(3): 203- 238.

40. Ken Levy (2014) Why Retributivism Needs Consequentialism: The Rightful Place of Revenge in the Criminal Justice System. Rutgers L Rev 629.

41. Leo Katz (2000) Why the Successful Assassin Is More

Wicked than the Unsuccessful One. Cal L Rev 88(3): 791-812.

42. Lynne N. Henderson (1995) The Wrongs of Victim’s

Rights. Stan L Rev 37: 937-1021.

43. Michael S Moore (1994) The Independent Moral

Significance of Wrongdoing. J of Contemp Legal Studies 237.

44. Michal Davis (1986) Why Attempts Deserve Less

Punishment than Complete Crimes. Law & Phil.

45. Richard A Posner (1985) An Economic Theory of the Criminal Law. Colum L Rev 85(6): 1193-1231.

46. Richard Lowell Nygarrd (1998) Crime, Pain, and Punishment: A Skeptic’s View. Dick L Rev 355.

47. Russel Christopher (2004) Does Attempted Murder

Deserve Greater Punishment than Murder – Moral Luck and the Duty to Prevent Harm. Notre Dame J L Ethics & Pub Pol'y 18(2): 419-435.

48. Sanford Kadish (1994) The Criminal Law and the Luck of the Draw. J Crim L & Criminology 85(4): 679- 702.

49. Stephen J Schulhofer (1974) Harm and Punishment: A

Critique of Emphasis on the Results of Conduct in the Criminal Law. U Pa L Rev 122: 1497-1607.

50. Steven Sverdlik (1988) Crime and Moral Luck.

American Phil Quart 80.

51. Vincent Chiao (2012) Ex Ante Fairness in Criminal

Law and Procedure. New Crim L Rev 15(2): 277-332.

Chapters in Books

52. Andrew Ashworth (2000) Belief, Intent, and Criminal

Liability. In: Eekelaar, Bell (Eds.), Oxford Essays in Jurisprudence.

53. Antony R Duff (1996) Subjectivism objectivism and the role of theory. In: Simester, Smith (Esd.), Harm and Culpability.

54. George P Fletcher (1993) The Nature of Justification.

In: Steven Schute, et al. (Eds.), Action and Value in Criminal Law.

55. Herbert Morris (1987) Nonmoral Guilt. In: Ferdinand

Schoeman (Ed.), Responsibility, Character, and the Emotions.

56. Larry Alexander, Kimberly Ferzan (2010) Results

don’t matter. In: Robinson, Garvey, Kessler (Eds.), Criminal Law Conversations.

57. Michael S Moore (1995) The Moral Worth of Retribution in Punishment and Rehabilitation. In: Jeffrie Murphy (Ed.), Punishment and Rehabilitation.

Supreme Court Cases

• Furman v. Georgia, 408 U.S. 238, 308 (1972).

Legislation

• Model Penal Code (AM. LAW INST., Proposed Official Draft 1962).