Although the reader may initially feel the intuitive pull of the
“results matter to blameworthiness” claim, consider the following two hypotheticals.
Th e Satanic Cult
1. : Members of the gang have kidnapped someone.
Th ey have strapped him to a chair behind a partition, with the barrel of a rifl e running through a small hole in the partition and pointing at the kidnapped victim’s heart. Th e rifl e holds twenty rounds, and the gang loads it with nineteen blanks and one live shell. No one has any idea which shell is the live one. Twenty gang initiates who want to become full-fl edged gang members are each required as a condi- tion of membership to pull the rifl e’s trigger once. (Th e initiates are unknown to one another and are not in any way acting in concert.) Each initiate pulls the trigger, and at the conclusion of the rite, the victim is found to have been killed by the one live round. No one can tell which initiate fi red the round that killed him, nor is there a scientifi c test that can determine who did so.
Should we care which one of the twenty actually fi red the live bullet if each thought he might have and is thus as culpable as the others? In what respect is this one person more blameworthy? Each person knew there was a chance that he might kill an innocent victim and chose to take that risk to join the cult. Each has shown the same disrespect for the victim’s life. None of the actors cared whether he actually succeeded.
3 Paul H. Robinson and John M. Darley, Justice, Liability and Blame: Community Views and the Criminal Law 23 (1995). Importantly, the Robinson and Darley study compares incom- plete attempts with completed crimes.
Th e one who pulled the trigger that fi red the live round, whoever it was, is no more culpable than the other nineteen.4
Th e Broken Window:
2. Suppose that two children have been told not to toss and hit baseballs into their neighbor’s yard because the ball might hit the neighbor’s window. And suppose, while the parents are away, each child acting alone at diff erent times of day, tosses and hits a baseball into the neighbor’s yard. At the end of the day, when the parents return, an angry neighbor appears with two base- balls – one from his yard and one from his house – and one piece of broken glass. Each child, when summoned, admits hitting a base- ball into the neighbor’s yard, but neither knows if his baseball hit the window.
It seems to us that no parent would spend one second trying to determine which child caused the damage, but rather, all parents would punish both children and both children equally. Indeed, if aft er hav- ing grounded both children for two weeks, any parent discovered an eyewitness who knew which child broke the window, we doubt that any parent would believe that he overpunished the one attempter and would therefore seek to make amends, say, by granting the child extra tele- vision time. Whether these parents seek to deter future conduct or to punish current conduct, parents will want to punish their children for violating the conduct rule, “Do not hit balls into the neighbor’s yard,”
irrespective of which child caused the harm that justifi es that rule –
“because so doing might break the neighbor’s window.”
Th is second hypothetical underscores an important point. We do not claim that harm does not matter. Of course it does. If the children miss the window, the neighbor is not (as) angry, and the parents are not paying for a new pane of glass. (Alternatively, we oft en feel guilt for causing harm, even in the absence of culpability, such as when we break something through no fault of our own.) Our criminal laws embody and enforce norms the aims of which are to prevent the unjustifi ed harming of other people. Th e criminal law is aimed at reducing harm. Harm is what the criminal law ultimately cares about.
4 Th is example illustrates the absurdity of a real-life analogue: the practice of putting a blank in one of the rifl es in a fi ring squad so that everyone might later feel less guilt because his rifl e might have had the blank.
Notably, simply because preventing the harm may justify the rule does not mean that causing the harm increases the actor’s blameworthi- ness. In any case in which the actor consciously disregards an unjustifi - able risk by engaging in reckless action, he displays insuffi cient concern for causing that harm. Th e risk of harm an actor unleashes is prevent- able. Th e actor’s act, and whether it is unduly risky, may be guided by reasons. Th e results of his act cannot be. Th ese results can be guided only by those same reasons and by the same choice to act.
Criminal law, therefore, is about reducing harm because the occur- rence of harm itself is not irrelevant to us. In some sense, it is all that matters. No one doubts that the success of the actor has a signifi cant eff ect on the victim. Th e diff erence between murder and attempted murder is quite simply the diff erence between death and life. We hope to keep our lives, limbs, and valuables, and to the extent that actors aim at depriving us of these items, it certainly matters whether actors suc- ceed or fail.
Simply because results matter, however, does not mean that they matter for purposes of moral desert. We make many decisions each day, and the results of these decisions may matter to us, but the results are morally irrelevant to an actor’s praiseworthiness or blameworthi- ness. Just as results matter for even the most simple of life’s decisions, results matter for the most important actions we take. Indeed, imagine a case in which someone tries to rescue a friend from drowning. Th e praiseworthiness of the behavior is independent of success or failure, despite the fact that success or failure is critically important to the res- cuer (and the friend). Conversely, our praise for a successful painter’s beautiful work may be greater than our endorsement of an unsuccessful painter’s unsightly one, but these views are not moral judgments about the painters.
In summary, although it may be true that individuals have unprin- cipled intuitions that results matter, there is reason to doubt that these intuitions are moral intuitions that the actor deserves less punishment for his off ense.5 First, the generalization that harm intuitively matters
5 For some recent attempts to explain these intuitions without accepting the conclusion that results matter to moral desert, see Edward Royzman and Rahul Kumar, “Is Consequential Luck Morally Inconsequential? Empirical Psychology and the Reassessment of Moral Luck,” 17 Ratio 329 (2004) (attributing the intuitions to hindsight bias); Darren Domsky,
is undermined by examples in which harm intuitively does not matter to the actor’s desert. Second, the fact that results aff ect our lives cer- tainly can infl uence our intuitions, even when the results do not bear on desert.