Ya know, this doctrine of felony murder raises a question in me that in one way or another I've been pondering a while. Have we (collectively) made up our minds on whether we criminalize bad...
Ya know, this doctrine of felony murder raises a question in me that in one way or another I've been pondering a while. Have we (collectively) made up our minds on whether we criminalize bad outcomes, or the risk of bad outcomes? And if we have decided, how consistent are we in that?
Here's the basic problem: If I do something that ran a risk of, say, killing someone, do we punish me for doing that thing, but mildly, or do we punish me more severely, but only if it actually kills someone? In a way, to achieve deterrence (or something like it) the punishment must grow with decreasing odds of actually being made to stick. If I have a 10% chance of getting caught stealing, the punishment must be 10x the economic gain or damage, or else this is easily exploited. If I have a 10% chance of killing someone in my above setup, then the punishment must be 10x, if we do indeed punish the outcome.
Why am I coming up with this right now? Because to me it seems that felony murder basically takes an illegal thing, perhaps illegal because of how dangerous it is, and slaps on an extra punishment if a more or less remote, but ultimately random, event occurs. For an example of things being more criminal because they're more dangerous, look perhaps at physical theft and mere fraud; I'm sure fraud carries less of a sentence, and I imagine it's because in all events restitution can be made in mostly just money. Reverse the transaction, done. Slap some extra penalty on it for deterrence and we're done. Theft? Can easily escalate to violence, and now here's a dead body. That's a transaction we can't just have VISA reverse. Now if that original felony is so illegal because of its dangers to society, then the risk of violence has already been punished. And in my mind it makes no sense to double dip and not make up our minds - it's either the risk, or the outcome.
Now that I'm writing about it, I'm not sure anymore why I'm so convinced that we have to make up our minds at all. It feels cleaner I guess, but maybe there was also a more fundamental reason that I had in mind that I can't seem to remember.
In North America, the risk of bad outcomes is criminalized, and punishment is based on the actual outcome. It's basically the worst way to do things, because most of the time, nothing bad happens,...
Have we (collectively) made up our minds on whether we criminalize bad outcomes, or the risk of bad outcomes?
In North America, the risk of bad outcomes is criminalized, and punishment is based on the actual outcome. It's basically the worst way to do things, because most of the time, nothing bad happens, so even if you do get caught, you're not actually punished. We're not disincentivizing/punishing the conscious behaviours - the only punishment results from the random chance that you have almost no control over.
For example, lots of people drive drunk, tired, while texting, or just generally distracted. Some of these are illegal, some are not. But until you actually cause a collision and/or kill someone, the worst that happens is a slap on the wrist. Texting while driving can't be that bad, because the punishment is only a small fine. As little as $50 in New York. Here in Ontario, Canada, it's more punishing at $615 for a first offence, but that would require enforcement before people start to care. Driving while intoxicated is similar. In some regions (e.g. Washington DC), your first offence can be a small financial cost (<$1000). No jail time, no license suspension. But the first time you get caught probably isn't the first time you've done it. Punishment and jail time only kicks in once you've been caught multiple times, and/or you injure or kill someone. To me, that's backwards, because the risk/reward calculation will not even consider the small chance of something going wrong.
Felony murder laws (not a thing here in Canada, thankfully) can make sense in some contexts, but are often just too broad (for example, in the OP article). The death was not caused during or due to the crimes Sadik Baxter was committing. It was a separate crime (running from police, and the various traffic laws) that caused those deaths. From what I know about felony murder, this should not have resulted in that conviction, but I'm not a lawyer. If instead, Baxter and Oakley had been robbing cars and Oakley had murdered someone who was sleeping in the back seat, then sure, felony murder could make sense. But vehicular manslaughter was not something that could easily be foreseen as an outcome of breaking into cars, so it shouldn't result in felony murder charges.
Incidentally that's why I think mandatory service playing cleanup crew after car wrecks and/or the ER is a better option for texting/DUI offenses. Eliminates financial disparity problems, perform...
Incidentally that's why I think mandatory service playing cleanup crew after car wrecks and/or the ER is a better option for texting/DUI offenses. Eliminates financial disparity problems, perform useful labor that maybe makes you ponder your choices that lead to the punishment beyond getting caught.
It reduces financial disparity problems, it doesn't eliminate them. Someone working multiple minimum wage jobs can't afford an unpaid day of work nearly as easily as someone who is financially...
It reduces financial disparity problems, it doesn't eliminate them. Someone working multiple minimum wage jobs can't afford an unpaid day of work nearly as easily as someone who is financially comfortable or even just has a job that offers PTO.
That said, it's a good suggestion and I generally support it. Definitely more than fines.
I don't disagree, but If there's one place that I don't really have sympathy for a poor person, it's when getting busted for a DUI. It's more about making that offense genuinely punishing to...
I don't disagree, but If there's one place that I don't really have sympathy for a poor person, it's when getting busted for a DUI. It's more about making that offense genuinely punishing to someone who isn't in that position, which I think is more broadly applicable.
We could maybe even force their employer/s to pay for the community service the way we do for jury duty. I like this idea as well.
I like that you're thinking creatively, but I would not want to pay an employee for not-working on my business after they did some heinous crime. I can accept jury duty, its a civic duty and...
We could maybe even force their employer/s to pay for the community service the way we do for jury duty. I like this idea as well.
I like that you're thinking creatively, but I would not want to pay an employee for not-working on my business after they did some heinous crime. I can accept jury duty, its a civic duty and required equally by all. But I'd just as soon let a problem employee go if I was forced to pay for a day of non-labor due to a DUI cleanup or some such.
I mean, just compare the penalty for speeding (usually a fine, or even a warning if you're polite at the officer is in a good mood) with the penalty for speeding and causing a wreck that kills...
I mean, just compare the penalty for speeding (usually a fine, or even a warning if you're polite at the officer is in a good mood) with the penalty for speeding and causing a wreck that kills someone.
Attempted murder has a different punishment than actual murder, even though you're clearly attempting to murder someone.
Robbery has penalties based on how much you steal, so an incompetent thief who doesn't steal very much will face less time than a good thief if they're both caught.
In quite a few categories beyond felony murder, people can get significant variance in their sentences based on factors entirely outside of their control.
Is it like that in the US? I think that generally speaking, it depends on the jurisdiction. For example in a country where I live, the crime of attempted murder carries the same sentence as...
Attempted murder has a different punishment than actual murder, even though you're clearly attempting to murder someone.
Is it like that in the US? I think that generally speaking, it depends on the jurisdiction. For example in a country where I live, the crime of attempted murder carries the same sentence as murder.
It makes sense to me - people should be punished based on their actions, not based on the luck of a victim miraculously able to survive six stab wounds in the stomach.
Actually you are right, at least for my state, with regards to murder. However, for every other crime an attempt gets knocked down a level. If you actually commit a Class A felony, you're looking...
Actually you are right, at least for my state, with regards to murder. However, for every other crime an attempt gets knocked down a level.
If you actually commit a Class A felony, you're looking at 10 years to life depending on the details. If you attempt one and fail, you're looking at 2-20 years, as if it was a Class B felony. And so on all the way down. Simply failing to accomplish the crime you tried to commit can save you huge amounts of jail time.
Sadly this is not what happens in most fraud cases. Generally fraudsters tend to spend or hide their money. Once the money is offshore it becomes really hard to get back. Actually pushing a case...
I'm sure fraud carries less of a sentence, and I imagine it's because in all events restitution can be made in mostly just money. Reverse the transaction, done. Slap some extra penalty on it for deterrence and we're done.
Sadly this is not what happens in most fraud cases. Generally fraudsters tend to spend or hide their money. Once the money is offshore it becomes really hard to get back. Actually pushing a case to completion takes years, legal fees are really high, usually some of the money has been spent, there are then lots of creditors (most financial fraud has low marginal costs – it's not that much harder to scam 100 people than 50) and you become one of them fighting over an asset pool that is too small to make everyone whole. Police generally aren't great at investigating financial crime either (totally different skillset to e.g. directly violent crime).
The sad truth is that victims are often lucky if they get back any money, much less anything approaching amounts you would hope (e.g. above 80-90 cents on the dollar).
It's also not easy to prosecute fraud as often fraudsters operate over the internet in other jurisdictions which aren't going to help you (e.g. Russia) OR they pretend to be legitimate (e.g. sell you investment services which they pretend are legitimate) which is quite easy to do when it comes to fraud (compared to other kinds of theft) OR they pretend that they didn't know what they were doing was illegal.
To be clear, I'm not saying that victims of fraud can just be made whole from the assets of the perpetrator. But ultimately it's "just money", and at least in theory the restitution is trivially...
To be clear, I'm not saying that victims of fraud can just be made whole from the assets of the perpetrator. But ultimately it's "just money", and at least in theory the restitution is trivially easy. In a way I'm saying that a lawmaker might say "well, it's easy to provide restitution, thus the prison sentence needn't be as long", completely ignoring the reality that providing that restitution is not easy unless the state fronts the bill.
I don't think that's why fraud sentences are less tough – I think it's because judges (slash the justice system) generally consider fraud to be less harmful than violent crime (and to some extent...
I don't think that's why fraud sentences are less tough – I think it's because judges (slash the justice system) generally consider fraud to be less harmful than violent crime (and to some extent this is true, e.g. stealing 1k versus hitting someone with a baseball bat) and thus punish it less severely.
I think the key issue here is that the mens rea is not there – I can kind of understand prosecuting an armed robber if their partner in crime shoots someone during a robbery (although personally I...
I think the key issue here is that the mens rea is not there – I can kind of understand prosecuting an armed robber if their partner in crime shoots someone during a robbery (although personally I don't really agree with this). I really can't understand the "well you did crime together so you are responsible for anything your co-perpetrators do if they run off and then go shoot someone separately".
This specific sentence is, in my mind at least, clearly unjustified (as the man in question was kilometers away, and in police custody at the time). I hope that he will have success in getting his murder conviction overturned.
Ya know, this doctrine of felony murder raises a question in me that in one way or another I've been pondering a while. Have we (collectively) made up our minds on whether we criminalize bad outcomes, or the risk of bad outcomes? And if we have decided, how consistent are we in that?
Here's the basic problem: If I do something that ran a risk of, say, killing someone, do we punish me for doing that thing, but mildly, or do we punish me more severely, but only if it actually kills someone? In a way, to achieve deterrence (or something like it) the punishment must grow with decreasing odds of actually being made to stick. If I have a 10% chance of getting caught stealing, the punishment must be 10x the economic gain or damage, or else this is easily exploited. If I have a 10% chance of killing someone in my above setup, then the punishment must be 10x, if we do indeed punish the outcome.
Why am I coming up with this right now? Because to me it seems that felony murder basically takes an illegal thing, perhaps illegal because of how dangerous it is, and slaps on an extra punishment if a more or less remote, but ultimately random, event occurs. For an example of things being more criminal because they're more dangerous, look perhaps at physical theft and mere fraud; I'm sure fraud carries less of a sentence, and I imagine it's because in all events restitution can be made in mostly just money. Reverse the transaction, done. Slap some extra penalty on it for deterrence and we're done. Theft? Can easily escalate to violence, and now here's a dead body. That's a transaction we can't just have VISA reverse. Now if that original felony is so illegal because of its dangers to society, then the risk of violence has already been punished. And in my mind it makes no sense to double dip and not make up our minds - it's either the risk, or the outcome.
Now that I'm writing about it, I'm not sure anymore why I'm so convinced that we have to make up our minds at all. It feels cleaner I guess, but maybe there was also a more fundamental reason that I had in mind that I can't seem to remember.
In North America, the risk of bad outcomes is criminalized, and punishment is based on the actual outcome. It's basically the worst way to do things, because most of the time, nothing bad happens, so even if you do get caught, you're not actually punished. We're not disincentivizing/punishing the conscious behaviours - the only punishment results from the random chance that you have almost no control over.
For example, lots of people drive drunk, tired, while texting, or just generally distracted. Some of these are illegal, some are not. But until you actually cause a collision and/or kill someone, the worst that happens is a slap on the wrist. Texting while driving can't be that bad, because the punishment is only a small fine. As little as $50 in New York. Here in Ontario, Canada, it's more punishing at $615 for a first offence, but that would require enforcement before people start to care. Driving while intoxicated is similar. In some regions (e.g. Washington DC), your first offence can be a small financial cost (<$1000). No jail time, no license suspension. But the first time you get caught probably isn't the first time you've done it. Punishment and jail time only kicks in once you've been caught multiple times, and/or you injure or kill someone. To me, that's backwards, because the risk/reward calculation will not even consider the small chance of something going wrong.
Felony murder laws (not a thing here in Canada, thankfully) can make sense in some contexts, but are often just too broad (for example, in the OP article). The death was not caused during or due to the crimes Sadik Baxter was committing. It was a separate crime (running from police, and the various traffic laws) that caused those deaths. From what I know about felony murder, this should not have resulted in that conviction, but I'm not a lawyer. If instead, Baxter and Oakley had been robbing cars and Oakley had murdered someone who was sleeping in the back seat, then sure, felony murder could make sense. But vehicular manslaughter was not something that could easily be foreseen as an outcome of breaking into cars, so it shouldn't result in felony murder charges.
Incidentally that's why I think mandatory service playing cleanup crew after car wrecks and/or the ER is a better option for texting/DUI offenses. Eliminates financial disparity problems, perform useful labor that maybe makes you ponder your choices that lead to the punishment beyond getting caught.
It reduces financial disparity problems, it doesn't eliminate them. Someone working multiple minimum wage jobs can't afford an unpaid day of work nearly as easily as someone who is financially comfortable or even just has a job that offers PTO.
That said, it's a good suggestion and I generally support it. Definitely more than fines.
I don't disagree, but If there's one place that I don't really have sympathy for a poor person, it's when getting busted for a DUI. It's more about making that offense genuinely punishing to someone who isn't in that position, which I think is more broadly applicable.
We could maybe even force their employer/s to pay for the community service the way we do for jury duty. I like this idea as well.
I like that you're thinking creatively, but I would not want to pay an employee for not-working on my business after they did some heinous crime. I can accept jury duty, its a civic duty and required equally by all. But I'd just as soon let a problem employee go if I was forced to pay for a day of non-labor due to a DUI cleanup or some such.
For a philosophical take on this, see Moral Luck. Philosophers aren't even sure people should be equally to blame regardless of the outcome.
I'm glad someone posted this! It's a thorny problem.
Here's a nice video that covers it at a very accessible level if anyone is interested and doesn't want to do heavy reading
I mean, just compare the penalty for speeding (usually a fine, or even a warning if you're polite at the officer is in a good mood) with the penalty for speeding and causing a wreck that kills someone.
Attempted murder has a different punishment than actual murder, even though you're clearly attempting to murder someone.
Robbery has penalties based on how much you steal, so an incompetent thief who doesn't steal very much will face less time than a good thief if they're both caught.
In quite a few categories beyond felony murder, people can get significant variance in their sentences based on factors entirely outside of their control.
Is it like that in the US? I think that generally speaking, it depends on the jurisdiction. For example in a country where I live, the crime of attempted murder carries the same sentence as murder.
It makes sense to me - people should be punished based on their actions, not based on the luck of a victim miraculously able to survive six stab wounds in the stomach.
Actually you are right, at least for my state, with regards to murder. However, for every other crime an attempt gets knocked down a level.
If you actually commit a Class A felony, you're looking at 10 years to life depending on the details. If you attempt one and fail, you're looking at 2-20 years, as if it was a Class B felony. And so on all the way down. Simply failing to accomplish the crime you tried to commit can save you huge amounts of jail time.
Sadly this is not what happens in most fraud cases. Generally fraudsters tend to spend or hide their money. Once the money is offshore it becomes really hard to get back. Actually pushing a case to completion takes years, legal fees are really high, usually some of the money has been spent, there are then lots of creditors (most financial fraud has low marginal costs – it's not that much harder to scam 100 people than 50) and you become one of them fighting over an asset pool that is too small to make everyone whole. Police generally aren't great at investigating financial crime either (totally different skillset to e.g. directly violent crime).
The sad truth is that victims are often lucky if they get back any money, much less anything approaching amounts you would hope (e.g. above 80-90 cents on the dollar).
It's also not easy to prosecute fraud as often fraudsters operate over the internet in other jurisdictions which aren't going to help you (e.g. Russia) OR they pretend to be legitimate (e.g. sell you investment services which they pretend are legitimate) which is quite easy to do when it comes to fraud (compared to other kinds of theft) OR they pretend that they didn't know what they were doing was illegal.
To be clear, I'm not saying that victims of fraud can just be made whole from the assets of the perpetrator. But ultimately it's "just money", and at least in theory the restitution is trivially easy. In a way I'm saying that a lawmaker might say "well, it's easy to provide restitution, thus the prison sentence needn't be as long", completely ignoring the reality that providing that restitution is not easy unless the state fronts the bill.
I don't think that's why fraud sentences are less tough – I think it's because judges (slash the justice system) generally consider fraud to be less harmful than violent crime (and to some extent this is true, e.g. stealing 1k versus hitting someone with a baseball bat) and thus punish it less severely.
... but if you look at my original comment, that's exactly my point. I'm so confused.
Mirror, for those hit by the paywall:
https://archive.is/2OWgt
I think the key issue here is that the mens rea is not there – I can kind of understand prosecuting an armed robber if their partner in crime shoots someone during a robbery (although personally I don't really agree with this). I really can't understand the "well you did crime together so you are responsible for anything your co-perpetrators do if they run off and then go shoot someone separately".
This specific sentence is, in my mind at least, clearly unjustified (as the man in question was kilometers away, and in police custody at the time). I hope that he will have success in getting his murder conviction overturned.