Justifying Lesser Sentences for Inchoate Crimes

Introduction

In casebook commentary on inchoate crimes, there was near universal agreement that such crimes should be punished as severely as completed crimes. This intent-based retributivism is a view strongly held by the casebook's editors, Kadish and Schulhofer, and thus presented as a rebuttal to the harm-based retributivism which most American jurisdictions are based on- the harm you create equals the harm you deserve, so inchoate crimes are punished less severely. This essay will first explore reasons (other than the intuitive 'eye for an eye' principal) why the American criminal justice system might have lesser sentences for inchoate crimes, then explain why punishing inchoate crimes less is preferable, and finally discuss where to go from here.

Why We Punish Less

Role-Casting

As one way to justify locking people up, the State casts criminals as ‘bad,’ which unifies the rest of us as ‘good’. At the sentencing stage, the state can then juxtapose ‘bad’ people against each other: if this bad guy deserves five years in jail just for trying to do something, and this bad guy actually did it, then he must deserve at least ten years, etc.

A given punishment for an inchoate crime makes it easy to rationalize a more severe punishment for the completed crime, circularly justifying all punishment by creating a hierarchy of crimes and criminals. If punishments were bunched too closely at the most severe end, they would be less comparable and ordered, meaning less intuitive, which might cause people to ask more questions. So why is this hierarchical role creation is so appealing?

Hierarchical Expectations

Nearly every society around the world is ruled by hierarchies. It is unclear how much of our hierarchical structures are due to instinct or learned historically or culturally, but either way most peoples have a tendency to prefer order to chaos. The ordering of things is so pervasive that it probably feels natural and self-evident. This tendency to look for order at least partially explains why the role-casting works- it creates a ‘natural’ order of crimes and criminals, with inchoate crimes logically falling below completed crimes.

We thus create mental distances between different crimes, so the ‘distance’ between the punishments of any two crimes becomes arguably as important as the harshness of any individual punishment. Given that death is (maybe) the worst punishment we currently allow, the punishment for attempted murder, for example, must be lower to satisfy distance and hierarchy expectations. Equalizing punishment for murder and attempted murder would seem arbitrary and unfair (to say nothing of what incentives it might create), despite potential philosophical arguments why they are indistinct. These reasons at least partially explain why the American criminal justice system probably punishes inchoate crimes less severely despite disbelief from the likes of Kadish, Schulhofer and the MPC, but there are also reasons why it should.

Why We Should Punish Less

Real Risk Creation

The main casebook/MPC justification in the philosophy of punishment is that we should punish the actor’s culpable mental state/intent- known as intent-based retributivism. As such, its proponents claim reduced punishment for inchoate crimes should not be based on the ‘luck’ of completing the crime or not. Even if we concede that bad intentions are something worth punishing, is that really the only basis for punishment we should use?

For inchoate crimes, the logical end of the desire to punish bad thoughts would be 1984 -style Thought Police, meaning we would all eventually be behind bars. And while the MPC and many jurisdictions require a substantial step before punishing an attempt, for instance, the step is only an evidentiary tool to confirm intent, and the MPC largely does not distinguish between inchoate and completed crimes for sentencing purposes. Alternatively, the focus should at least partially be on the risk the actor actually creates- how dangerous they can actually be in the world, not just in their head. Are ineffective or unmotivated criminals equally as dangerous, and thus deserving of equal punishment? While some may disagree, and in practice it might make no difference, it makes sense to concern ourselves in criminal theory more with what a criminal can do as opposed to what he can think.

Reevaluating the System

Another reason for lesser punishments for inchoate crimes is that punishment is already generally too harsh and ineffective for all crimes, so punishing lesser crimes more severely makes no sense. The criminal justice system often gives disproportionate punishment to a disproportionate set of people, and does little to prevent recidivism. Given limited resources, it is not advantageous for society to put more people away for longer periods of time until we have some evidence that it is actually doing something positive.

There is obvious debate on the deterrent effect of jail time. But if one accepts the premise that locking people up for extended periods of time doesn't always work, or even that until we know if it does work we should err on the side of inflicting less pain, then increasing punishment for inchoate crimes can only make things worse. The inherent danger of such an increase would be that given our hierarchical mental expectations, it would only lead to further increasing punishments for completed crimes to keep a comfortable distance from inchoate ones, a ratcheting-up tendency already natural to the political process of being ‘tough on crime.’

What Next

As mentioned, much of the casebook argument is to avoid differentiating punishment based on ‘luck.’ This assumes bad luck creates failed attempts, but maybe there are other reasons criminals fail. Perhaps the alleged criminal did not really want to do the crime, and hence stopped short of completion, or acted carelessly enough to get caught. Anyone can think of times when they didn’t really want to do something but did it anyways, giving only a half-hearted attempt which they knew would fail, and sometimes even wanted to fail.

Instead of assuming that those who attempt are as bad, dangerous or deserving of punishment as those who complete, perhaps we should do some research to learn why crimes fail, as it might shed some light on what punishment is actually appropriate and effective at deterring those ‘crimes.’ Politics and philosophy aside, these are people's lives we're dealing with, and before we ruin them we should be constantly asking questions and seeking answers to ensure the appropriate journey toward improving the criminal justice system for everyone and making society better.