Legal Commentary

Interview With Lawrence Connell, the Criminal Law Professor Suspended for His Hypotheticals

By Orin Kerr

You can read it here. Perhaps the most interesting section:

Q: Can you give me an example of a hypothetical you might have used in class, to which the students who complained might have been referring? Can you describe the context in which you would have used it?

A: Yes, here is one: The Dean has threatened to fire me if she comes to school one more time and finds that I have parked in her designated parking space. Upset about the possibility of losing both my job and the parking space, I bring my .357 to school, get out of my car, put the .357 into my waistband, walk to the top floor where her office is located, open the door to her office, see her seated at her desk, draw my weapon, aim my weapon, and fire my weapon directly into what I believe to be her head. To my surprise, it?s not the Dean at all, but an ingeniously painted pumpkin ? a pumpkin that has been intricately painted to look like the Dean. Dick Tracy rushes in and immediately wrestles me to the ground. I am charged with the attempted murder of the Dean.

The hypothetical raises various issues about attempted crimes that might entail discussion that spans more than one class. Some of the classroom discussion in the first, for example, will address the two basic philosophical problems of why we punish attempts, which are failed efforts at crime, and why we punish attempts less than successfully completed crimes.

A retributive argument, on the one hand, is that the attemptor has demonstrated his moral culpability by his bad conduct, and the degree of his punishment should not depend on a fortuitous turn of luck. On the other hand, a retributivist might argue that punishment in the absence of harm is unjust. For retributive purposes, has Connell demonstrated his moral culpability by shooting what he believes to be the Dean? Or does the fact that he merely destroyed a pumpkin suggest that his punishment would be unjust?

A utilitarian argument is that the attemptor?s actions demonstrate his dangerousness. His dangerousness having been established, the attemptor needs to be incapacitated or else he will try again until he succeeds. On the other hand, a utilitarian might argue that imposing punishment for conduct short of causing actual harm will cloud the otherwise bright line between conduct that is punishable and not punishable. Certainty of punishment enhances deterrence, while reducing certainty detracts from it. Should Connell be punished in order to prevent him from completing his intended result? If Connell?s shooting a pumpkin is considered attempted murder, then where do we draw the line?

Attempt law also raises questions about the role of law enforcement in a free society. We want police to capture the people who cause harm, yet we also want police to protect us before harm can occur. On the one hand, a free society does not want punish people who only have bad thoughts or criminal tendencies. On the other hand, we do not want the police to wait so long to intervene that the risk of harm may become inevitable. If we allow law enforcement to intervene before harm is committed, where do we draw the line between conduct that is punishable and conduct that is not?.

Reading over the hypo, I think the conclusion is obvious: Professor Connell has a deep hatred of pumpkins.

Full post as published by The Volokh Conspiracy on February 18, 2011 (boomark / email).