More on attempted murder and attempted theft

In an old post, I observe the curious phenomenon that a typical attempted murder is not an attempt to murder and a typical attempted theft is not not attempt to steal. For one only attempts to do something that one intends to do. But that the killing or the taking in fact constitutes a murder or a theft is, in typical cases, irrelevant to the criminal’s ends. For instance, in typical cases of theft, if it were to turn out that the object is in fact abandoned property, the thief’s ends would be just as well served by taking the object. Hence, the thief’s end is to take the object, and whether the object is owned by someone, and hence whether the taking constitutes theft, is irrelevant to the thief’s ends, and hence is not intended.

I then attempted to come up with an account of “attempted M” for a broad spectrum of misdeeds M. The idea was that “M” is a thick and morally loaded description, such as “murder” or “theft”, while there is thin and morally unloaded description “N”, such as “killing” or “taking”. Then I suggested that:

1. An action is an attempted M if and only if the agent is trying for N in circumstances in which success at N would constitute M.

But I wasn’t happy with (1) in light of a weird counterexample of trying to shoot someone with a smart raygun that, unbeknownst to the shooter, only shoots people whom it is just to kill, and doing so in a case where the killing would in fact be unjust. This seems a clear case of attempted murder (only attempted, because the raygun recognized that the killing would be unjust and refused to fire). I said that the problem with (1) is that in these circumstances success at killing would not constitute murder, since the raygun would only succeed if the killing weren’t a case of murder.

My analysis of the counterexample needs a bit of work to spell out. The actual circumstances include two kinds of facts:

1. the facts in virtue of which killing the victim would be murder (the victim’s innocence, etc.), and

2. the fact that the raygun cannot be used to commit murder.

When we ask whether success at killing would constitute murder, we are asking a counterfactual question, and we now need to be clear on whether we keep fixed (a) and drop (b) or keep (b) fixed and drop (a). To have a counterexample to (1), we need to ensure that the right way to evaluate the counterfactual about success at killing involves fixing (b) and dropping (a). I think we can ensure this. We can presumably set things up so that the raygun refuses to commit murder at all nearby worlds, but at some nearby world the victim is an aggressor whom it is permissible to kill. But this should have been stated.

So, it does seem we have a counterexample to (1). One might attempt to fully subjectivize (1) as follows instead:

2. An action is an attempted M if and only if the agent is trying for N and believes that success at N would constitute M.

But this is mistaken. An SS officer might have convinced himself that the killing of innocents that he is attempting is not in fact a murder, but that doesn’t make it not be a murder (whether the convincing reduces culpability is a separate question).

I think what we actually want to do is keep the moral standards objective while subjectivizing everything else. Roughly, we want something like this:

3. An action is an attempted M if and only if the agent is trying for N and were the moral standards fixed as they actually are and were the rest of the circumstances as the agent believes them to be, then the success at N would constitute M.

I doubt this captures all the cases, but it makes some progress over (1) I think. I suspect that our concept of an attempted murder or an attempted theft is rather messy and gerrymandered.

Note that (3) does not fit with the legal doctrine of “impossible attempts” on which an attempt that “couldn’t succeed” doesn’t count. Thus, attempting to kill with magic spells does not legally count as attempted murder, even though (3) says it is attempted murder. In this case, I am inclined to just say that the legal doctrine is false to the phrase “attempted murder”, but there is good reason not to prosecute such impossible attempts (say, because doing so leads to prosecution of “thought crimes”). If we want to build in a doctrine of impossible attempts, we can add to (3) the claim that there is an epistemically nearby world where the circumstances other than moral standards are as the agent believes them to be, where the epistemic nearness is measured by the standards of a reasonable person rather than perhaps the agent.

Conscience and the deontic logic of attempts

When people talk of the value of obedience to conscience, it often makes it sound like there is some sort of a relationship to a mysterious faculty with a mysterious authority.

And that may all be true. But there is also a rather simple and deflationary but still, I think, useful way to think of obedience to conscience.

When I obey my conscience I am just trying to do what I ought thing. There is nothing particularly mysterious about what is right about that. If I ought to do A, I ought to try to do A. I ought to honor my parents. So, I also ought to try to honor them. Similarly, I ought to do what I ought, so I ought to try to do what I ought.

And with respect to the duty to try to do what I ought, it doesn’t matter that due to a mistake on my part I will be unable to do what I ought. That I have wrongly written down my mother’s phone number does not excuse me from trying to call her on her birthday. I ought to dial that number, because not dialing that number would be constitute a failure to try to call her, given my belief that it’s her number. Similarly, even if I am mistaken in thinking that I ought to do B, I still ought to do B, because a failure to do B would be constitutive of a failure to try to do what I ought, given my belief that B is what I ought to do.

(This is all a little less trivial when we realize that the duty to do one’s duty is actually a bit controversial. One might think that one only has first order duties, and lacks the second order duty to see to it that one fulfills the first order duties. But that would, I think, be mistaken. If I know that partaking of alcohol would cause me to neglect my first order duties, I thereby have a second order duty to avoid such partaking.)

Attempts at wrongdoing

It is a common intuition, especially among Christians, that attempts at immoral actions—say, attempted murder or attempted adultery—are just as bad as the completion of the actions.

But in practice the situation is rather more complicated. Suppose Samantha is about to murder Fred. She is sitting on the rooftop with her rifle, has measured the windspeed, has made the corrections to her sights, is putting Fred in her cross-hairs and is getting ready to squeeze the trigger at an opportune moment. Then suddenly a police officer comes up and grabs Samantha’s rifle before she can do anything.

Samantha has performed actions whose end was Fred’s death. She is an attempted murderer. But I think there is an immoral act that she has been saved from. For imagine three versions of how the story could end:

1. The police officer comes up and grabs her rifle at time t₁ before she squeezes the trigger.

2. At time t₁, Samantha decides not to squeeze the trigger and not commit the murder.

3. At time t₁, Samantha decides to squeeze the trigger.

In all three cases, by the time of t₁, Samantha is already an attempted murderer. But in version 2, Samantha has done at least one less bad thing than in version 3. As of t₁, Samantha still has a decision to make: to go through with the action or not. In case 3, she decides that wrongly. In case 2, she decides that rightly.

In case 1, the police officer prevents her from making that decision. It seems clear that Samantha’s moral state in case 1 is less bad in than in case 3. For in case 3, Samantha makes a morally wrong decision that has no parallel in case 1. So the police officer has not only saved Fred’s life, but he has decreased the number of wrongs done by Samantha.

Of course, timing and details matter here. Suppose that the police officer grabs Samantha’s rifle at a moment when the bullet is already traveling through the barrel, making the shot go wide. Then Samantha is an attempted murderer, but the amount of wickedness on her conscience is the same as in case 3.

So there is a moral distinction to be made between Samantha in cases 1 and 3, but the distinction isn’t the distinction between attempt and success. Rather, the issue is that a typical wrong action involves multiple acts of will, many of which may well come with the possibility of stopping. Each time one does not will to stop, while being capable of willing to stop, one does another wrong. If one is prevented from completion of the act after the last of these acts of will, then one is not better off in terms of one’s moral guilt state. (Though one is better off in terms of how much restitution one owes and similar considerations.) But if one is stopped earlier, then one is better off.

This means that counting counts of sin is tricky. Suppose Fred had decided on committing adultery with Samantha’s sister Patricia. He texted Patricia offering to meet with her in a hotel room. He is already an attempted adulterer. But then he makes a number of decisions each of which could be a stopping point. He decides to get in his car. To drive to the hotel. To enter the room. Etc. At each of these points, Fred could have stopped, I assume. But at each point he chose adultery instead. So by the time he is in the room, he has committed adultery in his will many times.

But when we count wrongs, we don’t count like that. We count the number of murders, the number of adulteries or the number of thefts—not the number of times that one could have stopped along the way. We act as if the person who murdered five is worse than the person who murdered one, even if the person who murdered the one had to drive ten times as far.

Maybe the reason we count as we do is just a pragmatic matter. We don’t know just how many times one’s will is capable of stopping one, and how much a person just acts on auto-pilot, having set a course of action.

Or maybe the responsibility for the choose-not-to-stop decisions is much lower than for the initial decision?

I don’t know.

Two senses of "intend"?

Consider these sentences:

1. Intending to kill the wolverine, Alice pulled the trigger

and:

2. Intending to get to the mall, Bob started his car.

If Alice pulls the trigger intending to kill the wolverine and the wolverine survives, then necessarily Alice’s action is a failure.

But suppose that Bob intends to get to the mall, starts his car, changes his mind, and drives off for a hike in the woods. None of the actions described is a failure. He just changed his mind.

If nanoseconds after the bullet leaving the muzzle Alice changed her mind, and it so happens the wolverine survived, it is still true that Alice’s action failed. Given her intention, she tried to kill the wolverine, and failed.

In the change of mind case, Bob, however, didn’t try to get to the mall. Rather, he tried to start to get to the mall, and he also started trying to get to the mall. His trying to start was successful—he did start to get to the mall. But it makes no sense to attribute either success or failure to a mere start of trying.

There seems to be a moral difference, too. Suppose that killing the wolverine and getting to the mall are both wrong (maybe the wolverine is no danger to Alice, and Bob has promised his girlfriend not to go to this mall). Then Alice gets the opprobrium of being an attempted wolverine killer by virtue of (1), while Bob isn’t yet an attempted mall visitor by virtue of (2)—only when he strives to propel his body through the door does he become an attempted mall visitor. Even if killing the wolverine and getting to the mall are equally wrong, Bob has done something less bad—for the action he took in virtue of (2) was open to the possibility of changing his mind, as bringing it to completion would require further voluntary decisions. What Bob did was still wicked, but less so than what Alice did.

Action (1) commits Alice to killing the wolverine: if the wolverine fails to die, Alice is still an attempted wolverine killer. But Bob has undertaken no commitment to visiting the mall by starting the car.

This suggests to me that perhaps “intends” may be used in different senses in (1) and (2). In (1), it may be an “intends” that commits Alice to wolverine killing; in (2), it may be an “intends” that only commits Bob to starting trying to visit the mall. In (1), we have an intending that p that constitutes an action as a trying to bring it about that p.

Attempted murder is not an attempt to murder

Alice falsely believes that killing her husband Bob would be morally right (say, because Bob committed adultery). She shoots Bob, trying to hit him in the head, but misses completely and Bob escapes. Alice has committed attempted murder. But while she attempted to kill Bob, she did not attempt to murder Bob. For it was her intention to rightfully kill Bob rather than to murder him.

Therefore, attempted murder is not an attempt to murder. Speaking very carefully, we should say that Alice committed an attempted murder but did not attempt a murder. What she attempted was a killing, a killing that would have been a murder had she succeeded.

While the point is particularly clear in the case where the attempted murderer believes the killing to be right, the point also goes through in cases where the attempted murderer knows the killing would be a murder. Suppose Chuck wants to inherit an estate from his uncle Dave. Chuck knows full well that killing Dave would be a murder, and he attempts to kill Dave to gain the estate. Unless Chuck is especially malevolent, Chuck's intention is that Dave should die rather than that Dave should wrongfully die. After all, whether Dave's death is wrongful or not does not affect Chuck's inheritance (as long as Chuck doesn't get caught, that is). Thus Chuck did not intend that Dave be murdered, but only that he be killed.

It seems likely, thus, that in typical cases of attempted murder there was no attempt at murder, but only an attempt at a killing, a killing that the malefactor did or did not know to be a murder.

The point goes through for other misdeeds. An attempt at theft is typically an attempt to take something, but not typically an attempt to thieve. An attempt to lie is typically an attempt to convince of p, but not typically an attempt to convince of a (subjective or objective) falsehood (the crooked car dealer attempts to convince you that the car runs well, and that's all--she isn't trying to convince you of a falsehood as such).

Roughly, it seems that we call an action "an attempt at M", where "M" is a morally loaded description, provided that the agent is attempting to N, where "N" is a morally unloaded description, and where the N would be an M were the agent to succeed. But that's only a rough characterization. Here's a weird case. Erin has just picked up an alien weapon and is attempting to kill Frank, an innocent person, with that weapon. Unbeknownst to Erin, the weapon is a smart raygun that only fires at people whom it is just to kill (e.g., it checks whether the killing would be a part of a just war). Then Erin has committed attempted murder, even though had her attempt to kill succeeded, she would have been engaging in a just killing rather than a murder. I don't know how to characterize attempted murder to get out of counterexamples like this. An interesting ethics project for a graduate student!

Attempted murder

Every wrong act is wrong because it wrongs someone or something. Say that an act is fundamentally self-wronging provided that it is wrong because it wrongs oneself. It's controversial whether there are fundamentally self-wronging acts, but I think there are. However, attempted murder (as long as it's not attempted suicide) is not a self-wronging act. But now imagine that Bob is the only contingent being in existence, and Bob attempts to murder someone else (of course, to do that he will presumably have to have a false belief that there is another contingent being). Bob commits attempted murder, which is not a fundamentally self-wronging act. Hence it wrongs someone or something other than himself. Only concrete beings can be wronged. So there is a concrete being other than Bob. Since Bob is the only contingent being in existence, there is a concrete necessary being.

Crime, attempt and guilt

A lot of people think that someone who has succeeded in committing a murder has thereby done something morally worse than someone who unsuccessfully attempted a murder, and is guilty of a greater offense. Specifically, they believe:

1. Ceteris paribus, one is more guilty in successfully committing an evil than in attempting to commit the same evil.

This doctrine has always seemed self-evidently false. I wonder a bit whether some proponents may not be confusing guilt with responsibility (if one successfully commits the evil, one is responsibility for the occurrence of the evil), or maybe with legal questions as to what punishment should be levied (we have good reason to levy lower penalties on unsuccessful attempts so as to create an incentive not to try again[note 1]) or perhaps issues of torts or restitution.

Here is a quick argument against (1). What one is guilty of now should not depend on what happens after one is dead. But whether a crime is successful can depend on what happens after one is dead (think of someone who sets a bomb on a timer, places it in the desired location, and then is run over by a car before the bomb explodes).

Here is a more complicated, but perhaps stronger, argument. If Jennifer wants to kill her husband George, but her shot misses and kills a bystander, her action is clearly unsuccessful. Now it seems very plausible that Jennifer is no less guilty when she kills the bystander by missing her husband than were she to successfully kill her husband. Therefore in cases where the unsuccessful crime results in the same kind of evil that the successful crime would have resulted in, one is no more guilty in the successful case.

It might be responded that Jennifer is successful, because it is her intention to kill someone, and she has killed someone. But that equivocates on "intention to kill someone". One way to intend to kill someone is for there to be a particular person, x, whom one intends to kill. The other way is to indiscriminately try to kill someone or other. The second intention is had by some crazed killers, but that is not Jennifer's intention. Her intention is of the first kind, an intention to kill her husband. Killing someone other than her husband is not success at all (to make this absolutely clear, suppose that she accidentally shoots and kills herself while trying to shoot her husband; then she has killed someone, but plainly her action is a failure).

This is not yet a counterexample to (1), because of (1)'s ceteris paribus clause. But suppose that we accept (1) and also accept the judgment that Jennifer is no less guilty when she misses her husband and kills a bystander than when she kills her husband. I think that to justifiedly accept both of these claims, we will need to say something like this: "Yes, Jennifer failed at her crime. However, her evil action resulted in an unintended evil, and when one sets out to do an evil, one is guilty for all the evils that result, regardless of whether one intended them or not." There is a German proverb, Hegel says, that a stone thrown is the devil's—the consequences of an evil action are all one's fault. To accept both (1) and that Jennifer is no less guilty when she kills a bystander seems to require a strong version of the devil's stone doctrine—not only is one guilty for all the evil consequences of an evil action, but one is no more guilty for the intended ones than for the unintended ones.

But this strong version of the devil's stone doctrine is false. Suppose Patrick litters by tossing a candy wrapper out the window, and that wrapper then is eaten by a bird who chokes on it and dies, and the dead bird is several days later eaten by a bear, who then gets tummy ache because the bird was dead too long before the bear ate it, and as a result of suffering from the tummy ache the bear trips near the top of a mountain, thereby triggering an avalanche that kills a hundred skiers. Now even if one thinks there is something to the devil's stone doctrine, one would surely not say that Patrick is just as guilty in this case as he would be were he to have put a bomb in the ski lodge, thereby intentionally killing the same skiers.

Perhaps, though, there is a weaker version of the devil's stone doctrine available. Maybe:

2. One is guilty of an amount E of evil that results from an evil action up to a maximum level set by the total evil that was foreseen (or, maybe, could reasonably have been foreseen) by the agent.

Thus, Jennifer is guilty of the death of the bystander, because the evil in that death is less than or equal to the evil involved in the expect death of her husband. But Patrick is not guilty of the skiers' deaths, because that evil went far beyond what could have been reasonably expected—at most the death of the bird could have been reasonably expected.

It seems to me now that the best way for the defender of (1) to accept that Jennifer is just as guilty when she kills a bystander as when she succeeds in killing her husband is to accept (2). However, I think (2) should be rejected, and this is a reason to reject (1).

Why should we reject (2)? One reason is that we do not have a good account of causation that will answer when an evil counts as "resulting" from an evil action and where that answer will make (2) match our intuitions. Counterexamples to (2) given particular accounts of causation are very easy to manufacture. Suppose, for instance, that we take a counterfactual story, on which B results from A provided that B would not have happened had A not happened. Then, for instance, we do not account Jennifer a murderer if she successfully shoots her husband when there was someone else standing by who would have shot him if she did not.

Of course one could respond that there is indeterminacy in causation, and that there is a matching indeterminacy in guilt. Here the argument will have to rest at this point. I think guilt is an objective property (perhaps reducible to others), and I don't believe in indeterminate or vague properties.