Capital Punishment Essays
The article I will be analyzing is “Why Attempts Deserve Less Punishment” by Michael Davis. Davis begins with an external representation of the debate of proportionality between attempted and completed crimes in punishment. He takes on the challenge of defending the usual practice of the legal system although it contrasts the view advanced by most legal theorists. He uses the framework of several common retributivist views in saying, in a just legal system, criminal law acts to maintain the balance of burdens and benefits (Davis 11). Additionally, he uses an analogy of licenses to portray the advantages and disadvantages disobedience to laws bring.
I feel Davis’s perspective helps to explain the complicated process of determining the change a crime creates to the overall scale of benefits and burdens, which will be explained in more depth later. In this essay, I will paraphrase the points made by Davis and his main argument. Then, I will provide some possible objections to his claims, as well as how he could respond to these. By the end, it is my hope the reader will gain a better understanding of how a legislator, theorist, or any other agent could respond to why attempts deserve less punishment than a completed crime.
Part 1: I will begin with a summary of Davis’s argument and reasoning. Davis discusses how modern retributivists look to both the action one carries out and the intention they had (6). This can be called the loss-based approach, and Davis feels this does not hold up because it is concerned with the harm caused by an action (7). In contrast, he wants to show why an attempted crime such as, to use his example, robbing a bank but being arrested before obtaining the money, deserves less punishment than successfully robbing a bank, and then being arrested (Davis 7). Using a harm based approach, this is not possible, because in both cases it does not seem as though any harm was created.
Additionally, Davis presents a description of Hyman Gross’s approach to punishment in terms of the “dangerousness” different completed and attempted crimes cause (7). He uses three examples of crimes failing using the terms manifest impossibility, overt impossibility, and covert impossibility (Davis 7). Manifest impossibility means the agent attempted a crime, but failed because they used methods every reasonable person would know to be ineffective (Davis 7). Overt impossibility refers to a situation when everyone else but the actors knew the means taken could not bring about success (Davis 7). The last case of covert impossibility occurs when means that ordinarily would bring the desired means fail, unknown to anyone (Davis 7). Davis uses this principle of varying degrees of risk to form his own argument.
Moving to Davis’s stance, he states in a civilized society, or one with relatively just laws, laws are created to prevent certain actions because if not made illegal, agents are believed to potentially commit the act (Davis 10). This occurs in this sort of just society, because some entity such as the government seeks to protect the civilians from harm (Davis 10). However, this protection will not work if civilians do not actually stop doing the illegal act. Stated differently, for this system to be effective, it requires compliance on the part of the society’s agents (Davis 10). With the law in place, many who otherwise would have carried out the action now will not (Davis 11).
Yet, there are still some who will do the act, or at least attempt to do so. These agents then receive a benefit not allotted to others. The benefit they receive derives from others’ compliance with the law that they have chosen to disregard (Davis 11). Since the system is built on a general compliance with the rules of every person, deviations from this prescription create some disparities. Davis refers to this as a kind of cheating that wrong doers can use to get ahead in a sense (12). They cheat while others play by the rules, which allows them to harness some advantage. It does not matter as much to Davis how much restraint the law places on each individual agent in a society. Instead, he looks at an “overall balance of protection and restrain” (Davis 11).
This is relevant, because as has been discussed in Dr. Gelfand’s lectures, it may require no restraint for one agent to not assault an innocent elderly woman, but to another this may be far more tempting (Gelfand). From here, Davis adds an interesting element to his theory using the idea of a “license” (12). He draws a comparison between the benefit a wrongdoer gains with a license in that she has the ability to do what others following the law can not. Additionally, Davis sets up an analogous “auction” that can be used to determine the price of licenses (12). This price helps discover the amount of benefit different crimes afford the culprit through a process of comparison. The auction shows the specific price of crimes is not necessary, but instead a relative “ranking of crimes” (Davis 13).
Further, Davis says the ranking of crimes in terms of the unfair advantage they create could be compared with “a similar ranking of (humane) penalties to determine what each crime deserves in punishment” (13). In line with retributivist principles, it would be important to adhere to the idea of proportionality (Gelfand). This means that the punishment should fit the crime. The ideal of fit can become convoluted, but Davis does not address this issue. Instead, he proposes that so long as the list of crimes and list of punishments are compared an answer is readily available. This is because multiple crimes could actually have the same punishment so long as the crimes ranked high in terms of the benefit allotted the wrongdoer does not receive lesser punishments than those below (Davis 13). The same fairness principle would need to be applied to the lower ranking crimes as they should likewise receive a punishment ranked relatively in the lower extreme.
To Davis, the exact scope of the benefit one gains is in line with the generally perceived seriousness of the crime (14). Overall, the more serious a crime is, the more societies fear it, and so societies would be willing to sell fewer license for crimes they view as more serious (Davis 14). Since societies do have beliefs about which crimes they view as most dangerous, Davis feels it makes sense certain “protective agencies” may enter into the auctions (14). Much like an environmental group could aid in protecting the environment, these agencies could bid on the licenses for crimes to reduce the supply. They may do so in hopes of keeping some of the licenses away from others seeking to use them (Davis 14). The agencies acting in this way will continue to keep the prices consistent as they will weigh together the benefit of preventing the crime with the cost it takes to prevent it (Davis 14).
However, there is a benefit created not only for those agents who successfully carry out the action. For example, in the case of murder, a successful murder receives the benefit of completing the task he hoped to do. An attempted murder still receives a lesser benefit than a completed murder, but more than if the agent had obeyed the law. So then, Davis has to answer the question of what a license for attempt would look like.
He first lists the elements that make up a complete crime: the actus reus, or the act the law prohibits, the mens rea, or the intent of the agent, and then a connection between the first two elements (Davis 15). He also asserts since the completeness of a crime will be “determined by the statute creating that crime,” the license would excuse the agent for “commission of the actus reus done with a certain mens rea” (Davis 16). With an overview of make up of a complete crime, he begins to analyze how a complete crime differs from an attempted crime
Davis finds that ultimately, the mens rea will likely be present, but the portion of the crime that fails will be the actus reus (16). He gives the example of a bank robber. In this situation, if a bank robber has the mens rea or intent to rob the bank, but is arrested before he obtains the money, the “harm characteristic” of the crime is not present (Davis 16).
There is another situation he uses to show that the actus reus must be missing in order for the crime to be a mere attempt. Here, the robber plans to rob a certain bank, but mistakenly robs a different bank (Davis 16). So long as he is able to collect the money he sought from the bank, he is still guilty of a complete crime rather than an attempt (Davis 16). Davis further reasons that you can not know with an attempted crime what the actus rea actually was without knowing the intent (16). This is because, if someone is stopped before they are able to initiate a given crime it can be unclear what the attempt was (Davis 16).
Now, Davis also realizes certain attempts end up being complete crimes themselves. The primary example he gives is with assault and battery (Davis 17). When committing assault, one often intends to commit battery, but may fail to actually touch the victim as statutes order is necessary to battery (Davis 17). Keeping this in mind, assault seems to be an attempt at battery. Still, assault can cause its own harm, because it “ordinarily puts someone in fear of battery” (Davis 17). This is when the issue of the statute creating the law comes in to the discussion. If the relevant statute claims there need only be a “reasonable apprehension of receiving a beating,” as is the case of the Illinois statute Davis uses, then the assault was in fact a completed crime rather than just an attempted battery (17). Understanding this issue more clearly, it is apparent these types of crimes are separate from the conversation of attempts.
Finally, Davis is able to parse out what a license for attempt would practically look like. Since attempts have to be an attempt to succeed at the completed crime, a license for an attempt would have to specify the completed crime the agent seeks to carry out (Davis 17). The license would excuse the agent for their intent and their initial efforts to do the act, but it will not protect them to actually do the harm associated with the completed crime (Davis 18)
Part 2: Now that we have analyzed in depth the two forms of licenses Davis sees as necessary, we can move to a discussion of some of the possible objections to Davis’s argument. One objection he foresees coming from his argument begins with the idea no one enters into a crime hoping to only attempt but not succeed at the crime (Davis 20). A license for attempt would only protect the agent in the case they are unsuccessful (Davis 20). The opposition would then conclude no one would want a license for attempt (Davis 20).
Davis provides a response to this objection by reasoning, there will not be an infinite supply of licenses to match all the crimes there is intent for. Additionally, a license for an attempt could be better to a potential wrongdoer than having no license, because at least they are covered if they are unsuccessful (Davis 20). Then, it follows those who are unable to obtain a license at a price they can afford for a successful crime may likely invest in a license to protect them for attempts in order to avoid having no protection (Davis 21). Further, an adversary, Davis reasons, may counter that the agent may try to cheat the system through “poaching” (21). This would be the label for a crime by which someone poaches instead of obtaining a license through the market.
However, he answers this second objection in claiming poaching is likely a small, but inevitable portion of what will occur in this society. Still, the agents seek licenses to avoid punishment (Davis 21). It would not make sense for them to take on more risk of punishment by participating in poaching which would likely have a large punishment (Davis 21). Therefore, while some would participate in poaching, the number is not significant enough to make a true difference. Ultimately, it seems Davis has won this small debate. If the opposition had been able to prove licenses for attempts would be unwanted, they would derail Davis’s argument for lesser punishment for attempts. However, he shows the inequity in their assumption that enough licenses would exist that everyone who wanted a license to succeed could obtain it (Davis 20).
In contrast to the first counterargument, I will now present a response to Davis that was not exhibited in his article. The argument would begin as follows, Davis’s argument relies on protective agencies to maintain the balance of price with the fear the society feels. In order for this analysis to work, the society must have these agencies, the groups must care about all the crimes and not just a select few, and they must have the resources to change the auction market. This would never happen, because groups have biases and limited money. Consequently, there can be no sense of proportionality arrived at through the methods you present.
In responding, Davis could say the society does not rely on protective agencies to exist, but it seems more likely than not they will (14). Still, even if these groups or other concerned individuals do not become involved, other representatives such as legislators have the authority to adjust the number of licenses for sale. The debate just becomes whether the market system operates with individuals altering the prices of licenses or some other group such as the government, informed in the fears of the society. He might say, either way the prices can be regulated in a way that would prevent costly crimes from becoming common.
The opponent may then press on and reply, with those agencies or without, you could not ensure all crimes are given a fair consideration. The outlook of each individual making up protective agencies and government officials alike would shape which laws are most punishable. If a leader of one of these groups suffered a burglary, that crime may become more highly punished than murder. Surely, this is not how the law should operate in a just society.
In counter to this reply, Davis may say it is true officials and interest groups can play some role in these decisions, but they also do in the decision of which laws are created. Additionally, the market system allows for flexibility on the part of the potential criminals. If someone comes to the market perusing a license for burglary, they may be deterred by the high price and decide to settle for another license, or they may leave. However, if those affecting the prices are not backed by general public support, they will likely suffer criticism and lose financial support. Therefore, they will ultimately stop their efforts to distort the market and the normal ranking of crimes.
Upon consideration, it seems to me Davis is successful in this debates as well. In the essay, he provides a comparison to hunting to outline how these licenses would work. He explains with hunting, the number of licenses presented to hunters for each specific prey depends on the number of those available (Davis 13). He is able to show his position does not rely on the premise that protective agencies would be present in the market (Davis 14). Additionally, he proves his consideration takes into account the society is relatively just, and as such he is able to set the parameters necessary to show what would be included in the society (Davis 14).
Now we can move back to another possible objection Davis mentions in his essay. He articulates this in saying all attempts are failed complete crimes. The price of licenses is determined based on a proportion to the amount of harm caused by the crime (Davis 26). Since attempts are a failure to complete the crime, they do not cause harm (Davis 26). The area in which attempts are different is in terms of the intent of the agent (Davis 26). Therefore, the price for all attempts should be the same.
Davis responds to this third objection by remarking agents do not typically know when they enter into some illegal activity whether they will be successful or not (27). In fact, “most attempts do risk the harm of the corresponding complete crime” Davis (27). Therefore, even if attempts are thought of as not causing harm, agents do not know if they will be successful when they engage in the activity, and it presents a risk to society that creates fear (Davis 28). Further, because of this link between complete crimes and attempts, there should also be a similar link between the punishments for the two (Davis 28).
In order to create a counter argument to this response, the opponent could reply the risk does not matter as much as Davis claims. They could do so by asserting Davis’s premise the more real attempts there are, the more successful crimes there will be is flawed (27). They could ultimately argue, there will be a diminishing return as more people begin to obtain licenses for attempts. After all, without price barriers more people will likely enter the market than ever before, but that means more unexperienced agents attempting the crimes. The less experienced agents will have a high chance of failure, and therefore risk would not be significantly higher.
Still, I feel Davis could dismantle this counter easily. The points made are still based on speculation, as they do not know how many individuals in the society have the skills to carry out the act they wish. With more agents attempting, there is an increased risk even if the increased risk does slow at some point (Davis 28). Therefore, more overall risk is created by the collective actions of the agents regardless of what may happen on a case by case basis.
I found Davis’s argument particularly interesting in this dispute. He began by showing if the counterargument were true, there would not be a compelling “reason to limit the number of licenses to attempt” unless it is connected to preventing the complete form of the crime (Davis 26). He presents an argument to prove there is a risk the completed crime will result when an agent possesses a mere license for attempt (Davis 27). In fact, one may even take on the risk of poaching if they know they are covered in case they fail, according to Davis (27). Therefore, there is an undeniable link between an attempted crime and a complete crime, and I feel Davis presented a solid defense for this connection.
Therefore, in this essay I supplied a basic overview of the arguments presented in Michael Davis’s article, “Why Attempts Deserve Less Punishment.” I then offered three objections that could be made, and a dialogue representing how retributivists could respond to critiques on the subject of punishments for attempted crimes. Upon reflection, Davis makes it known early in his article that he will be arguing against the common thought among legal theorists and this move sparked my interest. As I continued to question the implications of each side of the possible objections, I found his answers compelling and logical. Through the analogy of a licensing system, Davis shows why attempts deserve less punishment than complete crimes, and it all goes back to the scale of burdens and benefits.
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