"The Difference of Differential Punishment" - Sayid R. Bnefsi (Fairfield University)

By R.A. Duff (review of the paper by Sayid R. Bnefsi)

In many jurisdictions, someone who tries but fails to commit a crime is liable to conviction for a criminal attempt, but will be punished less severely than they would have been punished had the attempt succeeded. Legal theorists continue to devote substantial time and energy to the question of whether, and why, this common practice is justified; Sayid Bnefsi offers a new and intriguing argument in favour of the practice, at least in the context of attempted murder.[1]

The central claim is that murder and attempted murder involve ‘essentially distinct wrongs’, so that the successful murderer commits two distinct criminal wrongs, whilst the unsuccessful would-be murderer commits only one; and we properly punish one who commits two wrongs more severely than we punish one who commits only one of those wrongs. What then are these two wrongs? According to Bnefsi attempted murder involves the wrongness-making condition of the offender’s extreme indifference to a person’s interest in not being killed, which is manifested by taking affirmative steps to take that person’s life. Murder, by contrast, involves the wrongness-making condition of the offender’s reckless indifference to the occurrence of a killing during the commission of a crime in which risking a killing is an inherent part of the crime. Attempted murder thus involves ‘an indifference to the person-relative legal interest that others do not act with the intent to take their life’; murder ‘injures the person-neutral legal interest that all individuals have against killings during unlawful activities in which killings are inherently at risk’.

Bnefsi grounds his argument on three doctrines in American criminal law: the felony murder rule, under which it is murder to cause death in the course of committing any of a specified range of felonies; the transferred intent doctrine, under which someone who attempts to kill V1, but instead accidentally kills V2, is guilty of murdering V2, and perhaps of attempting to murder V1; and the rule that one can be convicted of attempting to commit a crime even if it was in fact impossible for the attempt to succeed. Thus, for instance, someone who accidentally causes death in the course of committing a felony commits the second kind of wrong, but not the first: that is why they are not guilty of attempted murder if, luckily, they