Do We Imprison People Randomly?

Punishing Consequences or State of Mind: An Examination of the Driving Force Behind the Criteria Used for Criminal Punishment – PART 1

On a pleasant spring day, two men go out hunting. They both have a history of heart problems and have both had a heart attack within the past year. As they are walking through the forest a loud bang from another hunter startles them and triggers another heart attack in each hunter. Their fingers involuntarily clench the triggers of their rifles. One of them fires a stray bullet into the dirt. The other fires a bullet that travels two-hundred feet to where another hunter is hiding the bushes. The stray bullet strikes this third hunter in the head. Should the hunter responsible for discharging the bullet that ultimately killed a person be punished differently from the hunter that shot the bullet into the ground? Stated differently, as a society, how do the mere consequences of a defendant’s actions bear on our punishment of his crime?

State of Mind

For the purpose of this discussion the phrase “state of mind” refers to the totality of the perpetrator’s mindset.[1] “State of mind” as used in this discussion does not connote any specific level of mental state such as negligence, recklessness, knowledge or malice. Rather it is a generic term used to refer to the state of mind of the perpetrator taking all factors of the mindset into account. Additionally, “state of mind” includes the infinite shades of thought that the human mind is capable of. For example, two defendants who each shoot a person might both have acted with purpose to kill. However, if one used a .22 caliber pistol and the other used a .44 caliber pistol, to some small extent their states of mind were different. The one with the .44 caliber pistol may to some extent have been more certain that his victim would die from the gunshot wound. The defendant using the .22 caliber pistol may to some extent be more comfortable that his gunshot would not be heard by others so he could escape more easily. A precise analysis of a perpetrator’s state of mind must incorporate these nuances of human thought. That is, to simply state that both perpetrators acted with the same intent to kill is less precise than stating that each perpetrator acted with intent to kill but one perpetrator chose to use a method that made it more probable that his actions would cause the death of his intended victim.

In reality there are an infinite number of factors that could bear on a perpetrator’s state of mind. For example, a perpetrator that uses a revolver may have a slightly different state of mind than a perpetrator that uses a semi-automatic pistol. The perpetrator using the semi-automatic may have more shots in his magazine giving him comfort that if his first shots fail to hit his intended target, he has many additional attempts to kill his intended victim. The perpetrator using the revolver may not have as many shots at his disposal. However, he may have chosen the revolver because he feels that the revolver’s increased reliability assures that his murder attempt is less likely to fail due to weapon malfunction. Additional factors that would indicate other components of the perpetrator’s state of mind could be the decision to use hollow pointed bullets, the decision to commit the act during a rainstorm when emergency response might be slower, or the decision to commit the act during a day without wind so that wind is less likely to affect the trajectory of the bullet and cause it to miss the intended target. There are an immeasurable number of factors that can bear on the state of mind of the perpetrator. The effect of many factors is so minute that it becomes absurd to attempt to ascertain the effect that they have on the perpetrator’s state of mind. Although we cannot take all of them into account, we understand these factors do indeed exist. For the purpose of this discussion “state of mind” refers to the mindset of the perpetrator taking into account all of these factors no matter how absurdly minute they may be.[2]

Policy Goals of Our Criminal Justice System

Before one can discuss how we should punish people, one must first understand why we punish people. Without straying too far off topic, a short overview of the policy goals of our criminal justice system is first in order. For the purpose of this discussion the policy goals of our criminal justice system will be broken down into five types: (1) retribution, (2) reparation, (3) removal of danger, (4) rehabilitation and (5) deterrence. As will be discussed below, the latter four fall under the domain of utilitarian policy goals while retribution stands in a category by itself. A brief definition of each policy will help to elucidate the discussion.

Retribution is the process by which society avenges the victims of the crime. Some may see it as re-instilling moral balance in a society thrown off balance by an evil act. Retribution also serves to satisfy the need of victims and their families to see their perpetrator suffer. In this sense retribution quenches the human thirst for revenge.[3] Retribution is unique in the pool of policy goals discussed in this discussion. Arguably, retribution is a fabrication of human emotion and moral traditions but serves little utilitarian value.

Reparation is a bit out of place as a goal of our criminal justice system because it is a policy goal most often served by our tort system. As such, reparations currently draw little attention as a policy goal of our criminal justice system and as such will be given little attention in this discussion.

Removal of danger is the policy goal that suggests that the criminal justice system should remove individuals from society who pose a danger to society. Some criminals demonstrate a distinct propensity to repeatedly harm others. It makes sense that by putting these individuals in prison, society is protecting potential future victims.

Rehabilitation is the process by which society attempts to cure criminals of characteristics that society deems to be defective or undesirable. The goal is to rid the criminal of the undesirable trait.

Deterrence is the method by which society hopes to prevent crime by making known to potential perpetrators the undesirable consequences of their wrongdoings. A child may touch a hot stove once, but will be deterred from making future contact by the painful burn. Similarly, a speeding driver may be deterred from future speeding by receiving a speeding ticket that causes pain in his checkbook. However, unlike the child touching the hot stove, individuals do not need to be “burnt” by the criminal justice system to be deterred. Many people can be deterred by seeing a single individual punished. Thus, some of the most powerful deterrence comes from seeing punishment bestowed upon others.

Of the above policy goals, the utilitarian goals (removal of danger, rehabilitation and deterrence) are best served by punishing state of mind. One who commits a crime without intending to do so shows no propensity to be a danger to society. A person who did not intend to commit a crime needs no rehabilitation. One cannot deter people from committing crimes they do not intend to commit.

Convenience is another concern of our criminal justice system. This is not a philosophical goal of criminal justice but rather a goal to have a workable system. Some crimes are punished without any showing of state of mind in order to create a workable system. It would be extraordinarily burdensome if the government was required to show an element of intent every time a parking ticket was issued and thus the “purpose and effect of doing away with the requirement of guilty intent is to ease the prosecution’s path to conviction.”[4] However, convenience becomes a dangerous indulgence when discussing a crime serious enough to carry a prison sentence. For this reason, typically only crimes with little or no punishment are strict liability and require no showing of state of mind.[5] It is crimes that are grave enough to justify use of significant resources in determination of proper punishment that are the focus of this discussion.

Current Laws that Focus on State of Mind

Many modern murder statutes focus on the state of mind of the perpetrator rather than the consequences of the perpetrator’s actions. For example, the Model Penal Code punishes attempted murder the same as the completed crime. The theory being that one who attempts murder is just as evil and just as dangerous to society as someone who completes the crime. The various degrees of murder and manslaughter provide an example of how our criminal justice system punishes crimes with the same consequences differently based on varying degrees of intent.

We may gain greater insight into the motivation of our criminal justice system by focusing on a different set of crimes. That is, we can focus on crimes that have our criminal justice system punishing defendants with the same intent differently based on the consequences of the crime. For example, felony murder focuses on the result of death to a human during the commission of a felony. The intent to commit a felony is a requisite to felony murder. However, it is the consequence of death to a human that gives rise to the harsh punishment for felony murder.

Why do we sometimes punish based on state of mind and sometimes punish based on consequences?

In a scientific environment it is often necessary to create a theoretical universe in which certain assumptions are made. Accurate analysis requires that certain variables be held constant. For the purpose of effective scientific analysis assume that all of the facts are as stated and that all of the variables are held constant.

The following hypothetical explores a situation where two individuals possessing the same state of minds cause vastly different consequences. The hypothetical uses drivers. Driving an automobile is a particularly edifying situation to use as a hypothetical because it demonstrates how relatively benign mental states of mind can give rise to harsh punishments if there are inadvertent but serious consequences to the driving behavior.[6]

Example 1:

Driver A is speeding down a four-lane highway at 85 miles per hour where the posted speed limit is 55 miles per hour. Should an officer spot Driver A and pull him over, the speeding driver would probably merely get a ticket for speeding. If that is the case, in California this driver might pay a fine less than $100.[7] Assuming the driver has not received a point on his driving record in the 18 months preceding his 85 mile per hour jaunt down the highway, he would be eligible to have the point removed from his record by completing a traffic school course. Should he be ineligible for traffic school or should he choose not to attend, he will receive a point on his record that could potentially raise his insurance rates. Too many points will result in the suspension of his driver’s license. Alternatively, for driving 85 in a 55 zone the officer might be able to cite the driver for reckless driving. If this is the case then the driver could receive between 5 and 90 days in prison and/or a fine between $145 and $1000.[8] However, it is highly unlikely that he would serve any jail time for a first offense.

Why does this driver receive such a punishment? First, punishing this driver deters drivers from speeding in the future. The threat of the fine, a day in traffic school, higher insurance rates, potential suspension of driving privileges and/or a light jail sentence causes drivers to varying degrees to pay attention to posted speed limits. And even if a driver exceeds the posted speed limit, his decision about how fast to ultimately drive will be influenced by the deterrence effect of punishments bestowed upon those who speed. Second, these laws serve a preventative goal by ultimately removing dangerous drivers from the road. Drivers who have accumulated too many points on their records can have their license suspended. Further, drivers with multiple points may find their automobile insurance premiums becoming prohibitively expensive.[9] By making driving more expensive for dangerous drivers our laws may remove some dangerous drivers from the road. It is relevant to note that this sort of punishment is often issued with no showing of mental state in order to lessen the burden on the government in issuing speeding violations. Since the punishment for these crimes is minor, this concession is acceptable.

Example 2:

Example 2 takes place on the exact same stretch of highway as Example 1. This example involves a different driver, “Driver B”. Driver B is also traveling at 85 miles per hour. However, Driver B is not pulled over by a police officer. Meanwhile in a nearby dirt lot a group of children are enjoying a game of baseball. A particularly powerful foul ball is hit, launching the twine filled orb into the nearby highway. A child playing right field sprints into the highway to chase down the ball. The child realizes the danger of running into a highway but making a rough calculation in his head he figures that he can dodge between the cars that only sparsely populate this highway at this time of the week. Unfortunately, the child’s view of Driver B’s speeding car in the fast lane is blocked by a large semi-truck in the outside lane. The child believes that given the speed and distance of the semi-truck he can run into the highway to get the ball, pause in the fast lane to wait for the truck to pass by, and then cross the highway to safely return to the neighboring dirt lot.

A second or so later Driver B sees the tip of the child’s shoe peer out from in front of the semi-truck. In the nanoseconds that follow Driver B realizes what is happening. He knows that in a split second there is going to be a child in his lane. The child makes it safely past the semi-truck and into the fast lane. Intensely concentrating on the chase of the ball, the child does not notice Driver B’s speeding car until he hears the loud screech of Driver B’s tires on the pavement as Driver B desperately tries to stop his vehicle short of colliding with the child. But Driver B’s attempts to avoid the catastrophe are futile. His vehicle is simply traveling too fast and he cannot stop it in time. By the time the child realizes the precarious situation he is in, it is too late for the child to attempt to dodge the careening screeching car. Driver B’s car collides with the child, instantly killing him. Given the point in time that Driver B noticed the child running in the road, had he not been driving so fast he would have been able to stop his car before colliding with the child. There is little question that, but for Driver B’s excessive speed, the tragedy could have been avoided.

Driver B is arrested and charged with Vehicular Manslaughter under Section 192 of the California Penal Code.[10] If convicted, Driver B would likely be punished with anywhere from one[11] to six[12] years in prison. The California Penal code punishes Driver B with one year in prison without a finding of gross negligence, simply by a finding that Driver B was driving in an unlawful manner in a way that might result in death. The California Penal Code provides for up to six years in prison if Driver B also was acting with “gross negligence”.

Assume that Driver A and Driver B have identical states of mind. In order for them to have identical states of mind it must also be assumed that the circumstances surrounding them are identical. That is, they are on the exact same stretch of road, at the exact same time. The weather is the same and the barometric pressure is identical. They are driving next to the same truck and at the same distance from the truck. Even the grain on their leather covered steering wheels is identical. Driver B’s mind receives no inputs that are even a smidgen different from any that Driver A’s mind receives up until the point in time when Driver B catches the first glimpses of the child running out from in front of the semi-truck and into the fast lane.

If their states of mind are identical, then the difference between Driver A’s punishment and Driver B’s punishment is thus attributable solely to the consequences of Driver B’s actions, not to any difference in their mental states. Why does Driver B receive a harsher punishment than Driver A? One possibility is that he killed a child and thus under a theory of retribution must “pay” for the child’s death.[13] A more accurate interpretation of retribution is that punishing those who hurt others enforces a balance of pain. The child’s parents are no doubt suffering from the loss of the child. They might find some satisfaction in knowing that Driver B suffers as well. This is virtually indistinguishable from revenge. Some may be comfortable punishing perpetrators based on a concept so synonymous with vengeance. Others may desire to see more constructive policy goals fueling our criminal justice system.

Some may also argue that proportionality dictates that Driver B be punished more harshly than Driver A. However, proportionality is inherently a retributive concept.[14] The sense that one must be punished in proportion to the harm he causes has no roots in utilitarian punishment.[15] Rather it is an argument used to justify the human need to hurt those who harm others.

Another theory for punishing Driver B harsher than Driver A is deterrence. By harshly punishing drivers who drive 85 miles per hour and actually kill someone, all drivers are deterred from driving fast because they realize how harshly they will be punished if they kill someone. That is, all drivers presumably are aware that by driving fast they are taking a risk that someone could be killed and that they will be held accountable for the death. This risk provides the deterrence. The concept is akin to giving every driver who drives over 85 miles per hour a set of dice and forcing them to roll. Every driver who rolls an eleven gets four years in prison. In real life the odds are thinner than that, but the concept is the same. Out of many drivers with the same state of mind, a few are punished based on factors that are completely random. One must remember that this statement is based on the premises that all have the same state of mind and that logical promotion of utilitarian goals requires society to punish based on state of mind. This rolling the dice concept of punishment does provide some measure of realistic deterrence.

However, punishing a few unlucky candidates in an effort to deter the masses comes at the expenses of having a criminal justice system that punishes a few people that share the same state of mind of many based on pure randomness.[16] To be more accurate, samplings of the population as a whole are not randomly selected for punishment. But rather, samplings of a relatively large group of the population, those with intent to drive recklessly, are randomly selected for punishment.[17] But random punishment within a confined portion of the population is still random punishment.

It is significant that of the pool of potential perpetrators to be punished, all are partaking in activity unusually dangerous to human life. If these perpetrators were only driving 56 miles per hour in a 55 mile per hour zone, it is unlikely that any would be cited for speeding. It is also unlikely that if one, by pure chance, happened to kill a human that he would not be held liable for manslaughter. In California gross negligence is a criterion for vehicular manslaughter.[18] This requirement is included in most statutes because “if the act the party was doing was merely malum prohibitum, he shall not be punishable for the act arising from misfortune or mistake.”[19] Rather, only consequences that result from mala in se crimes will give rise to punishment.[20] Most would probably agree that driving 1 mile per hour over the speed limit is malum prohibitum as it probably does not significantly increase the danger to human life. However, driving 30 miles per hour over the speed limit almost certainly does significantly increase the danger to human life and is thus probably mala in se.

State of mind seems to be a more accurate criterion with which to punish criminals and effectuate utilitarian policy. As one court put it “A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory ‘But I didn’t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution.”[21] Justice Black once suggested that “Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence”[22] If we are to heed his advice we must seek methods of punishment that serve utilitarian goals instead of indulging in the ancient human need for revenge.

In theory it thus makes sense that if one promotes utilitarian policy goals of criminal justice, one would punish both Driver A and Driver B equally. Theoretically a level of deterrence equal to what currently exists could be achieved through a medium level of punishment. For example, the punishments of all drivers who were caught driving 85 miles per hours, regardless of the consequences, should be averaged. Some drivers receive a $500 speeding ticket. Some killed a person and receive 6 years in prison. Perhaps the average punishment is a $1000 fine and 3 days in prison. Perhaps all drivers that drive 85 miles per hour should receive that punishment. Alternatively, perhaps just as attempted murder is often punished the same as completed murder because the mental intent is the same, driving over 85 miles per hour, regardless of whether someone is killed, should be punished as if someone was killed since the requisite mental intent was present. However, no matter what the punishment is, there is something about punishing all speeding drivers the same, regardless of the consequences, that sits uneasily with most people. The reason for this uneasiness will be explored in the next part.

EDIT – May 16, 2009 :  Part 2 of this discussion is finally posted here:  LINK


[1] This also assumes that we have perfect knowledge of the inner workings of the defendant’s mind.

[2] This is indeed a theoretical concept of state of mind. But such a standard is necessary for the scientific discussion that follows.

[3] Lawrence Crocker, The Upper Limit of Just Punishment , 41 Emory L.J. 1059, 1060 (1992)

[4] Morisette v. U.S., 72 S.Ct 240, 263 (1952)

[5] One could argue that strict liability crimes do indeed have a state of mind being the state of mind that ultimately lead to the undesirable consequence. The problem with this theory is that it presumes that consequences are a direct result of state of mind. While this is sometimes true, particularly when the state of mind rises to the level of purpose, often consequences have only a chance relationship to state of mind. This phenomenon is discussed in greater detail later in this article.

[6]It came to my attention long after I had completed this hypothetical that Bernard Williams used a similar hypothetical to illustrate his concept of “moral luck” (Williams Infra 31)

[7] Cal. Veh. Code §22351 (West 2004), Cal. Veh. Code §42001 (West 2004)

[8] Cal. Veh. Code §23103(c) (West 2004)

It is interesting to note that California Vehicle Code §23103(c) provides that the punishment described in that section does not apply if the reckless driving results in bodily injury to someone other than the reckless driver. If that is that case then California Vehicle Code §23104 governs with significantly harsher punishments.

[9] Drivers who have multiple points on their record are considered to be the most dangerous drivers. As a result their automobile insurance premiums are high. It is ironic this particularly high cost of insurance for dangerous drivers makes them more likely to carry reduced coverage or no coverage at all.

[10] Cal. Penal Code §192(c) (West 2004)

[11] Cal. Penal Code §193(c)(2) (West 2004)

[12] Cal. Penal Code §193(c)(3) (West 2004)

[13] The word “pay” is misleading because in actuality there is little that Driver B can do to economically compensate society for the loss of the child.

[14] Harmelin v. Michigan, 501 U.S. 957, 989 (1991)

Note: There is also a theory that a punishment must be proportional to intent. However, this argument would never arise when dealing with two defendants with identical intent.

[15] Utilitarian punishment would seek to punish in proportion to intended consequences, not actual consequences.

[16] In our criminal justice system many criminals are never caught. Whether or not a given criminal is caught is the result of a certain degree of randomness. One could argue that we have long since accepted that fact that our criminal justice system punishes criminals randomly in the sense that of those who commit crimes, a random few are selected for punishment. However, this long accepted notion that not all criminals are brought to justice is different from the concept discussed above. Rather that somewhat random punishment of crimes, the concept described above suggests that acts can randomly become criminal.

[17] If the state of minds of two defendant’s are identical and one kills a person and the other does not then there can be no direct relationship between the consequences of death and the state of mind of the perpetrators. Although the states of mind might have been such that there was a high probably that one or both perpetrators would kill, within the group of people who engage in such dangerous activity, a few actually kill based on factors that have no more of a connection to their state of mind that to the state of minds of others in the group who do not ultimately kill.

[18] Cal. Penal Code §192(c) (West 2004)

Note: Gross negligence is not required if the defendant was driving the vehicle in the commission of an unlawful act or in violation of California Vehicle Code Sections 23140, 23152, 23153,all pertaining to driving offenses involving alcohol or drugs..

[19] Commonwealth v. Matthew Adams, 114 Mass 323, 324 (1873)

[20] Id.

[21] Morisette v. U.S., 72 S.Ct 240, 251 (1952)

[22] Williams v. People of State of N.Y., 69 S.Ct. 1079, 1084 (1949)

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