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Murder, attempt, and the luck in between: looking at luck and legal responsibility
thesisposted on 2022-03-28, 23:02 authored by Julia Patricia O'Brien
In this thesis, I assess the justifiability of legal luck in the area of criminal attempt. Specifically, I address the question of whether, other things being equal, it is justifiable to accord different punishments to offenders who successfully complete crimes, and offenders who perform the final act necessary to complete a crime, yet fail in their attempt solely due to factors beyond their control (call these 'last act attempters). As my case study illustrates, the penal distinction between murder and attempted murder makes a significant difference to the lives and sentencing of offenders. It is thus important that we consider whether the impact of legal luck is justified, and hence whether we ought to equalise the punishment of last act attempts and completed crimes as a matter of justice. Some scholars attempt to determine the justifiability of legal luck by appealing to a separate debate, arising within moral philosophy, about the existence of 'moral luck'. They claim that the justifiability of legal luck is established simply by resolving the question of whether moral luck exists. I argue that the link between the moral luck and legal luck debates is more complex than these scholars assume. Adopting a mixed theory of punishment, I contend that the justifiability of legal luck is determined not only by our view about the existence of moral luck, but also by practical 'non-retributive' considerations relevant to the aims of the criminal law. On the basis of the non-retributive considerations assessed, I conclude that legal luck is justified in the area of attempt, despite assuming the view that moral luck does not exist. Significantly, this conclusion implies that we should uphold a penal distinction between last act attempts and completed crimes, even if we consider the agents committing these crimes to be equally morally blameworthy.