Harm Matters: Punishing Failed Attempts
This article develops and defends an objectivist account of punishment that seeks to reconcile debates about whether successful and failed attempts at criminal harm ought to be punished differently. It is an account focused on the special significance of harm, and in particular, on its crucial role within a plausible theory of sentencing. This theory is a version of negative retributivism according to which penal sentences aim to reduce crime within upper and lower proportionality limits that are keyed to victim harm. These proportionality limits must be constructed in ways that reflect the culpability of offenders. Intentional or deliberately inflicted harms are the most culpable and penal harms should take this into account; recklessly or negligently inflicted harms are less culpable and penal harms should be discounted accordingly. Unlike many subjectivist accounts, however, the theory holds that it is the harms typically wrought by criminal offenses, rather than offender culpability, which play the lead role in determining sentence ranges for core criminal offenses.