The role of luck in the criminal law.

• Author: Kessler, Kimberly D.

INTRODUCTION

Tessie Hutchinson held a slip of paper in her hand, and that paper had a black spot on it. While she stood in the center of the crowd and screamed, "It isn't fair, it isn't right," the villagers stoned her to death. Of what, you ask, was Tessie guilty? Nothing. She was selected by lottery to be the recipient of this punishment. She had done nothing wrong.

Tessie Hutchinson is merely a character in Shirley Jackson's "The Lottery."(1) In this story, luck is the determining factor for liability. "Well," we may sigh and say, "at least our criminal justice system is not based on such a premise." We would be wrong, however. Luck does currently play a role in our legal system. For example, imagine that Alice is shooting at Bob with intent to kill him. The following situations are possible:

1) The bullet hits Bob and kills him. Alice is guilty of murder.

2) The bullet bits Bob at exactly the same time Carla's bullet hits

Bob, thus frustrating but-for causation.(2) The court will most

likely still hold Alice guilty of murder.

3) A large bird flies in the bullet's path. Thus, the bullet misses

Bob completely. Alice is only guilty of attempted murder.

4) The same large bird flies in the bullet's path and deflects the

bullet. The bullet misses Bob but hits Carla. Alice is guilty of

Carla's murder. Although in each of these cases Alice has performed the same action with the same intention, she may be guilty of a number of different crimes: attempting to murder Bob, murdering Bob, or murdering Carla. This is all because of the 'chance' influence of another actor or some act of fate. Perhaps our world is not any safer for Tessie.

But there is a difference between our world and Tessie's world. Tessie did nothing wrong, whereas Alice is someone who chose to be a murderer. The problem is not that Alice is being punished for nothing, but rather that sometimes she is not being punished for what she is--a person who intended to bring about the death of Bob. Faced with fortuities, courts either have allowed luck to have relevance, as in the case of attempts, or have twisted legal doctrines to undermine the role of chance.(3)

In Part I of this Comment, I will discuss what "luck" is and why it has no moral or legal relevance. Part II will address the few cases in which courts have correctly ruled out the role of luck. Parts III and IV will proceed to discuss two instances, causal overdetermination and transferred intent, in which courts have been forced to contort legal concepts in attempting to rule out fortuities. Part V will address an area of the law that still gives credence to chance happenings--attempts. Part VI then will discuss what role, if any, causation, the element principally responsible for the role luck currently plays, should still have in the law. Finally, Part VII will offer possible solutions for excluding the role of chance.

1. WHAT IS LUCK AND How DOES IT INTERFERE WITH OUR IDEA OF CRIMINAL RESPONSIBILITY?

   1. Luck

      Life necessarily includes a degree of luck. We do not have any voice in selecting our athletic strength, our intelligence, the socioeconomic status into which we are born, our gender, or our race. Thomas Nagel has labeled this type of luck "constitutive luck."(4) Luck can also be involved in the results of our actions.(5) Whether we catch the football, miss the train, or hit the target all involve a degree of luck.

      But what do we count as luck in comparison to, say, skill or effort? Social psychology has revealed that we tend to attribute an actor's achievement of a goal (for instance, catching a football) to luck when the locus of control is external and the likelihood of success is minimal or the achievement of the goal is infrequent.(6) That is, if the actor is not in control of his success and the frequency of this type of success is unpredictable, the actor's achievement can be attributed to luck. For example, if the wind picks up the foothall (an external control) and magically delivers it into a player's hands (a very infrequent occurrence), we will decide he was lucky in catching the ball. Clearly, however, the lucky receiver's team would not have to surrender its victory because of this unlikely occurrence. Why, then, does luck pose a problem for the criminal law?

   2. The Moral Argument That Luck Is Irrelevant

      Although this Comment is primarily concerned with the legal argument that luck should not have any place in our criminal justice system, I believe I should take a moment to address the moral argument that I will presuppose--that results do not matter morally. Professor Michael Moore has recently argued to the contrary.(7) His argument, however, contains several flaws.

      1. Is There a Problem of Moral Luck?

         After reviewing unsatisfactory arguments for his position, Moore takes issue with Nagel's argument that there is such a thing as moral luck:(8)

         [T]here is [not] any luck involved in being held more responsible

         for successful wrongdoing than for intended or risked wrongdoing

         that does not materialize. There undoubtedly is some luck

         involved in whether we cause the harms we intend or risk, but

         there will be moral luck only vis-a-vis some moral baseline of the

         normal that places all such luck on the side of the extraordinary.(9) Although I disagree with Nagel based on what Moore denotes as the Kantian position--that wrongdoing does not have any independent moral significance(10)--Moore's method of attacking Nagel's conception of moral luck is still of great interest to this discussion.

         Moore argues that proximate causation is the arbiter of luck.(11) Proximate causation limits liability to only those things caused in the normal routine while absolving defendants of liability in cases where the causal link is too freakish to bear on the actor's responsibility. (12) Moore explores the proximate causation test using four examples of H.L.A. Hart and A.M. Honore: the defendant who culpably throws a lit cigarette into bushes that ignite and (1) burn down a whole forest because of a normal evening breeze, (2) burn down the whole forest because of an unusual gale force wind, (3) burn down the whole forest because a would-be extinguisher catches fire and runs into the forest, and (4) would have burned out except that another culpable defendant pours a gasoline trail from the bushes to the forest.(13) Moore maintains that since in all four cases the defendant was equally out of control of the situation, but liability is imposed only in (1) and (3), control cannot be the baseline by which moral luck is measured--rather it is freakishness of the causal route.(14) In none of the four cases did the actor control what happened after she threw away the lit cigarette, but we only hold her responsible for those actions that seem bizarre and unforeseeable--gale force winds and evildoers who throw gasoline on lit cigarettes.

         Proximate causation, however, may not serve as a baseline for moral blameworthiness in the way that Moore contends. As he does note at one point, the foreseeability test,(15) one of our tests for proximate causation, "seems to be aimed at an actor's culpability." (16) Indeed, isn't this what all proximate causation tests do? They determine how culpable the actor was and blame her for the harm equal to that culpability. She is not blamed for those fortuitous results that she could not choose or control, but that actually occurred.

         Consider, for example, the reckless driver who consciously disregards the risk that by driving at ninety miles per hour she may hit another car. If she hits another car, we find it just and fair to punish her for the risk that she has imposed upon others. If she hits an airplane that was forced to land on the highway, however, and the impact results in an explosion killing three hundred people, we say that this was too freakish, too absurd, to reasonably blame her for causing. We want to punish the reckless driver for the risk she chose to consciously disregard(17) and not for the risk she did not. Proximate causation thus serves to limit her culpability.

         Proximate causation proves particularly important in cases of negligence.(18) Negligence by its very definition deals with an actor who is not aware of what risk she is imposing. Take J.C. Smith's example of the father who has children who love lemonade and who leaves weed killer that looks like lemonade in a lemonade bottle. He did this not to kill his children, but because he is unreasonably unaware of the fact that they might see it and drink it.(19) Using the proximate causation test, we limit the father's culpability to what we as a society feel he should have been aware of and do not punish him for things he would not have foreseen. Thus, if his two children and their two friends drink it, we will punish him for the manslaughter (or negligent homicide) of the four children. If, on the other hand, his children decide to sell this lemonade on the street, and an airplane pilot buys it on her way to work, in turn making the pilot so sick she has to land the plane on the highway, next causing the plane to be hit by a reckless driver, resulting in an explosion which kills three hundred people, we do not want to say the father is responsible for all of those deaths.(20) Proximate causation thus bears on the choice made, or the culpability of the actor for not being aware he was making a choice, but not as an arbiter of what counts as being caused by the actor.

      2. The Argument from Common Experience

         Moore then continues to argue that causing a harm matters morally on both foundationalist(21) and nonfoundationalist(22) Views. Addressing the nonfoundationalist view that Moore endorses, he relies on our common experiences to show that wrongdoing matters for retribution.(23) He argues, in part, that we react differently to those who cause harms,(24) that we feel greater guilt when we cause harms,(25) and that in choosing, we believe that the results of our choices, and not just that we made a...