Follow by Email

"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

August 16, 2010

Moral Luck and Criminal Punishment

Scenarios One through Five-Hundred: Imagine relatively deserted country roads at night, and drunk drivers, with no prior convictions for drunk driving, failing to stop at a stop sign at a blind intersection. No other car is in the intersection at the time. However, a law enforcement officer observes the entire incident. The drunk drivers are arrested for first offense operating while intoxicated—a non-criminal forfeiture action.

Scenario Five-Hundred and One: Imagine relatively deserted country roads at night, and a drunk driver, with no prior convictions for drunk driving, failing to stop at a stop sign at a blind intersection. In this scenario, another car enters the intersection. There is a violent collision, and the occupant of the second car is killed. The drunk driver escapes injury. The drunk driver is arrested for homicide by intoxicated use of a motor vehicle- a criminal charge with a maximum penalty of 25 years prison (15 years initial confinement and 10 years of extended supervision).

The single difference between scenarios 1-500 and scenario 501 is that someone was killed in the 501st scenario. The drunk driver in the 501st scenario was unlucky that a car with in the blind intersection when the drunk driver entered the intersection.

Drivers 1-500 got drunk and drove, and then failed to stop at a stop sign. One could argue that they were criminally negligent or reckless by driving drunk. (Is the difference between the levels of culpability a function of blood alcohol content?) They received a traffic ticket.

Drunk driver 501 did the exact same thing—got drunk and drove, and then failed to stop at a stop sign—but then, through the bad luck of having someone in the intersection at the exact moment they entered it, killed another person. Drunk driver 501, like drivers 1-500 above, arguably was criminal negligent or reckless by driving drunk. Driver 501 is looking at 25 years in prison.

The above example is an example of what philosophers call “moral luck.” [i] Driver 501 will be punished much greater than drivers 1-500 for similar behavior based on bad luck. The penalty differential between the two situations has often troubled me. Should it be troubling?

If one believes that the principal purpose of criminal sentencing is deterrence, then it probably shouldn’t be troubling. One sentences to deter others from similar behavior. Through a sentence, a message is sent to others about the cost of a particular crime, which is the amount of punishment. The expected punishment for drunk driving is the expected punishment for drunk driving not causing injury and death plus the expected punishment for drunk driving that results in injuries and death. Therefore, driver 501 is punished considerably greater because he, in effect, won the negative lottery, and therefore he has to bear the burden of the greater punishment to communicate deterrence of drunk driving to others. Is this proper? One commentator has written: “Fortune may make us healthy, wealthy, or wise, but it ought not determine whether we go to prison.” [ii] Drunk driver 501 is being used by the criminal justice system to send a message to others.(Is there an ethical limit as to how far one can use another individual as a means to an end? Ethically, should humans only be used as a end in themselves?)

If one believes that the principal purpose of criminal sentencing is protection of the public through incapacitation, then the sentence disparity makes little sense. There is no little reason to believe that the 501st drunk driver is any more dangerous to the public, requiring a longer period of incapacitation, than the first 500 drunk drivers. They are all equally as dangerous (this was a blind intersection so no argument can be made that the first 500 were more careful).

The sentencing disparity also conflicts with the deontological desert theory of punishment, and is probably one of the sources of my discomfort with the sentence disparities between the no harm/harm scenarios. According to this theory of punishment, one punishes in proportion to the evilness of the defendant’s will—a concept related to the mental state or mens rea of the defendant. We look to what the defendant’s mental state or will at the time of the offense. This view of moral responsibility is attributed most closely with the philosophy of Immanuel Kant, and I believe is consistent with many religious views. (I was imbued with this view through my Catholic upbringing, although Kant was Protestant.)

In this situation, all of the drunk drivers took a chance of harming another person through driving drunk. The chance of that behavior causing death was real, but remote. However, all 501 drunk drivers possessed the same evil will of risking injury or death to others by their behavior. The 501st drunk driver willed nothing different than the first 500 drunk drivers. Therefore, why should drunk driver 501 be punished more?

There is at least one important reason—to maintain the legitimacy of the law with the general population. In an excellent article on the differing conceptions of desert theory of sentencing, Paul H. Robinson explains that there are three difference versions of desert theory.[iii]

Robinson explains deontological desert which I discussed above. But then differentiates that with “vengeful desert” which “…urges punishing an offender in a way that mirrors the harm or suffering he has caused, typically identified as lex talionis: ‘the principal of law or retaliation that a punishment inflicted should correspond in degree and in kind to the offense of the wrongdoer.’” This type of desert focuses primarily on the harm and involves the victim’s desire for revenge.[iv] One could argue that assuaging these revengeful desires effectuates one instrumental reason for criminal punishment—preventing vigilantism. But few would argue that merely reflecting vengeful rage (or forgiveness) of the direct victim, should be the foundation of a society’s criminal justice system.

Robinson identifies another desert theory, “Empirical desert” which focuses on what empirical research has shown to be the community’s conception of justice for a particular crime. Empirical desert honors what research has discovered about what the community believes to be appropriate punishment for a crime. Respecting the public’s view of appropriate punishment is required to maintain respect for the criminal justice system which results in a law-abiding society.[v]

Oliver Wendell Holmes Jr. appreciated this purpose. As one commentator on Holmes’ view stated: “In a democracy, Holmes insisted, those who make, enforce, and interpret the law cannot move too far out of harmony with the common people, else the law will seem tyrannical at worst, obscure at best.”[vi] We must punish when, and to the extent expected, by the populace to maintain the legitimacy of the justice system.

Empirical desert provides a utilitarian purpose for the differential punishment under the above described scenario. As discussed in an earlier blog entry, punishment is probably hard-wired into humans, and that the desire to punish is triggered by harm, especially when accompanied by some form of blame-worthy behavior. The philosophical nuances of punishment may not be considered by much of the general public. How empirical desert weighs against deontological desert is one a judge must wrestle with at sentencing.

[i] See Kadish, Sanford H.; 1994. “Forward: The Criminal Law and the Luck of the Draw”, 84 J. Crim. Law and Criminology 4, pp. 679-702.

[ii] Richard Parker, Blame, Punishment, and the Role of Result, 21 AM. Phi. Q. 269, 273 (1984).

[iii] Robinson, Paul H. 2008, “Competing Conceptions of Modern Desert: Vengeful, Deontological, and Empirical”, Cambridge Law Journal, 67(1), March 2008, pp 145-175.

[iv] Ibid, p. 147.

[v] Ibid, p 149.

[vi] Feinberg, Joel, 1995 “Symposium issues in the Philosophy of Law: Participant : Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments Against It.” 37 Ariz. L. Rev. 117, 125

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.


  1. Without disagreeing with the construct, the flaw in the hypothetical is the following premise:

    "However, all 501 drunk drivers possessed the same evil will of risking injury or death to others by their behavior. The 501st drunk driver willed nothing different than the first 500 drunk drivers."

    Is the woman who lost 40 pounds, then had the same two drinks she normally has, but now is .084 instead of .062 as morally culpable as the other 500?

    How about the college kid, who at .10 was the soberest guy in the group and took the keys just to try to get his more intoxicated buddies home safely?

    How do they compare to the angry drunk who fought to keep his keys when his friends tryed to take them away, and then sped off at .23?

    What if it is the drunk who has the right of way, and the sober guy in the other car runs the stop sign and dies in the resulting crash?

    With 501 first offense cases, there will be 501 individual people in the dock, and respectfully, notwithstanding legislative habit or popular culture, tarring them all with the same brush as a starting point is not consistent with the balance of the moral construct advanced here.

    Attorney Michael C. Witt
    Jefferson, WI

    "We protect God's children who have fallen short of perfection from the wrath of those who believe they have attained it." - Stuart Kinard

  2. I apparently didn't make myself clear enough in this thought experiment regarding the bad luck of the 501st defendant. All 501 defendants needed to be identical to isolate the bad event from the defendants' identical intents. (Which didn't include harming anyone.) I understand and agree that each individual defendant must be evaluated as an individual, and all of the examples you gave are quite different. Thanks for the comment.