The Entropy in Crime and Punishment

Punishing Consequences or State of Mind: An Examination of the Driving Force Behind the Criteria Used for Criminal Punishment – PART 2

This post is a hugely delayed continuation of a discussion that I began several months ago here:  Do We Imprison People Randomly? If you have not read that earlier post, this post may lack context.

The Reality Equation

randomcrimeThe intuitive response to the hypothetical presented in Part 1 is that it takes place under circumstances that can only exist in a fictional world. In reality, it is virtually impossible for Driver A and Driver B to have identical states of mind. Perhaps Driver B was driving a smidgen faster than Driver A. Perhaps Driver A had a car that was capable of handling faster speeds safer. Perhaps the wind was blowing against Driver A but with Driver B making it easier for Driver A to halt his car in an emergency. There are countless factors that could bear on the safety of the driver’s conduct. It is the action of the driver under the precise unique circumstances of the moment that give rise to the state of mind of the driver. Thus, there might never be a real situation where two individuals truly have an identical state of mind.

This uniqueness of state of mind applies to all crimes. It applies whether or not specific intent is an element of the crime. In reality there are infinite variations of states of mind and every person’s is at least in some minute fashion truly unique. With regards to reckless driving, something as obvious as weather conditions or, something as minute as a puff of dust on the side of the road[1], factors into the state of mind of the driver given that driver’s actions in regards to those elements. With regards to murder, something as overt as the age of the victim or subtle as the victim’s propensity for heart problems weigh in on the state of mind of the perpetrator. Note that in order for such circumstances to factor into the perpetrator’s state of mind there must be something that, to some degree, gives the defendant’s mind knowledge of the circumstances. Typically, when a crime requires a high degree of intent, such as first degree murder, a firmer showing of the perpetrator’s knowledge of the factors surrounding his state of mind is required. Stated differently, the difference between vehicular manslaughter and first degree murder with the instrumentality of the murder being a motor vehicle would be, given the totality of his surroundings, the probability that the perpetrator believed his actions could result in death.

Perhaps we base punishments partially on consequences because we believe that consequences, to some extent, reflect on the perpetrator’s state of mind. Revisiting the hypothetical in Part 1, it is obvious that the two drivers could not have precisely the same state of mind. In reality no two drivers can have precisely the same state of mind. As such, it is inaccurate to say that we are punishing two defendants with the same state of mind differently. But it is impossible to decipher either driver’s state of mind with any meaningful degree of accuracy.[2] The minutest factor could make the difference in whether or not one driver’s state of mind could result in someone’s death. Take the puff of dirt mentioned earlier. Two speeding drivers might notice the puff of dirt off the side of the highway ahead of them. The first driver might think to himself that the puff of dirt could potentially have been kicked up by a person.  He may believe this possibility to be unlikely.  But, nonetheless, he may react by paying just slightly more attention to that side of the road ahead. He might also slow down just a smidgen, say one mile per hour. However between that little extra attention to the side of the road ahead and the small decrease in speed, he is able to stop just barely in time to avoid hitting the child that ultimately runs into the highway. He may only miss the child by a fraction of an inch, but nonetheless the child is unharmed. The second driver ignores the puff of dirt and does not slow down. He does not reallocate any attention to that side of the road. When the child runs in front of the second driver he cannot stop in time. He hits the child and kills the child. The small differences between how these two drivers reacted to the subtle nuances of their surroundings makes the difference between life and death.

Furthermore, the effect of many subtle elements is unobvious. The effect that speed and weather conditions have on the danger of a situation is obvious. The effect that wind conditions have on the danger may be less obvious. The effect that a puff of dust from an unknown origin has on the danger of a situation is indefinable.

However, these subtle nuances in the circumstances of a defendant’s actions are virtually impossible to account for. Because one is unable to account for every small unapparent element that bears on the circumstances surrounding a defendant’s actions, one must resolve to taking into account facts that are more tangible. Consequence is a logical tangible fact to use to evaluate a defendant’s actions.

Consequences as Evidence of State of mind

Consequences are one of the easiest criteria to use to evaluate a defendant’s actions. Unlike the thoughts that take place in a defendant’s mind, consequences are tangible and can be accurately recorded and recounted. Consequences alone are not purely a result of state of mind. As discussed earlier, in theory, two identical states of mind can lead to different consequences. However, knowing that there is no such thing as identical states of mind in the real world, we may use consequences to try to decipher state of mind.

When attempting to ascertain a defendant’s state of mind, we may use the consequences of the defendant’s actions as evidence to help us discover certain things about the state of mind. For example, if a man is driving down the road and hits and kills a child, we know that under those specific circumstances, the man’s state of mind was sufficient to lead to the death of a child. This philosophical conclusion is far from the legal conclusion that the man committed a crime. However, we do know that whatever the state of mind was, it was a state of mind that could result in death.[3]

Returning to the hypothetical of the two speeding drivers, absent more accurate knowledge about the drivers’ states of mind, the fact that one driver actually killed a person is evidence that his state of mind was more dangerous to human life. Since we cannot read the minds of defendants, perhaps we choose certain facts to imply a given state of mind. Note that if this is a motivation behind taking consequences into account, the use of consequences as evidence of state of mind does not happen in the court room. The prosecutor does not picture of a dead child, show it to the jury and say “The child is dead. The defendant hit the child with his car. Therefore you must find the defendant guilty.”[4] Rather the legislature would make the decision that the consequence of a dead human is evidence enough that people who drive recklessly and kill someone exhibit a state of mind that is different than those who drive a car and do not kill someone. Thus, those who drive recklessly and kill someone need to be punished more harshly.[5] This, of course, assumes a legislature that enacts purely utilitarian laws, a legislature that probably only exists in fiction.

But even if this is the reason that consequences are taken into account, is there not still a high degree of randomness in punishment? Just because one driver killed a person does not necessarily mean that his state of mind was more dangerous to human life. There is still the possibility that many drivers drive in a manner more dangerous to human life but never have the misfortune to kill a person and are thus never punished.

Revisiting Policy Goals

This discussion hopefully causes one to reexamine the policy goals for criminal punishment. To review, punishing consequences furthers the policy goal of retribution by causing the criminal to suffer for the suffering he has caused. Punishing consequences can also further the policy goals of deterrence by making certain states of mind risky to the perpetrator. However, the punishment that gives rise to this deterrence is based on consequences that appear to have a somewhat random relationship to state of mind. Lastly, consequences may be taken into account as evidence of state of mind. However, even as evidence of state of mind, consequences are still to some extent only randomly related to state of mind. This system of punishment provides “radically different penalties for two defendants who are equally culpable and indistinguishable in terms of other factors related to their personalities and actions.”[6] This result occurs because we understand that identical states of mind can produce different consequences based on circumstances outside the knowledge or control of the defendant. This random fashion of punishment may sit uneasily with people who have difficulty with randomness being actively built into the criminal justice system.[7] And “there remains something deeply offensive in the calculated use of randomness to assign criminal penalties, particularly severe ones.”[8] If one advocates taking consequences into account in the punishment equation, they must be satisfied with either the policy goal of retribution or a criminal justice system that punishes with a degree of randomness. On the other hand, perhaps whether or not a person’s actions are truly good or bad is a result of pure luck.[9]

Ultimately it seems as though many people feel a strong need to punish those who kill more harshly than those who only have an unrealized potential to kill. To some degree most people have probably at some point in their lives acted with negligence sufficient to create the possibility, however remote, that someone could die as a result of their actions. As such, there is an understandable discomfort in punishing everybody that has only the potential to kill too harshly. Within the realm of dangerous activity that most people partake in everyday, there is some activity that is exceptionally dangerous. Reckless driving is one example of such type of activity. However, there is still a rather large portion of our population that will at some point in their lives drive in a reckless manner. It seems barbaric to punish all of these perpetrators too harshly for doing something that so many people do. However, when someone is killed, there is a pressing need to punish the perpetrator harshly. This pressing need to punish said perpetrator is a human gut reaction to the death of a human being. It is the human need to avenge those who have been hurt. It is what the legal community refers to as retribution. In the end, the human emotional need for retribution is probably the primary driving force for punishing perpetrators with similar states of mind differently. After reading this discussion hopefully the reader will have a heightened awareness of the paradigm of a criminal justice system that associates punishment with consequences. If said punishment is issued in an aim to further utilitarian policy goals then one must acknowledge that said punishment has a relationship that is to some degree only randomly related to the that policy goal. If said punishment is not issued in an aim to further utilitarian policy goals then, assuming all punishments must stem from utilitarianism or retributivism or some combination thereof, said punishment must aim to further the policy goal of retribution. In any case, associating punishments with consequences results in a criminal justice system that punishes with some combination of randomness and retributivism.


[1] Something as simple as a puff of dust on the side of the road could potentially indicate to an observant driver the possibility that there could be a human on the side of the road kicking up that puff of dust.

[2] Although we can never have precise knowledge of a defendant’s state of mind, we do currently choose to make some vague distinctions between defendants state of minds. For example, a speeding driver who kills a child is punished less harshly that gang member who kills a child in a drive by shooting. The consequences of the defendants’ actions are the same. Nonetheless, the circumstances surrounding the killings (driving a car recklessly vs. aiming and firing a gun) gives us an easy criteria to use to differentiate there state of minds.

[3] The reader may find this statement immaterial. If a man in China died while this discussion was being written one could make the statement that given the circumstances, the author’s state of mind was sufficient to cause the death of the man in China. Given those facts that would be a logically true statement. In some infinitesimally small way, the typing on the keyboard affects the rest of the world. The typing on the keyboard may jar the earth and force a trillionth of a millimeter shift in an atom in China. That trillionth of a millimeter shift in an atom could have ultimately caused a chain of events that lead to the death of the man in China. However, the odds are astounding high that but for the authoring of this discussion the man in China would still have died. Obviously, there must be proximity between the defendant and the undesirable consequence that realistically brings into question the possibility that the defendant’s state of mind lead to the consequence.

[4] Or criminal justice system requires a showing of some level of intent, even if it is not correlated with consequence.

[5] This theory of punishment leads to a system where drivers who drive recklessly and kill are punished more harshly than drivers who drive recklessly and do not kill based on the policy goal of encouraging reckless drivers to exercise caution in their reckless driving. One must remember that we cannot deter consequences; we can only deter state of mind that leads to consequences. If this policy goal seeks to deter consequences by deterring the state of mind that leads to the consequences, the only way that it can punish in a way that is not randomly related to state of mind is if the state of mind that leads to consequences is indeed different from the state of mind that has no undesirable consequence.

[6] Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U.Pa L.R. 1497, 1570 (1974)

[7] Punishing based on consequences creates a different kind of randomness in punishment than we have come to accept. The kind of randomness that results from our inability to catch every criminal is a randomness that we accept because we are physically unable to catch every criminal. The kind of randomness that results when we punish criminals based on intent on a theory of deterrence by risk is one that is actively built into our criminal justice system.

[8] Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U.Pa L.R. 1497, 1572 (1974)

[9] Bernard Williams, “Moral Luck,” The Aristotelian Society Supplementary Volume 1, 1976

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