A Theory of Differential Punishment

INTRODUCTIONIn 2009, three roommates at Purdue University in Indiana were drinking in their living room on a Saturday night when one of them, Landon Siela, headed to the bathroom. The other two roommates, William Calderon and Cory Lynch, each decided to "prank" Siela by pulling an unloaded gun on him and pretending to shoot when he returned to the living room. Tragically, Lynch's gun, unbeknownst to him, still had a live bullet lodged in the chamber, which struck and killed Siela when Lynch pulled the trigger. As a result, Calderon and Lynch were both convicted of criminal offenses. But while Calderon was convicted only of the Class A misdemeanor of "pointing a firearm," punishable by no more than a year in prison,1 Lynch was convicted of reckless manslaughter, a Class C felony that carries a maximum sentence of eight years.2It is clear that the fact that Lynch's reckless actions caused Siela's death exposed him to much harsher legal penalties than those faced by Calderon. It is less clear, however, what justifies this discrepancy in severity, given that Lynch does not seem to have behaved any more culpably than Calderon. This dilemma, a close cousin of the philosophical problem of "moral luck," has long stood as an intractable puzzle in the theory of criminal law.3The majority position among scholars on this topic, exemplified by Stephen J. Schulhofer in his influential 1974 article Harm and Punishment, is that differentiating punishment based on its results cannot be justified as a matter of practice.4 However, some theorists have dissented from this view. A few proponents of retributive punishment, most prominently philosopher Michael Moore,5 have attempted to resolve the dilemma of "differential punishment" by claiming that the consequences of one?s actions weigh directly on one?s ?moral desert,? and thus that an action that causes greater harm merits greater punishment.6 Other commentators, such as Judge Richard Posner, have advanced utilitarian rationales for more severely punishing those offenders who cause greater harm, arguing, inter alia, that this approach more effectively and efficiently deters future harmful conduct.7 However, as of yet, no theorist has succeeded in producing a widely accepted justification for this feature of the criminal law.In this Article, we propose a general theory of differential punishment-that is, the practice of differentiating an offender?s punishment based on whether her actions bring about a statutory harm. In so defining differential punishment, we borrow Schulhofer?s definition of statutory harm as ?[a]ny consequence of conduct . . . [that] is a necessary element of a given offense.?8 As Schulhofer explains, the concept of statutory harm is not coextensive with what might ordinarily be thought of as the ?harms? caused by a criminal offense, or with the ultimate harm or consequence that the criminal offense seeks to prevent.9 For example, if a married man is murdered, his wife might be ?harmed? in that she mourns his death and misses his company. But the wife?s psychological distress is not a statutory harm for the crime of murder, because-unlike her husband?s death-it is not a necessary element of the crime. Conversely, because the crime of burglary requires ?unauthorized entry into a building with intent to commit a felony therein,? one might reasonably think that the intended felony, and not the unlawful entry, is the ultimate harm the crime of burglary seeks to prevent.10 However, because ?unauthorized entry into a building? is a consequence of the offender?s conduct that is a necessary element of the crime of burglary, it is a statutory harm. Moreover, it is important to note that not all crimes have a statutory harm-for instance, inchoate crimes, such as attempts, prohibit certain types of conduct even if such conduct does not lead to any statutorily prohibited consequences.While a myriad of factors go into determining what specific sentence a judge will impose in any given case (such as an offender? …