Kadish on the Voodoo Case

1. Under this definition, can Victor be convicted of attempted murder? 
Yes, on all three premises of M.P.C.'s definition of "Attempted Rape". The first requires that one commit an act that harms another if the conditions were as if one imagined it. In other words, Victor believes that his wife is under the power of voodoo, and commences his activity. A second requirement is that one makes no (action/or inaction) so as to prevent the crime. Victor, once he has had enough, continues without hesitation to the completion of the act. The third premise requires a substantial step in the direction of the crime. Victor, in this case, completes the entire crime.

2. How would Kadish analyze this case?
Kadish makes extensive comments on the "harm doctrine", examining it by use of three prevalent legal examples: law of attempt, cupable risk, and impossibility. For relevance sake, I will relate Victor's example (voodoo case) with Kadish's views on attempt and impossibility. To Kadish, its absurd to "reward" a failure to complete a crime. He is likely to argue that Victor should be charged fully for murder and not for attempt. He takes a similar stance when he invokes the example of a man who stabs his son in anger. His son is hospitalized and he enters jail temporarily waiting to be tried. In three months his son dies, and the man is charged with murder (a crime with life sentencing). Kadish says, "Has he suddenly gotten more dangerous because his son finally succumbed?...In none of these cases does it make a whit of difference so far as identifying the actor as prima facie (at first appearance) requiring protective measures or as indicating the length of time the actor should be held". (Smith 399) In this quotation, Kadish is prodding at the "harm doctrine" exposing it as unreliable at criminal prevention. To do this he hypothesizes that the man's act/intent/nature should not be treated differently before and after his son's death. In like fashion, that Victor was successful in the crime is irrelevant if he truly believes that stabbing the voodoo doll would kill his wife- Victor's dangerous nature is still there, and should be treated in this manner. Suppose his wife lives, and he walks away free, soon getting a solid grip on the lived universe (or disbelieving voodoo). What is to say he wont attempt to kill his wife once more, in the physical realm? The intent was, and will continue to be there.

It's unclear what Kadish's views are on the impossibility doctrine, that is, how to judge crimes if they are impossible to commit. He says, "It may be conceded that a different response may be called for if the impossibility would be obvious to any sane person...or where the evidence of criminal intent is doubtful". (Smith 399) He makes no mention of what this different response is, but one can induce an argument from his following claims on the cases that intent is [not] doubtful. One may examine Victor's case and say, no sane person believes in voodoo (impossibility). Yet, Victor would insist that for him, voodoo is real and connects his personal fabric of reality. Thus Victor's, who murders his wife (in the voodoo sense), guilt is indisputable. To Kadish, "punishing attempts and completed crimes differently makes no sense insofar as the goal of the criminal law is to identify and deal with dangerous offenders who threaten the public". (Smith 399)

Yet, its important to recognize that Kadish intention for this paper is to show how the "harm doctrine" is not consistent and successful in judging crimes. All of these predictions I've listed above are inferences, and not direct assertions by Kadish. It's probably more reasonable to assume that Kadish would be more skeptical than making any declarative statements about how things should be judged.

3. What is Kadish’s criticism of the “harm doctrine” and how does it apply to this case?
 Kadish argues that the "harm doctrine" is theoretically incoherent and ineffective in it's goal of crime prevention. He uses examples such as that mentioned in (Q#2) with a man stabbing his son. The father is not any more dangerous to society prior of after his son's death (taking personal transformation of the father aside). Therefore to judge him based on the results of the outcome, whether attempted murder or murder, is nonsensical. He will further assert that the argument from harm is illogical and leads to a different conclusion than one accepted by the courts. It is, "we need the harm to happen in order to be sure of the dangerousness of actors". (Smith 399) To not honor this harm principle, is to deprive actors of the final freedom to do what is considered good, and right. Kadish will say that in both a failed crime and attempted crime, the intent must be proven to convict. Further, to follow this argument is, "not to punish less but to not punish at all". (Smith 399)

Kadish will go on to deconstruct other arguments in favor of the "harm doctrine". Deterrence is one way to prevent crimes. In simple words, if one becomes aware of the punishment associated with a crime he/she is less likely to commit it. Kadish poses under these lens, whether it is right to judge attempts and crimes the same. He says no, "the only way to maintain its full deterrence force is to threaten punishment whether or not the harm occurs". (Smith 400) It wouldn't make sense for deterrence's sake, to inform citizens that if they try a crime and fail, they will be punished less for it. Kadish makes this claim simply to prove the ineffectiveness of judicial system under the "harm principle".

Kadish considers an argument from "moral luck" to be a substantial obstacle in his goals to prove it irrational. It is propogated by Thomas Nagel, who uses determinism as a premise for judicial rulings. In a deterministic world, people are products of luck, not in control of their preferences, choices and existence. Therefore, any situation that arouses one's antisocial or criminal tendencies is on two levels (preferences and environment) is dependent on one's luck. This view poses a challenge to our current system which believes, "what you deserve is what you choose". (Smith 401)

For commentary of how Kadish's criticism applies to Voodoo case, see (Q#2).

4. According to Kadish, why do we still have the “harm doctrine”? 
Society influences what is to be, and not to be the law. Occasionally, "the law must defer to people's irrationalities to mantain the acceptance needed to govern." (Smith 397) While most are not likely to enjoy being called irrational, one should understand that Kadish's irrationality is synonymous with intuition. His claim is not that the masses are not stupid, but instead misguided, "Doesn't it seem natural for a parent to want to punish her child more for spilling his milk than for almost spilling it...more for running the family care into a wall than for almost doing it?". (Smith 401) The reason that the legal system clings onto the harm doctrine is because it conforms to a common morality appealing to societal intuitions. Kadish will further assert that the law is merely a reflection of the society's morality. Therefore, the law will judge according to what society deems fair. I interpret Kadish claim to mean that one should clarify one's assumptions about morality to know what is just and fair. Our misconceptions will reflect into our legal system and may condemn or reward others unjustly.