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A Capital Offense Spared by Luck? : Crime: The Denny trial will tread the fine line between his assailants' intent and the result.

August 27, 1993|JEROME H. SKOLNICK | Jerome H. Skolnick, a law professor and sociologist at UC Berkeley, has written on criminal law and collective behavior. He is co-author of "Above the Law: Police and the Excessive Use of Force" (The Free Press, 1993). and

Much has been written contrasting the beating of Rodney King with the beating of truck driver Reginald Denny. King, on parole, was drunk, speeding and resisting arrest; Denny was doing his job. Police are authorized to use force; civilians are not. The cops obtained medical treatment for King; the men who beat Denny left him in the street, possibly to die.

Yet there has been slight notice, if any, that the trial of Damian Williams and Keith Watson, accused of attempting to murder Reginald Denny, brings to the surface one of the most fascinating conundrums in the theory of the criminal law: Why should attempted murderers face a less-harsh penalty than murderers, when mere chance or the intervention of others is all that made the difference between the victim living or dying?

In a lecture at UC Berkeley last year, Sanford Kadish, a noted authority on criminal law, argued that lesser punishment in such cases is "irrational." If a conviction is supposed to deter future criminality, we should want to punish those who attempt a crime as severely as those who complete it. And if justice is what we seek from punishment, Kadish said, it is unjust to punish the attempting criminal less because his victim was rescued from death.

The Reginald Denny case consequently implicates profound issues in both sociology and law.

For the sake of argument, assume that the jurors reject the defense contention that Williams and Watson were mistakenly identified as the men who assaulted Denny. The jurors then will need to put themselves in the social and psychological position of a Damian Williams or a Keith Watson. They will have to ask themselves: What were Williams and Watson thinking when they assaulted Denny? Did they view him as a symbol--"Whitey"--of a society whose justice system failed to convict cops who had beat a young black "brother"? Did they actually mean to kill Denny, as an assassin means to kill his target? Or were they being reckless and indifferent, scarcely thinking, just acting out their emotions in the hysteria of the moment?

Sociologists have theorized about why people behave the way they do in riots. The modern study of collective behavior has it origins in 19th-Century European writers on "the crowd." In becoming part of a crowd, wrote Gustave Le Bon, "a man descends several rungs in the ladder of civilization." Crowd behavior was said to be impulsive, spontaneous and uninhibited, rather than the product of reason, tradition and the restraints of civilized life. Crowd participants were said to be especially susceptible to suggestion, and ideas spread in the crowd like a highly infectious disease, through "contagion."

Later sociologists, mainly those who interpreted the urban American riots of the 1960s, saw them as more political and purposeful than emotional. They were the product of a sense of grievance, and of years of frustration born and bred in poverty and de facto segregation. From this perspective, looting, for example, was interpreted as a form of group protest against economic injustice.

But even if a riot contains elements of purpose, how are jurors to understand what it means for a man to batter an innocent truck driver trapped in the madness of the moment?

Criminal law is ordinarily very demanding. If you shoot a bullet at someone's head, even if the bullet misses its target, the law assumes that you meant to kill him. But what about a brick or a bat aimed at a man's head in the context of a riot? If he dies, the law says you intended to kill him and charges you with murder. If he doesn't die, you are charged with attempted murder. If convicted, you are punished less than if your victim had died, even if, logically, your punishment should be the same.

But maybe the law works itself out justly, after all. That is, if your victim is fortunate enough to survive when you act spontaneously, uninhibitedly and impulsively, as people often do in a riot, you could be said to deserve less punishment. Therefore, someone "attempting" murder in that context should, from a moral perspective, be punished less, since the "attempt" was likely to be reckless rather than focused. In traditional legal terms, the capacity to intend has possibly been diminished by the social and psychological imperatives of rioting.

The law, as life itself, is paradoxical. Unless the victim dies, the law cannot assume that the transgressor really meant to kill--even though whether the victim lives or dies might be entirely fortuitous. And so the law punishes people less for attempting murder, even though it is perhaps just as morally wrong to attempt murder as to achieve it.

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