Objectivist vs. Subjectivist Views of Criminality: A Study in the Role of Social Science in Criminal Law Theory

The authors use social science methodology to determine whether a doctrinal shift-from an objectivist view of criminality in the common law to a subjectivist view in modern criminal codes-is consistent with lay intuitions of the principles of justice. Commentators have suggested that lay perceptions of criminality have shifted in a way reflected in the doctrinal change, but the study results suggest a more nuanced conclusion: that the modern lay view agrees with the subjectivist view of modern codes in defining the minimum requirements of criminality, but prefers the common law's objectivist view of grading the punishment deserved. The authors argue that there is practical value in having criminal law track shared community intuitions of the proper rules for assigning liability and punishment. For that reason, the study results support the often criticized subjectivist view of modern codes in setting the minimum requirements of liability, but disapprove of the modern codes' shift away from the common law's objectivist view of grading. A central goal of criminal law theory is to understand why criminal law rules develop and exist as they do. That understanding allows us better to criticize or support the rules, to determine whether the rules serve their intended purposes, and to debate the wisdom of those purposes openly. We argue in this article that social science, properly used, can be an important resource for criminal law theorists, in both testing and suggesting explanatory theories for criminal law. We also show how it can provide essential data for the construction and application of theories of criminal law. The most beckoning explanatory puzzle in criminal law theory concerns the variety of rule changes between the common law and modem criminal codes. Of central importance are those that concern the central questions of the role of culpable state of mind and of harm in assessing liability and punishment. Code commentaries and legislative histories often give explanations for specific * Paul H. Robinson is Professor of Law at Northwestern University. John M. Darley is the Dorman T. Warren Professor of Psychology at Princeton University. Professor Robinson wishes to acknowledge the support of the Stanford Clinton, Sr., Research Professorship, and the contributions of participants at a faculty workshop at Northwestern University School of Law. 410 Oxford Journal of Legal Studies VOL. 18 rule changes, some explanations being more enlightening than others. What criminal law theorists have sought is, first, the identification of a discernible pattern in the changes, and, second, an explanation for that pattern of change. Such an understanding can help us to refine modern rules and their application, as well as to stimulate debate on the propriety of the shift from the common law rules. It is on this puzzle that we bring to bear the investigative tools of research psychology. As the reader will see, those tools advance the inquiry in ways that criminal law theorists on their own could not. Part 1 of the article offers a traditional theoretical analysis to suggest that there is a pattern in the rule changes between common law and modern codes. Drawing from the existing scholarly literature, it also describes one theory for the doctrinal shifts, what is called a shift from the 'traditionalists' view to that· of the 'modernists' view. We also offer our own variation on this theory of doctrinal shift, a shift from what we call an objectivist view of criminality to a subjectivist view. Social science, we argue, can test theories like these. The article sets out a series of specific testable empirical questions that are central to the theoretical debate. Part 2 describes the social science tools to be used in the testing. In this case, the primary tool is termed 'scenario research' and the reasons for using it are given. Part 3 applies the social science test instruments described in Part 2 to the legal theories developed in Part 1, in order to identify those test results that indicate that a test subject is taking an objectivist view of criminality and those that indicate a test subject is taking a subjectivist view. Part 4 reports the results of the tests and their implications, and answers the questions presented in Part 1. A concluding section offers general observations about the analytic exercise and its implication for criminal law reform and future social science research. I. Theories for a Pattern of Criminalization Differences Between Common Law and Modern Codes Many changes from common law doctrine to modern criminal codes are easily explainable as responses to changing conditions. As societal interdependencies grew, so did the variety of ways in which a person could harm society, its institutions, or other persons. Thus, new offences were created and old offences altered to take account of new harms. For example, most modern criminal codes contain white collar business crimes and special organized crime offences that did not exist at common law. Other modem criminal code changes are simply attempts to make criminal law more clear and more comprehensive, as the legality principle demands. Thus, modern codes typically define commonly used terms, limit the number of culpability levels used in the definition of offences, carefully defining each, and codify a comprehensive set of defences. The changes of greatest interest to criminal law theorists, however, have been those that suggest some kind of paradigm shift in defining the core of what constitutes AUTUMN 1998 Objectivist vs Subjectivist Vzews of Criminality 411 'criminality', that is, changes that suggest that the foundational substance of the law has changed not just its form or application. A. Common Law versus Modern Codes: Doctrinal Shifts Consider the different views of criminalization that might be suggested by the following comparisons. The common law recognized an unconvictable perpetrator defence to complicity, under which the accomplice escaped liability if the perpetrator was unconvictable (because the perpetrator lacked the culpability required for the offence, for example). Modem codes typically reject such an unconvictable perpetrator defence, arguing that an accomplice's liability ought to depend upon what the accomplice did and the accomplice's state of mind, and that the perpetrator's defence ought not to alter the accomplice's liability. 2 In the context of conspiracy, the common law defined the agreement requirement as two or more persons agreeing. Not only did the defendant have to agree with another, the other person genuinely had to agree back. Agreeing with an undercover agent, for example, did not constitute an adequate agreement for conspiracy liability. Modem codes typically drop this 'bilateral' agreement requirement for conspiracy, and simply require that the actor have agreed with another, termed a 'unilateral' agreement requirement. In the context of attempts, the common law permitted a defence if an actor attempted an offence that, unknown to the actor, was impossible to complete 1 In Regina v RU:hards [1974) 1 QB 776 (CA, Crim. Div.), defendant wife had hired defendant perpetrators to beat her husband 'bad enough to put him in the hospital for a month'. Ibid at 778. After beating the husband, but failing to inflict the type of serious bodily harm the wife had requested, the perpetrators were convicted of unlawful wounding; the wife as accomplice was, in tum, convicted of wounding with intent to do grievous bodily harm. On appeal, her conviction was overturned because the only offence committed by the perpetrators was unlawful wounding, and an accomplice, held the court, 'cannot be guilty of a graver offence than that in fact which was committed'. Ibid at 780. 2 See, eg Model Penal Code s. 2.06(7): An accomplice may be convicted on proof of the commission of the offence and of his complicity therein, though the person claimed to have committed the offence has not be prosecuted or convicted or has been convicted of a different offence or degree of offence or has an immunity to prosecution or conviction or has been acquitted. See also Regina v Cogan & Leak [1976) 1 QB 217 (CA, Crim. Div.), in which Leak induced Cogan to rape his (Leak's) wife. Perpetrator Cogan received a defence for his mistake as to the wife's lack of consent. Leak argued that he could not be convicted of complicity in the rape as Cogan had not been found guilty due to his mistake. In rejecting this rationale, the court noted that 'the wife had been raped. Cogan had sexual intercourse with her without her consent. The fact that Cogan was innocent of rape because he believed that she was consenting does not affect the position that she was raped.' Ibid at 223. 3 See, eg Arr:hbold v State 397 NE2d 1071 (lnd App 1979), in which the court held that '[t)he offence of conspiracy does not occur, a crime is not committed, until two or more persons form the intent to commit a felony. The joint intent is the proscribed conduct.' Ibid at 1073 (emphasis in original). 4 See, eg Model Penal Codes. 5.03(l)(a) and(b). The unilateral approach makes it immaterial to the guilt of a conspirator whose culpability has been established that the person or all of the persons with whom he conspired have not been or cannot be convicted. Traditional law has frequently held otherwise, reasoning from the definition of conspiracy as an agreement between two or more persons that there must be at least two guilty conspirators or none. Model Penal Codes. 5.03 comment 398-402 (1985). See also People v Schwimmer 66 AD2d 91, 411 NYS2d 922 (1978), aff'd, 47 NY2d 1004, 420 NYS2d 218, 394 NE2d 288 (1979) (the court held that since the legislature had adopted a unilateral agreement requirement, the defendant's agreement alone was sufficient to support conspiracy to steal diamonds, although the co-conspirators were undercover police officers). 412 Oxford Journal of Legal Studies VOL. 18 under the circumstances as they actually existed. Thus, the actor who purchased goods believing them to be stolen, could not be held liable for an attempt to receive stolen goods where the goods purchased were not, in fact, stolen. 5 Modern codes, in contrast, reject an impossibility defence to all forms of inchoate liability. An actor's liability is to be determined from the point of view of the actor, under the circumstances as the actor believed them to be. 6 If the actor believes that the goods are stolen, he can be held liable for an attempt to purchase stolen goods. Also in the context of attempts, the common law adopted a variety of tests for determining whether an actor's conduct had moved from mere preparation to criminal attempt. The tests had in common their focus on how close the actor had come (his or her 'proximity') to completing the offence. 7 Modern codes, following the Model Penal Code, look instead at how far the actor has gone from the start of the offence conduct. Once a 'substantial step' is taken, the actor has shown a willingness to act upon the actor's intention and, therefore, the actor's conduct is deemed adequate for a criminal attempt. 8 Asking a secretary to type a letter that is the first of several steps in an elaborate fraud scheme, for example, would not constitute an attempt at common law, but could constitute a 'substantial step' sufficient for liability under modern codes. One may note from these examples that the common law is consistent in imposing liability only in the instance where there actually (objectively) exists the danger of the offence harm or evil: by requiring an attempt possible of completion and, in the context of conspiracy, a true agreement between two conspirators, for instance. One might term this an objectivist view of criminality, which sees the gravamen of an offence as its objective harm or evil. It focuses upon whether the actor's conduct came close to bringing about the harm or evil of the substantive offence. Where the potential for the harm or evil exists only in the actor's mind, as is the case in impossible attempts, liability is inappropriate, hence the common law rule giving a defence for instances of legal impossibility. Modern codes, in contrast, are willing to impose liability when the actor believes that he or she is committing or participating in a criminal offence. Under what might be called this subjectivist view of criminality, the focus is not on the harm or evil of the offence but upon the actor's subjective culpability in attempting to bring it about. Coming close to a substantive harm or evil is not required. The question is whether the actor has gone far enough to demonstrate that his or her intention is fully formed and resolute, hence the requirement of a 5 See, eg People v Jaffe 185 NY 497, 78 NE 169 (1906), in which impossibility was held to be a defence to the receipt of stolen property where the goods had been 'wholly within [the owners'] control [at the time of sale] and [were] offered to the defendant by their authority'. Ibid at 499, 78 NEat 169. 6 See, eg Model Penal Codes. 5.01(1)(a). 7 The common law proximity tests include the most-often encountered 'dangerous proximity test', which requires a consideration of (1) the gravity of the offence intended, (2) the nearness of the act to completion of the crime, and (3) the probability that the conduct will result in the offence intended. See, eg Commonwealth v Peaslee 177 Mass 267, 59 NE 55 (1901) ('a mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote', ibid at 273, 59 NEat 57). 8 See, eg Model Penal Codes. 5.01 (1)(c). AUTUMN 1998 Objectivist vs Subjectivist Views of Criminality 413 'substantial step.' Similarly, while the actor's attempt may be impossible, it nonetheless may be adequate to show the actor's willingness to commit the offence. The same common law-modem code conflict, between an objectivist and subjectivist view of criminality, can be seen in determining the importance that attaches to the close risk or actual occurrence of the offence. A logical extension of the subjectivist view of criminality suggests that there ought to be little or no significance given to whether the harm or evil of an offence actually occurs. If the primary focus of liability is the actor's subjective culpability, the important facts are what the actor has done in furtherance and as expression of that culpability (and the level of the actor's culpable state of mind at the time of the offence). Whether the harm or evil intended or risked actually occurs does not alter the actor's subjective culpability. The objectivist view, in contrast, would insist on greater punishment where the harm or evil occurs, for it is the gravamen of the offence. While the objectivist might be persuaded to impose liability on the actor who comes close to bringing about the harm or evil, it seems clear that the objectivist would think that still greater liability is due where the harm or evil in fact occurs. Thus the subjectivist-objectivist perspectives generate important differences in the criminal rules governing grading of offences. As it did with regard to minimum requirements for liability, the Model Penal Code generally takes a subjectivist view of criminality in grading. With a few exceptions, the Code's view is that the actual occurrence of a harm and evil ought not be significant. The actor's liability ought to depend only on the actor's culpable state of mind manifested in conduct. The most important provision implementing this view with respect to grading is Model Penal Codes. 5.05(1), which grades inchoate offences as follows: Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offence which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree.• Thus, except for attempted murder and attempted aggravated rape, all other attempts, for example, attempted arson, attempted sexual assault, are graded the same as the completed offence. The traditional view, reflected in the objectivist common law, was to punish the inchoate offence less than the completed offence. 10 Similarly reflecting the Model Penal Code's subjectivist grading philosophy is the Code's complicity provision, which treats unsuccessful attempts to aid a 9 Model Penal Code s. 5.05(1). Note that, while the Model Penal Code drafters adopt a subjective view of grading in the first sentence of this provision, they seem unwilling to take that view to its logical conclusion. In the last sentence, they make clear that attempted murder will get a reduction in grade from murder under the same circumstances. 10 See, eg 2 James Fitzjames Stephens, A History of the Criminal Law of England (1883) at 224 {attempt to commit any felony was misdemeanour). 414 Oxford Journal of Legal Studies VOL. 18 perpetrator as complicity, for which full substantive liability is imposed. 11 The Code's provision holds an actor as an accomplice if he 'aids or agrees or attempts to aid' in the commission of an offence. 12 Thus, an unfulfilled agreement or unsuccessful attempt to assist or encourage is graded the same as the substantive offence. The actor who agrees to stand watch for a perpetrator bent on arson is liable for arson even if he gets the date confused and does not show up. In other words, inchoate complicity is punished not as inchoate liability but as full substantive liability. At common law, an unsuccessful attempt to aid would not constitute complicity in the substantive offence. 13 B. A Theory for the Doctrinal Shifts: Objectivist versus Subjectivist Vtews of Criminality To oversimplify, the distinction between what we have called an 'objectivist' and a 'subjectivist' view of criminality might be stated this way: The objectivist view maintains that the occurrence of the harm or evil defined by the offence is highly relevant; the subjectivist view maintains that such harm or evil is irrelevant; only the actor's culpable state of mind regarding the occurrence of the harm or evil is important. 14 The labels tend to overstate a rather subtle distinction. The 'objectivist' or 'harmful consequences' view is not so objective as to require that the harm or evil of the offence actually occur in order to impose liability. The objectivist imposes liability for inchoate conduct, as, for example, when the actor comes close to bringing about a real offence harm or evil. 15 The 'subjectivist' view, in tum, is not so subjective as to only require a culpable state of mind. An intention alone is insufficient for liability; some act is required to prove the actor's willingness to act upon, to externalize, his or her subjective culpability. 16 And, while the occurrence of the harm or evil may not be important to the subjectivist, the nature of the harm or evil intended or risked is important to determine the degree of the actor's culpability. Intending to cause death is more serious. than intending to rob someone. 11 See Model Penal Code s. 2.06(1), (2), (3)(a)(ii). 12 Model Penal Code s. 2.06(3)(a)(ii) (emphasis added). 13 Stephens, above n 10 at 234--7. 14 Other writers have observed a similar distinction, although they would not necessarily characterize it as we do here. See, eg Lawrence Crocker, 'Justice in Criminal liability: Decriminalizing Hannless Attempts' 53 Ohio St L Rev 1057 (1992) (comparing 'subjective' and 'objective' 'theories of criminal liability'); George P. Fletcher, Rethinking Criminal Law (1978) at 135-44, 389, 472-83 (referring to three 'patterns of liability': 'subjective', 'harmful consequences', and 'manifest'). 15 Generally, a 'hann' or a 'harmful result' is used in this article to refer to a tangible or intangible consequence of conduct, such as those consequences described in the result elements of offence definitions. 'Evil' conduct is used to refer to conduct that is objectionable and prohibited for its own sake rather than because it brings about a prohibited harmful consequence. Taken together, the 'hann and evil' of crimes is meant to include all prohibitions of the criminal law. The phrase 'hann and evil' is sometimes used in this article as shorthand for 'the occurrence of hann and evil'. 16 For further discussion of this function of the act requirement, see Paul H. Robinson, 'Should the Criminal Law Abandon the Actus Reus-Mens Rea Distinction?' in S. Shute, J. Gardner and J. Horder (eds), Criminal Law: Action, Value and Struccure (Oxford, 1993). AUTUMN 1998 Objectivist vs Subjectivist Vzews of Criminality 415 At least one writer has noted a similar distinction between the common law and modem codes and labeled the opposing views as 'traditionalist' and 'modernist'. 17 Common law is said to reflect the objectivist view of the 'traditionalists', where the gravamen of an offence is its resulting harm or evil. The 'modernist' subjectivist view of criminality, in contrast, focuses upon the actor's culpable state of mind towards bringing about the offence harm or evil, without regard for whether the harm or evil actually occurs. George Fletcher explains: The traditionalists root their case in the way we feel about crime and suffering. Modernists hold to arguments of rational and meaningful punishment. Despite what we might feel, the modernist insists, reason demands that we limit the criminal law to those factors that are within the control of the actor. The occurrence of harm is beyond his control and therefore ought not to have weight in the definition of crime and fitting punishment. The tension between these conflicting schools infects virtually all of our decisions in designing a system of crime and punishment. 18 Recall the comparison of common law and modem code rules relating to minimum requirements. Each of these common law rules reflects a 'traditionalist' common law consistent in imposing liability only where an offence harm or evil or a credible danger of one actually exists. Completion of an attempt must be possible and must almost materialize; a conspiracy must be a true agreement between two actual conspirators; an accomplice must actually assist a real perpetrator. Where the potential for the harm or evil exists only in the actor's mind or is remote or speculative, traditionalists view the assignment of liability as inappropriate. The subjective 'modernist' view focuses upon the actor's intention to bring about the offence harm or evil. An actor need not come close to a substantive harm or evil of the offence; he need only engage in some conduct, a 'substantial step', toward that end, to demonstrate his willingness to act upon his intention. Completion of an attempt need not be possible, provided that the actor thinks it is possible. The co-conspirator need not actually agree with the actor, provided that the actor thinks he does. The perpetrator need not actually commit an offence, provided that the accomplice thinks that he will. C. An Alternative Theory of Current Laws Vzew of Criminality As Fletcher conceives of it, a person is either a 'traditionalist' or a 'modernist'. One either thinks that the occurrence of harm or evil is important to criminal liability, as the common law makers apparently did, or one thinks that it is not, as modem code drafters apparently think. While we agree that the distinction is valuable-what we call an objectivist versus a subjectivist view of criminality-we think that Fletcher's characterization of it is unnecessarily dichotomous. His traditionalist-modernist distinction is misleading because it incorrectly suggests that one must be either an objectivist or a subjectivist on all issues. In fact, we 17 George P. Fletchet; A Crime of Self Defence: Bernhard Goetz and the Law on Trial ( 1988) at 64. 18 Ibid at 64 416 Oxford Journal of Legal Studies VOL. 18 will argue, it is possible to be a subjectivist on some issues but an objectivist on others. Specifically, we will argue that it would be logically coherent to advocate a subjectivist view of the minimum requirements of liability but simultaneously to take an objectivist view of grading. If fact, we suggest that this is what ordinary people do. Thus, we carry out this argument about legal doctrines in what is an unusual way. We empirically investigate the liability assignment rules held by ordinary people in the community. We claim that, from the community's view of liability and punishment, the common law's objectivist view was too demanding in setting the minimum requirements of liability, as in defining inchoate offences. At the same time, subjectivist modem codes miss the mark when they take a subjectivist view in grading, as in ignoring the significance of resulting harm and evil. If we can demonstrate this, we certainly will have demonstrated that the distinction we propose is an important one to make. D. Testable Empirical Issues If this were a criminal law theory paper, this is where the analysis would end or at least would shift to a variety of forms of speculation. But the disagreements here are to some extent disagreements about how people think, essentially empirical claims. With the help of social science, we can collect and analyse data that may sketch real answers. The discussion raises these testable empirical issues: (1) Do people take an objectivist view, as the common law did, on both grading and minimum requirements issues, or do they prefer a subjectivist view, as modem criminal codes seem to? That is, are people of today Fletcher's 'traditionalists' or, as Fletcher would seem to predict by his labeling, 'modernists'? (2) Are people consistent in the view they take? That is, do they stick to an objectivist view, or a subjectivist view, in a variety of situations? Or do they switch back and forth in a way that suggests that they cannot properly be characterized as taking either view? (3) If people are not consistently 'traditionalists' or 'modernists,' as Fletcher predicts, is there nonetheless a discernible pattern in their use of an objectivist or a subjectivist view? Do people take a subjectivist view in judging the minimum requirements for liability and an objectivist view in grading, as we hypothesize? Or does the pattern follow a different principle? Or, is there no underlying pattern to peoples' liability preferences, as some writers would seem to ·expect? The next section describes how these empirical questions can be answered. 10 Some writers have suggested that criminal law has few underlying patterns. See, eg Stephen Schulhofer, 'Book Review' 68 CalL Rev 181 (1980) (reviewing George Fletcher's Rethinking Criminal Law). AUTUMN 1998 Objectivist vs Subjectivist Vzews of Criminality 417 2. Tools for Testing the Criminal Law Theories: Social Psychology Scenario Research A. Scenarios and Measures There are a number of methods that can be used to probe lay judgments about complex issues, and the one we chose to use in this study was the 'scenario or vignette method'. Subjects are presented with a short description of a person's conduct, and are asked whether and, if so, how much liability and punishment the actor should receive for the conduct. Subjects are next given another scenario, and assess liability and punishment for that actor, then another scenario, and so on. The scenarios are varied by the researchers in ways driven by the theories being tested, and the researcher examines the differences between the liabilities assigned to each scenario. Rather than having the subjects assign ratings to what can quite quickly become a large number of differing scenarios, why not just ask the subjects whether they think a subjectivist or an objectivist view of criminality is appropriate for the legal issues we are concerned with? Because psychologists have discovered that subjects often do not have mental access to the principles and processes they use to make decisions, and thus cannot accurately articulate those principles. Instead, researchers present subjects with various cases to judge, and infer their judging principles from the resulting patterning of responses between the different cases This is what we did in the present research. We presented subjects with cases to judge in the form of short scenario descriptions of potentially criminal actions. Because the focus of our research was on contrasting various versions of the subjectivist and objectivist approaches to liability assignments, we designed the variations in our scenarios to reflect those different approaches. Generally, two cases differed in a way that would 'make a difference' to, for instance, a person with an objectivist view but not to a person with a subjectivist view. 'Make a difference' here means that the two cases would generate different liability judgments if the subject took one view of criminality, but not if he or she took the other view. One way of summarizing the implications of the various aspects of the research design is to say that we conducted an experiment designed to determine whether the experimental respondents took an objectivist or subjectivist stance on issues of grading of offences and minimum requirements for offences. Experimentation is an unusual tactic in research concerning legal issues; other empirical techniques such as the examination of existing records or other archival procedures, or opinion surveys, are more common. Part of what we seek to demonstrate to criminal law theorists and code drafters is that this most rigorous form of scientific research, experimentation, can be brought to bear on their issues of debate. 418 Oxford Journal of Legal Studies VOL. 18 Subjects first read a paragraph of core information that gave the background to the various scenarios: Please keep this general description of John in mind as you answer the following cases. Remember, you are always assigning a punishment to the character named John. In some of the scenarios other persons also deserve punishment, but we are not concerned with measuring that. We are only concerned with the punishment you would assign John. Next they read a specific scenario and assign a liability to the perpetrator described in it. For instance, the murder scenario read as follows: John is angry with prosecutor Paul for Paul's vigorous prosecution of John's father for income tax evasion. John feels the prosecution has ruined both his father's life and his own, and is intent on taking revenge. John buys an easily concealed gun, planning to confront and kill Paul in the parking lot of his office. As prosecutor Paul approaches his car in the parking lot of his office, John, standing several yards away, shoots and kills him. The sound of the gunfire draws security guards, who arrest John. This is obviously a case of murder, and we use it to establish the sentence that the subject would give to murder committed in these particular circumstances. It is not likely to get different liability responses from objectivists and subjectivists. It provides a point of comparison for later cases-to see whether subjects thought the subsequent case deserved less liability and punishment than a straight murder case. No doubt some people will give higher punishment than others; for example, some may give the death penalty, while others, who are opposed to its use, will not. But using the experimental design we have chosen, whether the subject is a generally harsh or an easy sentencer, which is not the focus of our concerns, can be functionally excluded from our analysis. Our interest is in the difference in liability between specific scenarios, not the absolute amount of liability in any scenario. As noted above, scenarios differ in ways designed to elicit one· pattern of liability assignments if the subject takes an objectivist view, and another if the subject takes a subjectivist view. For instance, a second scenario read as follows: John is angry with prosecutor Paul for Paul's vigorous prosecution of John's father for income tax evasion. John feels the prosecution has ruined both his father's life and his own, and is intent on taking revenge. John buys an easily concealed gun, planning to confront and kill Paul in the parking lot of his office. As prosecutor Paul approaches his car in the parking lot of his office, John, standing several yards away, shoots at him but misses. The sound of the gunfire draws security guards, who arrest John before he can get another shot at Paul. The contrast between the two cases is clear: in both the intent is to murder, but in the second case the murder does not succeed, the harm has not occurred. Therefore the subjectivist should assign similar liability to both cases, while the objectivist would assign lower liability to the second case. AUTUMN 1998 Objectivist vs Subjectivist Views of Criminality 419 Notice that we have attempted, and we hope succeeded, in making the two scenarios differ in only one way, the way that is relevant to the theoretical comparison in question. The subjects perceive the different scenarios as having the same overall characteristics, so that any differences in liabilities assigned can be attributed to the one characteristic that is varied between the contrasting scenarios. The task of each subject, then, in response to each scenario was to assign a degree of liability and punishment to the protagonist in the scenario-in their view, to assign punishment to a wrong-doer. Subjects did this by marking their judgment on the scale shown below, a scale with which they quickly became familiar: N 0 2 3 4 5 6 7 8 9 10 11 No Liability 1 day 2 wks 2 mo. 6 mo. 1yr 3yrs 7yrs 15 yrs 30 yrs Life Death liability but no imprison-