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the intuitive appeal of the claim that “results matter” by introducing cases that do not support such intuitions and by offering an alternative account of why results sometimes do seem to matter. Beyond relying on intuitions, we reveal the flaws in law’s dependence upon results. We also argue that a principled distinction can be drawn between this sort of luck (so-called moral luck), which we believe does not matter, and constitutive and opportunity luck, the existence of which we do not believe undermines criminal responsibility. After setting forth our argument as to the irrelevance of results, we then consider the implication of our position for voluntary intoxication and other ancestral and (potentially) culpable acts, for inchoate crimes, and for factually and legally impossible attempts.

I. The Irrelevance of Results

Consider the following thought experiment. Assume that you are watching a DVD in which an actor decides that he wishes to kill his victim. He buys the gun. He lies in wait until she arrives home. He fires the gun. Now, press stop on the remote control. At this point, the actor has revealed his willingness to harm the victim. He has shown that he does not respect her life. He has acted with the purpose of killing her. Now, hit play. The bullet hits the victim, and the victim dies.

What have these later frames told you about what the actor deserves? We submit that they tell you nothing. These later frames speak neither to the influence that law and morality can have over the actor nor to the influence that the actor can have over the harm that occurs. Choice is a desert basis. Causation is not.

Our view that choice is a desert basis is uncontroversial. Even those who wish to punish attempters less than completers still believe that attempts may be punished. That is, choice and acting on that choice (as we discuss in Chapter 6) are sufficient grounds for desert and punishment. Moreover, it is not difficult to see why acting on a decision to harm or to risk harming someone is sufficient to ground desert and punishment. The criminal law seeks to influence that very choice.

Establishing that choice is a necessary (and sufficient) desert basis does not by itself establish that causing harm does not increase the

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actor’s desert. But we fail to see how causation gets its moral magic. First, as we have just said, causation is not necessary for negative desert. There is no question that attempters and riskers deserve punishment even if they do not cause harm. Second, causation is not sufficient. For if causation were sufficient, then even actors who exhibited sufficient concern for others and who exercised maximum care could be held criminally responsible for causing harms. In other words, we would have a strict liability regime. But strict liability runs counter to the very notion of desert because even individuals who care about others will occasionally (often?) harm them accidentally.

What is interesting about the current debate is that neither of these points is in dispute. The question is whether culpability plus causation has some moral magic that causation itself lacks. Quite frankly, we just do not see how causation suddenly gets this moral power.

Consider the following claim by Michael Moore: “ ‘Causation matters’ seems a pretty good candidate for a first principle of morality.” 2 Really? It seems to us that “you break it, you buy it” is not a first principle of the criminal law. Rather, the first principle is “treat others with sufficient concern.” Now, whatever the actor is going to do, the criminal law can influence the actor only by guiding the choice he makes. It is at this point that law and morality guide action, and it is through his choice that the agent controls his action and the results of his action. If the agent does not foresee harm, he is not held responsible for harm just because he caused it. In other words, causation without choice does not matter. So, if the criminal law’s power and the agent’s power over results occur at the point in time that the actor chooses to act, from where does the result itself derive additional moral power?

So far we have not so much made an argument as claimed that the other side should make one. But perhaps this is sufficient to shift the burden to the “results matter” folks. Indeed, we also do not have an argument for why it does not matter if one’s victim has eleven toes, or the killing occurs on a Tuesday, or the shooter uses his left hand, or the reckless driver’s car is red, and so forth. All we can say is that these things do not matter until we hear a compelling argument for why

2Michael S. Moore, Causation and Responsibility ch. 2 (forthcoming) (manuscript on fi le with authors).

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they do. If one is going to punish another person, one needs an account of why that person is deserving of punishment. “Results matter” and “results do not matter” folks alike both understand the force of the choice account. Choice based on practical reasoning provides a principled basis for holding individuals responsible in a determined world. Choice is something law and morality can influence. Choice reveals when an actor does not have sufficient concern for others’ interests. Thus, the arguments for choice are powerful. These arguments go to the heart of understanding the purposes of the criminal law, the nature of practical reasoning, and the root of criminal responsibility.

What are the arguments for results? Consider one argument that really goes nowhere. Results matter because the criminal law punishes people for what they do. An attempter does not kill. A killer does. Hence, even if the law cannot guide results as it guides actions, perhaps it serves a different function in retrospectively attributing blame to the causing of harms. But this approach ignores the fact that our actions may be redescribed in many ways, and we are not held accountable for some of those descriptions. That is, if an actor puts “sugar” in her companion’s tea, but someone has switched the sugar with poison, we may say that the actor poisoned her companion. However, even though this may be an appropriate description of the actor’s action, we do not hold her accountable for it. Once again, where choice and causation come apart choice trumps causation. So, it is not as though “doing” something that can be described as a harm causing is itself a desert basis.

The only argument on the table for punishing results more (as a matter of moral desert) is a phenomenological argument. We feel guiltier and blame others more when harm occurs. Before discounting the phenomenology (as we do in the next section), we wish to note here the contrast between the strength of the choice argument and the weakness of the results argument. The powerful and persuasive reasons that we have in favor of choice simply do not exist with respect to causation of results. Whereas the focus on the actor’s choice points to understanding human action as a matter of practical reasoning, the focus on results shifts the emphasis back to our mechanistic causal universe. The very significance of human action is absent from an account that points to harm caused as independently desert enhancing. So, even though all three of us are sympathetic to arguments premised on emotion and intuition, none of

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us can find a compelling principle beyond these purported emotions in the case of results.

II. The Intuitive Appeal of the “Results Matter” Claim

Undoubtedly, the man on the street believes that an actor’s killing of his victim is worse than an actor’s attempt to kill his victim. Such intuitions have, in fact, been verified empirically.3 Despite these intuitions, however, we must ask in what respect do results matter and, specifically, do they affect the actor’s blameworthiness?

Although the reader may initially feel the intuitive pull of the “results matter to blameworthiness” claim, consider the following two hypotheticals.

1.The Satanic Cult: Members of the gang have kidnapped someone. They have strapped him to a chair behind a partition, with the barrel of a rifle running through a small hole in the partition and pointing at the kidnapped victim’s heart. The rifle holds twenty rounds, and the gang loads it with nineteen blanks and one live shell. No one has any idea which shell is the live one. Twenty gang initiates who want to become full-fledged gang members are each required as a condition of membership to pull the rifle’s trigger once. (The initiates are unknown to one another and are not in any way acting in concert.) Each initiate pulls the trigger, and at the conclusion of the rite, the victim is found to have been killed by the one live round. No one can tell which initiate fired the round that killed him, nor is there a scientific test that can determine who did so.

Should we care which one of the twenty actually fired the live bullet if each thought he might have and is thus as culpable as the others? In what respect is this one person more blameworthy? Each person knew there was a chance that he might kill an innocent victim and chose to take that risk to join the cult. Each has shown the same disrespect for the victim’s life. None of the actors cared whether he actually succeeded.

3Paul H. Robinson and John M. Darley, Justice, Liability and Blame: Community Views and the Criminal Law 23 (1995). Importantly, the Robinson and Darley study compares incomplete attempts with completed crimes.

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The one who pulled the trigger that fired the live round, whoever it was, is no more culpable than the other nineteen.4

2.The Broken Window: Suppose that two children have been told not to toss and hit baseballs into their neighbor’s yard because the ball might hit the neighbor’s window. And suppose, while the parents are away, each child acting alone at different times of day, tosses and hits a baseball into the neighbor’s yard. At the end of the day, when the parents return, an angry neighbor appears with two baseballs – one from his yard and one from his house – and one piece of broken glass. Each child, when summoned, admits hitting a baseball into the neighbor’s yard, but neither knows if his baseball hit the window.

It seems to us that no parent would spend one second trying to determine which child caused the damage, but rather, all parents would punish both children and both children equally. Indeed, if after having grounded both children for two weeks, any parent discovered an eyewitness who knew which child broke the window, we doubt that any parent would believe that he overpunished the one attempter and would therefore seek to make amends, say, by granting the child extra television time. Whether these parents seek to deter future conduct or to punish current conduct, parents will want to punish their children for violating the conduct rule, “Do not hit balls into the neighbor’s yard,” irrespective of which child caused the harm that justifies that rule – “because so doing might break the neighbor’s window.”

This second hypothetical underscores an important point. We do not claim that harm does not matter. Of course it does. If the children miss the window, the neighbor is not (as) angry, and the parents are not paying for a new pane of glass. (Alternatively, we often feel guilt for causing harm, even in the absence of culpability, such as when we break something through no fault of our own.) Our criminal laws embody and enforce norms the aims of which are to prevent the unjustified harming of other people. The criminal law is aimed at reducing harm. Harm is what the criminal law ultimately cares about.

4T his example illustrates the absurdity of a real-life analogue: the practice of putting a blank in one of the rifles in a firing squad so that everyone might later feel less guilt because his rifle might have had the blank.

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Notably, simply because preventing the harm may justify the rule does not mean that causing the harm increases the actor’s blameworthiness. In any case in which the actor consciously disregards an unjustifiable risk by engaging in reckless action, he displays insufficient concern for causing that harm. The risk of harm an actor unleashes is preventable. The actor’s act, and whether it is unduly risky, may be guided by reasons. The results of his act cannot be. These results can be guided only by those same reasons and by the same choice to act.

Criminal law, therefore, is about reducing harm because the occurrence of harm itself is not irrelevant to us. In some sense, it is all that matters. No one doubts that the success of the actor has a significant effect on the victim. The difference between murder and attempted murder is quite simply the difference between death and life. We hope to keep our lives, limbs, and valuables, and to the extent that actors aim at depriving us of these items, it certainly matters whether actors succeed or fail.

Simply because results matter, however, does not mean that they matter for purposes of moral desert. We make many decisions each day, and the results of these decisions may matter to us, but the results are morally irrelevant to an actor’s praiseworthiness or blameworthiness. Just as results matter for even the most simple of life’s decisions, results matter for the most important actions we take. Indeed, imagine a case in which someone tries to rescue a friend from drowning. The praiseworthiness of the behavior is independent of success or failure, despite the fact that success or failure is critically important to the rescuer (and the friend). Conversely, our praise for a successful painter’s beautiful work may be greater than our endorsement of an unsuccessful painter’s unsightly one, but these views are not moral judgments about the painters.

In summary, although it may be true that individuals have unprincipled intuitions that results matter, there is reason to doubt that these intuitions are moral intuitions that the actor deserves less punishment for his offense.5 First, the generalization that harm intuitively matters

5For some recent attempts to explain these intuitions without accepting the conclusion that results matter to moral desert, see Edward Royzman and Rahul Kumar, “Is Consequential Luck Morally Inconsequential? Empirical Psychology and the Reassessment of Moral Luck,” 17 Ratio 329 (2004) (attributing the intuitions to hindsight bias); Darren Domsky,