Determining Liability When a Crime Leads to a Benefit
I. Moral Luck
On a hot day in July 2016, a group of young men on Chicago’s West Side broke into a pickup truck and stole a laptop. Unbeknownst to the thieves, there was a dog in the car that might have died in the heat had they not broken the window. The car was parked for about an hour before the owner’s return, long enough to cause heatstroke in pets according to the American Veterinary Medical Association.1
These alleged thieves did a good thing (saving the dog’s life) without meaning to do so, which brings us to the concept of “moral luck.” “Moral luck” is a term of recent vintage, but it describes an ancient philosophical concept. The Stanford Philosophy Encyclopaedia2 defines moral luck in the following terms: “Moral luck occurs when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control.”
To better understand the concept of moral luck, let us consider and contrast two scenarios.
Scenario A: A driver is speeding recklessly down the road and narrowly misses hitting a pedestrian, who managed to dart out of harm’s way at the last second.
Scenario B: A driver is speeding recklessly down the road, no more recklessly than the driver in Scenario A, and hits a pedestrian.
We have here two drivers. They are equally blameworthy for driving as recklessly as they did. The only difference is that the pedestrian in Scenario A was nimble enough to avoid being hit, whereas the pedestrian in Scenario B was not so lucky. But despite their identical moral culpability, the driver in Scenario B will be punished far more heavily than the driver in Scenario A.
People intuitively sense that this should be the case—after all, driver B hit someone!—but why? Why does it matter that one scenario had a victim while the other did not? The “moral luck” experienced by the victimless driver was just that—luck. Why should he be treated less harshly by the law simply because of circumstances beyond his control?
In cases of this sort, society has chosen to consider the consequences of actions. We look at what you did (hit a pedestrian) as much as what you meant to do. As Judge Richard Posner, one of the most prolific living judges, explained, “The community attaches moral significance to consequences as well as to states of mind . . . [this] reflects a moral intuition that is deeply rooted in the traditions of the American people (and probably every other people as well).”3
This can then raise a question regarding our case in Chicago: Should the thieves in the news story get credit for freeing the dog even though they had no intention to do so? In law, will their unintended benevolence minimize their criminal or civil liability? Would it be a mitigating factor in sentencing?
It is possible to analyze both criminal law and civil law through an intention-or-consequences lens. Another way of describing those lenses would be action-or-results. Do we look at the person’s action (driven by intentions), or at the results of the person’s action?
II. Talmudic Law
What might the Talmud say about the Chicago thieves?
The Talmud brings a tidy example of this issue concerning the laws of Shabbat. It is forbidden for a Jew to fish on Shabbat. Obviously, as in any case of life-and-death, it is permitted to lower a net into the water in order to save a child even if this means that the actor will raise fish as well. And we thus arrive at a Talmudic dispute between Rabah and Rava.
Say a child has fallen into the sea on Shabbat but a particular fisherman was unaware of this. He spreads his net to catch fish . . . but in addition to catching fish he also saves the child. Rabah says he is not liable, but Rava says he is liable.
Rabah says he is not liable because we decide the matter by his actual deed. Rava says he is liable because we decide the matter by his intention.4
This is a case of pure luck. The fellow simply wanted to catch a fish for dinner, and the next thing he knows, he’s saved a child’s life.
Rava says that the prohibition of fishing on Shabbat is suspended only if you intend to save a life, because to Rava, intentions are paramount. It is true that the fisherman saved a child, but he also fished, and fishing was what he intended to do; so the fishing prevails. According to Rava, the actor is guilty of desecrating Shabbat and is liable to bring a sacrifice of atonement,5 because that’s what he intended to do. He gets no credit for rescuing the child. We can assume that this line of reasoning would lead to the conclusion that the thieves should get no credit for saving the dog’s life when they broke into the car.
But Rabah says that the prohibition of fishing on Shabbat is suspended if you intend to save a life or if you do in fact save a life. To Rabah, outcome is paramount. It is true that the fisherman caught fish, but the prohibition is overlooked when a life is saved. We can assume that this line of reasoning would say that the thieves should indeed get credit for rescuing the dog when they broke into the car.
Rambam, in his codification of Jewish law, agrees with Rabah: “If a fisherman lowers his net to catch fish, and he happens to also save a child, he is not liable—even if he did not know that the child had fallen into the water.”6
III. Criminal Law
A. Prosecution and Sentencing
How may the criminal justice system deal with our Chicago case? Would it look at the overall results of the situation or just the crime? The short answer is (probably) the crime (and not the positive outcome), and what follows is a brief explanation.
It is a tenet of our legal system that crimes are a wrong not against the individual, but against society as a whole. This is what distinguishes a person who steals from a person who breaches a contract. Thus, criminals are prosecuted not by the person who was wronged, but by the state on behalf of the people. That’s why in the U.S., criminal cases are formulated as “The People” or “The State” v. Smith and the like, and in Commonwealth countries it will be “The Queen” (representing society) v. Smith.
The Crown Prosecution Service, which prosecutes crimes in the United Kingdom, sums up this idea: “The Crown Prosecution Service does not act for victims or the families of victims in the same way as solicitors act for their clients. We act on behalf of the public and not just in the interests of any particular individual.”7 Or, as the American Bar Association puts it: “The idea that the criminal law, unlike other branches of the law such as contracts and property, is designed to vindicate public rather than private interests is now firmly established.”8
A salient example of this concept is a scenario in which one would think there is no victim because the “victim” consented to the perpetrator’s actions. English case law shows that judges have long struggled with the question of whether a person can consent to assault.
When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds.9
Given that a criminal case is prosecuted on behalf of the community as a whole, it should lead us to give less weight to the positive consequences of a criminally intended act. The unintended positive consequences of a crime impact the individual victim, whether it is the person who was assaulted or robbed and the like. However, the state’s prosecution of a crime is not (primarily) to secure retribution for the victim, but for the betterment of society at large. In other words, criminal law seeks to sanction people for reasons beyond the isolated crime—and an unintended positive outcome to the individual has little relevance for the broader society.
At the same time, a prosecutor would have the authority to refrain from bringing charges or he may choose to bring lesser charges, considering the positive outcome:
Prosecutorial discretion is a central component of the federal criminal justice system. Prosecutors decide which cases to pursue and plea bargains to accept, determining the fates of the vast majority of criminal defendants who choose not to stand trial. Prosecutors’ decisions are generally not, however, subject to judicial review.10
Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”11
Assuming the prosecutor does bring charges against these young men and they were found guilty, would the positive outcome have any impact on sentencing? To answer this we need to address the purposes of punishing an offender:
In general, there are four justifications for criminal sanctions: deterrence, incapacitation, rehabilitation, and just deserts. Since the American Founding, the influence of the four justifications of criminal punishment has varied. While closely aligned with utilitarianism, the deterrence and incapacitation models seek to reduce future crime. Deterrence seeks to make crime more costly, so less crime will occur. Incapacitation does not try to change behavior through raising costs; it simply removes the offender from society. The criminal behind prison bars cannot harm those of us on the outside. At its modern extreme, the rehabilitative model assumes crime is determined by social forces and not the decisions of criminals. The just deserts model asserts that punishments should be commensurate with the moral gravity of offenses.12
Given the four aims of sentencing, should criminal law focus more on intention, consequences or neither? Should dumb luck (rescuing a dog by breaking into a car) help reduce a person’s sentence?
From the perspective of retribution alone, one could make a good argument that sentencing should be lenient considering the offender’s dumb luck. However, the other three aims would lead to an opposite result: In these aims, the criminal sentencing goals are to deter people who are considering breaking into cars, to incapacitate those who have shown a tendency to break into cars, and to rehabilitate those who are of a mind to break into cars. Dumb luck should not help the criminal under these theories.
B. Victim Impact Statements
Our analysis might lead one to conclude that criminal law focuses primarily on intentions and minimally on the consequences of a criminal act. However, this not really the case as consequences are taken into account in many ways. Earlier, we saw how the law treats two acts of similar recklessness differently because of the differing results. And another good example of this is the use of victim impact statements.
Victim impact statements are written or oral information from crime victims, in their own words, about how a crime has affected them. All 50 states allow victim impact statements at some phase of the sentencing process. Most states permit them at parole hearings, and victim impact information is generally included in the pre-sentencing report presented to the judge.
Purpose: The purpose of victim impact statements is to allow crime victims, during the decision-making process on sentencing or parole, to describe to the court or parole board the impact of the crime. A judge may use information from these statements to help determine an offender’s sentence; a parole board may use such information to help decide whether to grant a parole and what conditions to impose in releasing an offender.13
Victim impact statements were once barred by the U.S. Supreme Court because they were found to be emotionally charged testimony that would divert the jury’s attention from the defendant’s actions. The court held that “the victim impact statements information in question may be wholly unrelated to the blameworthiness of a particular defendant, and may cause the sentencing decision to turn on irrelevant factors such as the degree to which the victim’s family is willing and able to articulate its grief, or the relative worth of the victim’s character. Thus, the evidence in question could improperly divert the jury’s attention away from the defendant. Moreover, it would be difficult, if not impossible, to provide a fair opportunity to rebut such evidence without shifting the focus of the sentencing hearing away from the defendant.”14
However, just a few years after it handed down its decision in Booth v. Maryland, the Supreme Court changed its mind. In a 5-to-4 decision, the U.S. Supreme Court ruled in Payne v. Tennessee, 501 U.S. 808 (1991) that crime victims’ family members can deliver victim impact statements at capital sentencing hearings, reversing its own decision of just two years earlier in Booth v. Maryland. The Booth decision had barred the statements, viewing them as emotionally charged testimony that would divert the jury’s attention from the defendant’s responsibility for the crime and focus it on the character and identity of the victim. The Payne decision not only dismissed this concern, but found that the statements were valuable precisely because they remind sentencing juries and judges “that the victim is an individual whose death represents a unique loss to society and in particular to his family.” Ultimately, the Supreme Court rejected the argument that the statements would influence sentencing based on irrelevant factors, such as the victim’s attractiveness, respectability, social class, or race.
How does this bear on our intention-vs.-consequences discussion? It would seem that victim impact statements allow a shift from the intention of the crime to the ultimate consequences of the crime. Although the judicial debate in the Booth and Payne decisions did not frame the issue that way, it is easy to conceive of a victim impact statement scenario where it becomes apparent that we are looking more to the consequences than the criminal intent that ultimately triggered those consequences.
Let us compare-and-contrast two scenarios. In both scenarios, the defendant shoots his victim dead. In Scenario A, the victim was an 18-year old straight-A student, in a large family, well-liked by his peers, admired by his teachers, and about to enter college. He had a bustling social life, busy extracurricular schedule, and was going to be part of the basketball team. In that case a victim impact statement would detail the devastation that the shooting wrought on the young man’s family and friends, and how it cut off his promising future. In Scenario B, the victim was a chronically unemployed 60-year-old man with a drug problem, an unsociable hermit who had little family and few friends. Any victim impact statement would be far less heartbreaking and would probably elicit much less sympathy than in Scenario A.
Put differently, the downstream consequences of the defendant’s criminal behavior in Scenario A were far more grievous than in Scenario B—and because victim impact statements are allowed, the defendant may receive a harsher sentence for the very same crime.
C. Considering Intent in Crimes
While Victim Impact Statements seem to push criminal law toward consequences, another area of law seems to focus on intent. At present, most states have enacted hate crime penalty-enhancement laws. Under these laws, “a perpetrator can face more severe penalties if the prosecutor can demonstrate, beyond a reasonable doubt, for the trier of fact that the victim was intentionally targeted on basis of his personal characteristics because of the perpetrator’s bias against the victim. Almost every state penalty-enhancement hate crime law explicitly includes crimes directed against an individual on the basis of race, religion, and national origin/ethnicity.”15
This means that there can be a situation where two individuals commit the same exact crime, but in one an offender will be punished in a harsher manner even though the outcomes of both crimes were the same. What the law is doing here is looking not only at the consequences of the criminal’s act, but at the criminal’s intention and punishing the criminal more severely due to his intention.
We see that, at least in America, there are crimes where we focus heavily on the person’s intention. That summation may sound a little too much like a “thought crime,” which has been the criticism leveled at hate crime legislation generally. As syndicated columnist Richard Cohen put it:
Almost as bad as hate crimes themselves is the designation. It is a little piece of totalitarian nonsense, a way for prosecutors to punish miscreants for their thoughts or speech, both of which used to be protected by the Constitution (I am an originalist in this regard). It is not the criminal act alone that matters anymore but the belief that might have triggered the act. For this, you can get an extra five years or so in the clink.16
IV. Civil Law
We’ve taken a closer look at the ways intention and consequence are treated in criminal law. If there’s one thing we can take away from that discussion, it is that there is no black letter law approach to favoring either intention or consequences. There are strong policy considerations in favor of focusing on one or the other.
Let us now look at civil law.
A significant branch of civil law is tort law. Torts means wrongs done by the defendant to the plaintiff. There are many types of torts (trespass to land, for example), but the one we’ll focus our discussion on here is the tort of negligence.
The golden rule of negligence is that “damage is the gist of negligence.” Damages describes what harm the defendant suffered. What this rule is saying is that you can’t sue someone (for negligence) unless that person caused you harm in some way.17 18
To put it in academic jargon, tort law:
. . . is a law that empowers victims to respond to wrongdoers whose wrongs have injured them. Absent an ‘injuring,’ there is no victim to complain of the conduct, and hence no basis for a tort suit or tort liability. To say the same thing affirmatively, tort law requires that fortuities as to realization be considered in assessing liability precisely because tort law is a victim-based law of wrongs rather than a community-based or society-based law of wrongs.19
The money which a defendant will be ordered to pay a plaintiff is called damages. In a tort case, the kind of harm for which the victim will be compensated can be broadly categorized in two ways: special damages (economic or out-of-pocket losses) and general damages (noneconomic losses).20 21 Special damages are those which can be calculated precisely, such as the medical expenses incurred from the injury that the defendant caused. General damages are harder to assess, such as compensation for pain and suffering.22
This brings us to the following question regarding our case: The vandals broke a person’s car window. But, when they did so, the dog that had been forgotten in the back seat and was near death was saved. If the car owner were to sue the vandals who broke the window and won, what should the damages be? The cost of repairing the window? Or perhaps the costs of repairing the window, minus the value of the dog, which would have died had the defendant not broken the window?
Let us attempt to answer this question by analyzing the concept of “reasonable foreseeability.” When A sues B for something B did that caused harm to A, the suit will be successful only if it is proven that it was reasonably foreseeable to B that B’s actions would cause that harm to A. Just because B’s actions caused harm to A does not mean that B will always be liable. The injury or damage must be foreseeable.
An example: A ship has pulled into the harbor. It begins leaking oil into the harbor. In normal circumstances, that oil should not have caused any damage, as it was nonflammable. But elsewhere at the wharf, metal workers were welding. Sparks from their acetylene torches fell onto bits of cotton waste that had made its way into the water. This fluke allowed the cotton to ignite, which then in turn set the oil on fire. This resulted in damage to several ships docked at the wharf. Although the leaking oil caused the damage (if not for the oil, nothing would have happened), the leaking ship was not liable, because the damage was not reasonably foreseeable.23
How does the concept of reasonable foreseeability impact our intention-vs.-consequences discussion? The simple response is that the positive outcome was not foreseeable to the vandals and therefore it should not be a factor for minimizing civil liability in our case.
But the analysis might change when we look at another well-known rule—the eggshell skull rule. If a person punches another person who is a lot more harmed than an average person because he has an eggshell-thin skull, the assailant is liable for all the damages even though any other victim’s injuries would have been much less. The rule is that “we take the victim as we find him [or her].” A common example is a hemophiliac who bleeds to death after the defendant stabbed him, although nearly any other person would have survived easily.
In the context of torts, the eggshell skull rule is a counterbalance to the requirement of reasonable foreseeability. The leading case in this area is Smith v. Leech Brain. An employee suffered a burn from a splash of molten lead while he was at work, which triggered cancer from which he eventually died. The employee had a predisposition to cancer. The employer admitted that it had negligently caused the initial injury from the splash of molten lead, but argued that it should not be liable (in negligence) for the employee’s ultimate death because it was not reasonably foreseeable.
The court rejected this argument. We must take the victim as we find the victim, no matter whether he or she has an eggshell-thin skull or a predisposition to cancer or hemophilia.24
Turning to our case: If we can say (to the defendant’s detriment) that the defendant is civilly liable for the consequences of his or her actions, even beyond those that are reasonably foreseeable, why can we not also say (to the defendant’s advantage) that a court trying a defendant for theft will take into account the fact that a dog was saved when that defendant broke into the car? Why shouldn’t good outcomes to bad behavior be rewarded in a civil context?
The jurisprudence behind many of the laws cited in this article may seem inconsistent when judging the matter through the lenses of intention and outcome. However, law is not only driven by abstract principles but also by public policy factors that, among other things, seek to reduce crime, compensate victims, and ensure societal benefits and overall gains. Ultimately, judging by these factors we see that unintended positive consequences would most probably not be taken into account to mitigate criminal or civil liability, while unintended negative consequences would be considered in rendering the punishment of someone who disturbs the peace.
Written for The Dilemma: Modern Conundrums, Talmudic Debates, Your Solutions
2 Nelkin, Dana K., “Moral Luck,” The Stanford Encyclopedia of Philosophy (Winter 2013 Edition), Edward N. Zalta (ed.) (http://tinyurl.com/3mecsah).
3 Milner v. Apfel, 148 F. 3d 812, 815 (7th Cir. 1998).
4 Menachot 64 a
5 See Sefat Emet, ad loc.
6 Rambam, Hilchot Shabbat 2:15. This law was applied in actual civil cases. See Rabbi Chaim Segalowitz, Responsa Mekor Chaim 33; and Rabbi Shlomo Cohen, Responsa Binyan Shlomo, vol. II, Choshen Mishpat 5.
7 “The Decision to Charge,” http://tinyurl.com/hmetnxu.
8 ABA Standards for Criminal Justice, Standard 3–2.1 cmt. (1979).
9 R v. Coney (1882) 8 QB 534.
10 Wayne R. LaFave, et al., Criminal Procedure §§1.9(c) and 13.2(g) (3d ed. 2007).
11 United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (citations omitted).
12 The Heritage Foundation, Theories of Punishment and Mandatory Minimum Sentences, http://tinyurl.com/zd4s4pb. See also United States v. Booker, 543 U.S. 220, 268-270 (2005); Title 18 U. S. C. A. § 3553(a) (main ed. and Supp. 2004).
13 Victim Impact Statements http://tinyurl.com/zd6kghd.
14 Booth v. Maryland 482 U.S. 496, 505-508 (1987).
15 See, “Hate Crime Laws — The ADL Approach,” page 4. http://tinyurl.com/hl4xo4y.
16 Richard Cohen, “Op-Ed: Hate-Crime Laws Turn Thoughts into Crimes,” The Washington Post, October 19, 2010. http://tinyurl.com/3xsbp5h.
17 See, e.g., Comstock v. Wilson, 257 NY 231, 235 (N.Y. App. 1931).
18 There are some torts (such as trespass) that are actionable per se: this means that you can sue a person for the very fact that they committed the tort, even if they haven’t caused you any harm. For example, imagine that someone constantly walks through your land as a shortcut. It is very likely that his action causes you no harm (meaning, legally there is no damage) but you want him to stop. Because trespass is actionable per se, you can sue him. The remedy might be an injunction restraining the person from walking through your land, or a nominal payment the trespasser must make which serves to acknowledge that it is your land and he had no right to walk through it.
This is not the case for the tort of negligence. An action in negligence can succeed only if there was damage.
19 John C. P. Goldberg & Benjamin C. Zipursky, “Tort Law and Moral Luck,” 92 Cornell L. Rev. 1123, 1135 (2007).
20 We will not discuss punitive damages here.
21 In Halachah: tzar, ripui, and boishes would all be called “damages.”
22 See, e.g., Kenton v. Hyatt Hotels, 693 S.W.2d 83 (Mo. 1985).
23 See: Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd. or “Wagon Mound (No. 1)”  UKPC 2.
24 Smith v. Leech Brain & Co.  2 QB 405.