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Prayer as Attempted Murder?

A reader asks an interesting question:

Some Christian Reconstructionists are urging their fellows to pray for the death of John McCain so that Sarah Palin will be become President. [Example here.] Are those who pray for McCain's death guilty of attempted murder, and are those urging them to do so guilty of incitement? It seems to me that they are. Although I don't believe that their prayers can have any effect, it seems to me that this falls into the same category as the oft-discussed firing of an unloaded gun or firing a gun into a bed that turns out to be empty. The intent to kill is present and an action has been taken in furtherance of that goal. Christians should presumably be all the more clear that this is attempted murder insofar as they believe prayer to be efficacious.

This, it seems to me, is a good illustration of the limits of analogy. It's true that asking someone to commit murder may well constitute attempted murder (as well as the crime of solicitation). The test for attempt is generally not just that "an action has been taken in furtherance of that goal" — different jurisdictions require different amounts of conduct, but all require more than just "an action" for an attempt prosecution (as opposed to for a conspiracy prosecution, where an agreement plus an overt act, even a relatively minor one, generally suffices). But when a person has asked another human being to commit the crime, especially when he hopes that the other person will commit the act with no further help from the requester, that would usually qualify. And indeed it generally doesn't matter if it turns out that the request couldn't possibly work, for instance because the person asked would never commit the crime, or was accidentally given an unloaded gun, or some such.

But people aren't the same as God, either to atheists or to religious people. One way of seeing that is that God's action wouldn't be illegal. To those who believe in God, as he is conceptualized by most Americans, God's action wouldn't even be immoral. (It's true that some people say "If God killed people for this-and-such, he would be evil," but usually they are people who don't believe that God does that.) It would be within his authority as, in a sense, the ultimate sovereign of the world.

In fact, if there is an analogy here, it would probably be to a petition to the President asking him to order an assassination that he could lawfully order (or, as to the other part of the reader's question, to exhortations to the public aimed at getting people to petition the President to order such an assassination). I would say that it's even legal to petition the President to order assassinations that are illegal; but, as I said, there's nothing illegal in God's hastening someone's death.

We could try to come up with precise constitutional foundations for this, for instance that the request to the President is protected by the Petition Clause of the First Amendment, and that a request to God is protected by the Free Exercise Clause. Or we could focus on a legal distinction between asking someone to do something that is legal for him (or Him) to do from asking a contract killer to do something that is illegal for him to do. Or we could focus more practically on the relative unlikelihood that a person who tries to cause death by prayer will switch to a gun if prayer fails. (That's one reason we punish attempted killers even when their attempts were factually impossible, for instance because the gun is unloaded: We figure they are quite likely to try with a loaded gun next time.) But we don't have to choose, because all these factors strongly point in the same direction, and strongly suggest that asking God to end a person's life is very far from asking an acquaintance or a prospective contract killer to do the same.

(I should note that there has been a little judicial commentary on attempts to kill by voodoo or withchraft, as best I can tell unanimously opposing criminal liability in such situations. See Commonwealth v. Johnson, 167 A. 344 (Pa. 1933) (Maxey, J., dissenting); Attorney General v. Sillem, 159 Eng. Rep. 178 (1863). But I'm not sure this is a perfect analogy, either, and in any event there's not much real law on that.)

Ryan Waxx (mail):
It may not be attempted murder, but it is quite successful at being disgusting.
9.5.2008 3:17pm
smitty1e:

Christian Reconstructionists are urging their fellows to pray for the death of John McCain

I'm beset with confusion. How does anyone legitimately claiming Christianity pray for the death of another?
It seems these CR people are in need of a prayer for literacy regarding the Gospel.
9.5.2008 3:20pm
Scott Scheule (mail) (www):
Not precisely on point, but this reminds me of David Friedman's paper; it addresses whether or not we should punish those who attempt murder through voodoo.

Link.
9.5.2008 3:22pm
EH (mail):
At least they're keeping busy with prayer rather than blowing up federal buildings.
9.5.2008 3:24pm
darelf:
I worry about the mental state of someone who would pray for the death of someone who isn't even their enemy. That aside, I can't think of a single instance in Scripture of anyone praying for the death of another (it's a big book though, so I may just have missed it).

If they want to be effective, they ought to pray that McCain follow counsel from Palin rather than for his death. (Interesting, I suppose, that they wanted his salvation first followed by death... but I wonder at that, because don't they believe salvation would lead to a radical change in his life? Wouldn't that alone be enough to accomplish their goals? These people are confusing...)
9.5.2008 3:28pm
Arkady:
Yeah, and moreover, you can't always be sure what God will do. I mean, that guy from Dobson's outfit who asked that all the communicants pray for rain on Obama's Denver speech must be wondering what he did to piss God off what with Gustav showing up.

Seriously, though:


We could try to come up with precise constitutional foundations for this, for instance that the request to the President is protected by the Petition Clause of the First Amendment, and that a request to God is protected by the Free Exercise Clause.


At a minimum, the Free Exercise Clause ought to to construed to allow all of us to follow own (perhaps in the eyes of others) goofy pathes to salvation, at least as far as utterance (prayer) goes.
9.5.2008 3:33pm
Eugene Volokh (www):
I'm no theologian, plus the idea of God's judgment being influenced by our judgment seems pretty zany to me. If God is omniscient and supremely just, he already knows all that we're telling him, and it's hard to see why he would change his actions -- whether in bringing rain or football victory or someone's death -- based on what we ask.

This having been said, I take it that the moral justification is precisely that (1) God is just, and (2) death is just the soul's moving from one home to another (and quite possibly a much better one). So if one is asking God to shift someone from this world to the next, with the implicit (and perhaps explicit) condition that God is to do so only if it's the just thing to do, and with the understanding that the next world will be the target's just reward, it's hard for me to see what's disgusting or otherwise bad about it. It's also hard for me to see how it can possibly make any sense, for the reasons I mentioned in the first paragraph. (I do think that asking God to do something like this might be somewhat presumptuous, again for the reasons I mentioned in the first paragraph -- God presumably knows just fine where John McCain should be, without anyone telling him that -- but I'm not sure the presumptuousness is that different from that inherent in asking an omniscient, just God for other things.)
9.5.2008 3:45pm
Asher (mail):
Or we could focus more practically on the relative unlikelihood that a person who tries to cause death by prayer will switch to a gun if prayer fails. (That's one reason we punish attempted killers even when their attempts were factually impossible, for instance because the gun is unloaded: We figure they are quite likely to try with a loaded gun next time.) But we don't have to choose, because all these factors strongly point in the same direction, and strongly suggest that asking God to end a person's life is very far from asking an acquaintance or a prospective contract killer to do the same.

Actually doing a thesis on attempts and whether they should be punished as severely as completed crimes right now. It seems to me that, if we assume that the supplicant strongly believes in the efficacy of prayer, and really thinks there's a very good chance that their prayer will lead to McCain's death, there isn't any reason to assume that they'd be relatively unlikely to subsequently attempt an assassination by more earthly means (though I suppose God's failure to act might make them question whether McCain deserves to die after all). As for the lawfulness of God's actions, you have a point, but suppose that our would-be killer subscribes to some sort of polytheist religion in which the gods are not necessarily moral characters, but rather vengeful, spiteful, very human types, in the manner of the Greek gods. Then I think you have a very good analogy to the unloaded gun.
9.5.2008 3:49pm
Eugene Volokh (www):
Asher: I highly doubt that most supplicants believe in the efficacy of their individual prayers, especially prayers for someone's death. I also think that most supplicants distinguish the moral significance of asking God to transfer someone's soul from one world to the next from the moral significance of effectuating this transfer themselves. And since the "stop them before they succeed" rationale for punishing attempted crimes relies heavily on our factual prediction of how unsuccessful attempters are generally likely to behave (and not just on our guess about this particular attempter), this empirical judgment -- a guess, I realize, but one in which I have a good deal of confidence -- is pretty important here.
9.5.2008 3:55pm
JK:
One possible complecation is that nuts like this often come to think that the word of god is to be carried out by them personally. I could see a "prayer" that god strike down John McCain as an implied order to the congregation to go and carry out gods presumtive will and kill McCain.

How would we feel if gang leaders were making offical prayers that certain enemies drop dead. I don't know if it's a great idea ot give ppl wishing death upon others the benefit of the doubt that they don't want it to happen by illegal means.
9.5.2008 3:59pm
Sarcastro (www):
[It's odd the crazies are concentrating on killing McCain, but just want it to rain a bit on Obama.]
9.5.2008 4:02pm
Adam J:
Professor Volokh- I certainly don't think these idiots should be liable, but I'm not sure your argument holds much water.
"To those who believe in God, as he is conceptualized by most Americans, God's action wouldn't even be immoral. It would be within his authority as, in a sense, the ultimate sovereign of the world." That might mean its not wrong under God's law. But the United States doesn't really recognize this sovereignty does it?

I don't understand how the folks praying are any less culpable simply because they believe that God's acts couldn't be illegal- what if they were carrying out the killing themselves, as a sort of God-sanctioned murder. What if they're praying to the guy down below to kill McCain? What if they're praying to Zeus? Simply because they've picked a Christian God (questionable- since last time I checked He doesn't do killings for prayer) its okay? If we recognize God's sovereignty, then would a court have to determine if it was God sanctioned? No, cause we a nation that applies the laws of men, we don't try and figure out what God's laws are. We think murder is (almost) always criminal.

If they're not culpable, it's because they're completely out of touch with reality and have sought to kill someone in a manner completely ludicrious manner and we believe they're unlikely or unwilling to turn to a more effective method.
9.5.2008 4:04pm
Kent G. Budge (www):
C.S. Lewis wisely pointed out that we can't tell God anything He doesn't already know when we pray. The point of prayer is not to change God, but ourselves.

One wonders what kind of change it makes in oneself to pray for the death of a political opponent.

I also don't get that it is self-proclaimed Christians doing this. I'm pretty sure Christ taught His disciples to pray for their enemies.
9.5.2008 4:10pm
Bill Poser (mail) (www):
Why is it so clear that criminalizing certain prayers is prohibited by the Free Exercise clause? If, for example, prayer is accompanied by human sacrifice, it would not be protected, would it? (I'm not aware that the courts have actually ruled on this point.) If the legislature believes that those who sincerely pray for the death of others are dangerous, perhaps because it considers them likely to move on to other means if their prayers are not answered, would that not arguably be a neutral government interest of sufficient strength to permit interference with free exercise?
9.5.2008 4:13pm
Eugene Volokh (www):
Adam J: God's actions clearly aren't illegal under American law; American law doesn't purport to reach them. They just aren't murder, and asking for them isn't asking for murder.

Nor are they viewed as immoral by virtually any Americans, I think -- those who don't believe in God or think God doesn't work that way think there are no actions to be evaluated, and those who do believe God listens to prayers think God's actions are proper. That God's actions aren't illegal is the most important point for me, but that they aren't even immoral helps buttress that.

Of course, if they were carrying out the killing themselves, then the actions would be legal, and would be judged as immoral by most Americans. Prayers to Satan are asking for non-illegal actions (Satan's actions too are outside U.S. courts' jurisdiction) but asking for actions that I suppose most people would see as immoral.

JK: You say, "nuts like this often come to think that the word of god is to be carried out by them personally." What exactly do you mean by "often"? What is the likelihood that any particular person who prays for someone's death will actually kill him?

As to whether this is "an implied order to the congregation to go and carry out gods presumtive will and kill McCain," my understanding is that no-one making such statements has such authority over the congregation that they would take their requests as orders, much less as orders to kill. And if the worry is simply that the exhortation to prayer may persuade some listener to kill McCain, then that's governed by the Brandenburg v. Ohio test -- speech is criminally punishable as incitement only when it's intended to and likely to lead to imminent criminal conduct -- and the test won't be satisfied here: There's no evidence that the exhorters are intending to get people to kill McCain themselves, even if there was such intent there's good reason to think that they wouldn't be intending to trigger an imminent killing (generally defined under the Court's First Amendment precedents as targeted for some time in the coming hours or days), and on top of that there's no reason to think that their speech is likely to trigger such an imminent killing.
9.5.2008 4:14pm
wm13:
I don't see anyone at the cited link actually advocating prayers for John McCain's death, just someone asking whether that would be a good idea. Though of course there may be someone somewhere who has advocated such prayers.

Isn't this issue part of the "impossibility" set of questions? (Which I confess I barely remember, except for Lady Eldon's laces.) Prayers of this nature--since God won't answer them--are analogous to feeding your spouse something which is actually harmless, but which you wrongly believe to be poisonous, with the intent of killing him. I'm not sure whether there are any actual cases where that happened, or if it's just a law school hypothetical. Nor do I remember whether such an action does qualify as attempted murder. (Fact is, I'm not sure I ever understood the impossibility doctrine.)
9.5.2008 4:16pm
Sarcastro (www):
[Bill Poser criminalizing thoughts offends the Due Process Clause of the 14th Amendment.

Though it looks like you could make it a sentence enhancement a la hate crime legislation.]
9.5.2008 4:18pm
Bill Poser (mail) (www):
It seems to me that your (Eugene's) argument works if we assume: (a) that there is a sovereign god; (b) that the effect of prayer is mediated by god's volition. But what if we don't make these assumptions? In particular, suppose that prayer works, insofar as it is effective at all, by direct manipulation of nature, as in some traditions of witchcraft, where the witchery is not the result of appeals to spirits but depends on arcane "scientific" knowledge. It seems to me that this case is indistinguishable from the unloaded gun case.
9.5.2008 4:20pm
Crust (mail):
Kent G. Budge:
I also don't get that it is self-proclaimed Christians doing this. I'm pretty sure Christ taught His disciples to pray for their enemies.

It's presumably a tiny minority of self-proclaimed Christians who believe this. Tiny minorities of any group believe all kinds of bizarre things.

What I don't get is why so many Christians aspire to be wealthy despite the admonishment that "it is easier for a camel to go through the eye of a needle than for a rich man to enter the kingdom of God".
9.5.2008 4:21pm
Eugene Volokh (www):
Bill Poser: (1) Criminalizing human sacrifice is of course permissible, but I don't see why this shows that praying to God -- which is both speech and religious conduct that doesn't by itself have any consequences that the law recognizes as harmful -- is punishable.

(2) Now if indeed "the legislature believe[d] that those who sincerely pray for the death of others are dangerous," and it had a solid basis for this belief, then our analysis might prove to be different. But I would think the belief would have to be extraordinarily well-founded. Generally speaking, the legislature can't criminalize speech just because it thinks those who engage in the speech are dangerous (consider the virtual child pornography case as an example), and I don't see why this wouldn't cover speech to God as much as speech to the public.

(3) But I don't think we need to reach the questions in item 2, because I know of no legislative finding that those who sincerely pray for the death of others are dangerous. The question is whether courts, in the absence of such a finding, make something like that finding themselves and apply broad common-law-derived attempt principles to criminalize such prayers. For all the reasons mentioned in my post, I think the answer is no.
9.5.2008 4:22pm
Bill Poser (mail) (www):

criminalizing thoughts offends the Due Process Clause of the 14th Amendment.


Maybe, but this assumes that prayers are merely thoughts, which is arguably false. Prayers are a particular kind of speech act. If I merely think something (e.g. that it would be nice if Bush and Cheney would be struck by lightning), there is no effect on the world. If I sincerely pray for something to happen, I am taking an action that I hope will have an effect on the world.
9.5.2008 4:25pm
Asher (mail):
Asher: I highly doubt that most supplicants believe in the efficacy of their individual prayers, especially prayers for someone's death.

As a practical matter, I'm sure you're right. In terms of risk creation, the supplicant probably doesn't believe he's creating much risk at all. I'm not at all advocating the prosecution of real-world supplicants for McCain's death. But as a hypothetical matter, we can imagine someone who really does believe that his prayers have a good chance of getting answered. Perhaps a person who's prayed for the deaths of others and, by pure coincidence, found that their prayers were subsequently 'answered,' and therefore has an expectation of efficacy in the case of future prayers. In that case, I think you might have an impossible attempt. The legality of God's actions is a problematic factor here, but our supplicant could be a satanist. Though I think you run into Establishment problems if you start saying that some gods are legally untouchable and other divinities aren't. But you'd know much more about that than me.
9.5.2008 4:33pm
Bill Poser (mail) (www):
Here's another Christian Reconstructionist discussion of the idea of praying for McCain's death.
9.5.2008 4:34pm
Bob Montgomery (mail):
Could we have a better example of CRs praying for McCain's death? The quote at the linked example is:
Pray for John McCain's salvation and pray specific imprecatory prayers if he fails to pro-actively defend the sanctity of human life.

I'm sure that offends many, but I think it is very misleading to label this as:
urging their fellows to pray for the death of John McCain so that Sarah Palin will be become President


Also, in response to this:
I'm beset with confusion. How does anyone legitimately claiming Christianity pray for the death of another?
It seems these CR people are in need of a prayer for literacy regarding the Gospel.

See Ephesians 5:19, and then read Psalms 83, 109, 3, 139, etc.
9.5.2008 4:35pm
Splunge:
You've also overlooked the fact that prayer is understood, at least among intelligent believers, as not merely a petition but a dialogue, or perhaps more precisely a communion. To pray for John McCain's death, say, is merely the opening statement. Presumably something comes back from God which, if you pay attention, puts you in greater harmony with The Master Plan.

Here is something of an illustration of how that can go.

In a profound sermon I heard 20 years ago, Dean Alan Jones of Grace Cathedral described praying with some of his parishioners who were dying of AIDS. (In that year there was no treatment whatsoever for AIDS generally available, so that the full-blown disease had a mortality rate of 100.00%.) You might imagine that the only useful response of God to a prayer from a man with AIDS is to let the cup pass, but Dean Jones argued convincingly to the contrary, that much useful could come from the dialogue even if its opening request was denied. I can't reproduce the argument, both because of failing memory and because I am not a man of faith. But the argument has been made by other formidable thinkers, from St. Augustine on down, that prayer bears little resemblance to a grubby little petition to Caesar for a tax forbearance.

An analogy: a man on the psychiatrist's couch is encouraged to speak out loud his wish to kill his mother/father/wife/self. Is this evil? Certainly not, rather the contrary; it is the opening step on a path to understanding and redemption.

In that sense, then, suggesting that if you have a wish for John McCain's death you deliver that wish to God through prayer is good advice -- equivalent in some crude way to the suggestion that if you have a wish to kill yourself you go tell your shrink about it. Considering either the action or the encouragement to be thoughtcrime is the kind of narrow-minded textually-obsessed inhumanity one might expect from a damned and joyless soul.
9.5.2008 4:37pm
Bob Montgomery (mail):
Bill Poser, that link of course is a parody.
9.5.2008 4:37pm
Snaphappy Fishsuit Mokiligon:
EV: They just aren't murder, and asking for them isn't asking for murder.

Gravity isn't illegal either, but throwing someone off a building is. I think the analogy works if you view god as the weapon by which a murder is committed, not an independent agent that makes up its own mind about whether to follow your prayers.

Suppose a person prays for thing x on the morning of day 1 and it happens that day. On day 2 he prays for another thing, which also happens. This continues for 100 days, and each day the person prays for something more and more unlikely to happen, and each day the thing happens. In the course of the 100 days, the person prays for some evil things -- that his boss's car would spontaneously explode in the parking lot, that his mother-in-law's house would burn down, and each of those happen too (without hurting anyone). On the 101st day, he prays for an enemy to die. Why wouldn't that be attempted murder?

While the above is very unlikely, those who would pray for others to die surely have some lesser basis to believe in the efficacy of prayer.
9.5.2008 4:40pm
Anonymous #000:
Crust,

16: Now a man came up to Jesus and asked, "Teacher, what good thing must I do to get eternal life?"

[...]

21: Jesus answered, "If you want to be perfect, go, sell your possessions and give to the poor, and you will have treasure in heaven. Then come, follow me."

22: When the young man heard this, he went away sad, because he had great wealth.


And here we get the distinction between Godliness (striving for perfection) and worldliness (striving for comfort).
9.5.2008 4:43pm
Impatient to see:
Just wait for SCOTUS full of Scalias.

They might need to wait in line.
9.5.2008 4:58pm
Bill Poser (mail) (www):
Bob Montgomery,


Bill Poser, that link of course is a parody.


Which link? This one? What makes you think so?
9.5.2008 5:00pm
Richard Aubrey (mail):
I hope he doesn't die.
That would encourage them.
9.5.2008 5:01pm
Jon Rowe (mail) (www):

But people aren't the same as God, either to atheists or to religious people. One way of seeing that is that God's action wouldn't be illegal.


I think of Harry V. Jaffa and the folks at the Claremont Institute. They note people are to God as animals are to people. The difference between "supra-rational" (God), "rational" (man) and "sub-rational" (animals). According to these morals distinctions, man can kill, eat and enslave animals. But if he tries to do so to his fellow man he practices murder (or genocide), cannibalism or slavery.

But as it stands, just as we have moral rights over animals so does God have over us.
9.5.2008 5:01pm
vassil petrov (mail):
To reject voodoo/withchraft or prayer as a means for attempted murder you have to reject the casual connection in abstracto. In short, you must reject the underlying belief and therefore you cannot be religion-neutral.
Since most people that believe in God also believe in some form of God's intervention into the world and the people's (or some people's) possibility of influencing or inducing God's intervention into the world, it seems to me you really have to reject the casual connection in abstracto, i.e. the God's existence or ability to intervene in this world.
All other approaches either must allow persecution at least in some cases where a statute explicitly allow them or implicitly confirm God's existence which violates the separation of chirch and state.
9.5.2008 5:04pm
Crust (mail):
Anonymous #000, I'm not entirely sure I see your point. I grew up with a minister who preached that the verse means what it seems to mean. I am aware that various people try to find other interpretations -- hence my comment -- but they strike me as strained (YMMV).
9.5.2008 5:06pm
TCO:
If God answers the prayer than it was legal. ;-)

P.s. Why are people criticizing Palin for allowing McCain on the ticket? I agree he's a liberal, but at least he's not a phoney like all the others (except Paul).
9.5.2008 5:13pm
Bill Poser (mail) (www):
Eugene,

I don't understand why you raise the question of whether the prayer is sufficient to constitute an attempt. If someone prays for the death of another, he actually completes the murderous act. That's all there is to it. The prayer is not simply preparation - it is the murderous act. The only thing that makes such a prayer an attempt rather than murder itself is the fact that prayer is inefficacious.
9.5.2008 5:14pm
Dilan Esper (mail) (www):
I don't have a problem with Professor Volokh's result, but his reasoning is unnecessary convoluted.

It's much simpler. As far as the criminal law is concerned, God doesn't exist. So asking God to kill someone is like shooting someone with a weapon that one hallucinates to be in one's hand.
9.5.2008 5:15pm
vassil petrov (mail):
Also there is an amusing Bulgarian case.
The defendent was eventually absolved by the Supreme Court on the allegations that he threatened a police officer investigating his creme. The words incriminated were something like: "People that want to put me with me ends very badly" (he was a recidivist).
It turned out that prosecutors and police officers who had prosecuted him in the past had become ill or had died in car accidents and that he thought that he was "protected" (by the God of thiefs or burglars, maybe).
9.5.2008 5:21pm
Asher (mail):
Or, Dilan, like trying to shoot someone with an unloaded gun. The bullets which you suppose to be there are nonexistent - you don't know that, though.
9.5.2008 5:21pm
vassil petrov (mail):
People that want to put me IN JAIL with me ends very badly
9.5.2008 5:22pm
Ken Arromdee:
Prayers of this nature--since God won't answer them--are analogous to feeding your spouse something which is actually harmless, but which you wrongly believe to be poisonous, with the intent of killing him.

It's more like asking the local judge to arrest someone, and put him on trial so he can be found guilty and executed.
9.5.2008 5:23pm
TGGP (mail) (www):
Stephan Kinsella already took on the issue in Causation and Aggression. It also contains scenarios with midgets in remote-controlled tanks and murder by lightning.
9.5.2008 5:28pm
Anonymous #000:
Crust,

I think my point was that the thrust of the parable is the contrast of the man who seeks his comfort by doing works and the man who does works to comfort others, rather than that the fact of wealth means anything in particular. But actually, that argument isn't as relevent to this discussion as I had thought; except that public, organized praying always looked to me to be a boastful display of false righteousness.

To the extent that the result of a political campaign is important for self-aggrandizement, then it is indeed asking God for riches for worldly comfort. (Carry on, then.)
9.5.2008 5:33pm
ShelbyC:

Criminalizing human sacrifice is of course permissible



Actually, Criminalizing human sacrifice is probably not permissible, but outlawing generalized killing would, of course, be.
9.5.2008 5:33pm
Eugene Volokh (www):
Bill Poser: You write, "I don't understand why you raise the question of whether the prayer is sufficient to constitute an attempt. If someone prays for the death of another, he actually completes the murderous act. That's all there is to it. The prayer is not simply preparation -- it is the murderous act. The only thing that makes such a prayer an attempt rather than murder itself is the fact that prayer is inefficacious."

I think you might be trying to make the point that asking a human to commit a crime is what the law calls (somewhat confusingly) a "complete attempt" -- an attempt that leaves nothing left for the attempter to perform. A classic example is if you shoot at your prospective victim but miss. This is distinguished from an "incomplete attempt," which is an attempt that leaves something for the attempter to perform (e.g., if you lay in wait with a rifle waiting for your prospective victim to walk by, but are interrupted before you pull the trigger). And it is also distinguished from "simply preparation," which tends to mean "not a sufficient enough step to qualify as an incomplete attempt."

I therefore agree that if the prayer to God / request to prospective killer analogy were accepted, the action would be a complete attempt, not an incomplete one or simple preparation. My disagreement is with the analogy.

But I don't think your most recent comment captures all this quite accurately. You write, "I don't understand why you raise the question of whether the prayer is sufficient to constitute an attempt. If someone prays for the death of another, he actually completes the murderous act. That's all there is to it. The prayer is not simply preparation - it is the murderous act. The only thing that makes such a prayer an attempt rather than murder itself is the fact that prayer is inefficacious."

To begin with, the whole question is whether the prayer is indeed sufficient to constitute the crime of attempt, or whether for some legal reason it doesn't qualify. Second, I wouldn't say that even a "complete attempt" qualifies as "complet[ing] the murderous act"; "complet[ing] the murderous act" sounds to me like the crime of murder, which can't happen unless someone actual dies.

More broadly, my brief statement in my post about one aspect of incomplete attempt doctrine -- "The test for attempt is generally not just that 'an action has been taken in furtherance of that goal'" -- was simply an attempt to caution readers against taking the view that any "action [that] has been taken in furtherance of [the] goal" qualifies for an incomplete attempt. It doesn't.
9.5.2008 5:44pm
Eugene Volokh (www):
Snaphappy: I'm pretty sure that very few people view prayer to God as similar to gravity -- a force that yields regular results. Certainly the criminal law doesn't.

If it was indeed the case that someone prayed for something 100 days running, and got what he prayed for every day (setting aside his praying for things that obviously would have happened in any event), we'd have a very different world on our hands, which would pose all sorts of novel questions, both legal and otherwise. (Among other things, wouldn't this person be able to stymie any legal rules we'd apply to him, simply by praying that we drop the charges?) But that's not the way prayer works even according to those who think it works. Certainly it's not how the legal system views or should view prayer.
9.5.2008 5:48pm
XXX:
What a strange post. The link you provided did nopt advocate praying for McCain to die. Very strange of you to think that. If you are referring to a commenter there that is rediculous as internet comments are not to be taken serriously.
9.5.2008 5:50pm
Eugene Volokh (www):
Dilan Esper: It isn't completely clear to me how the legal system would or should treat shooting at someone with a weapon that one hallucinates to be in one's hand.

It is certainly the case that if you mistakenly think your weapon is loaded, and you shoot with it, you're guilty of attempted murder, even though as far as the legal system is concerned unloaded guns can't shoot people. What if you hallucinate that your gun doesn't need bullets, or that your finger is a gun? It's not completely obvious to me that this hallucination is different from a simple mistake. Plus, if you try to shoot someone with a hallucinatory gun, it does seem pretty likely that when that fails you might get a real gun (or knife or what have you).

So it seems to me that it's not just that, as far as the legal system is concerned, prayer doesn't and can't work; rather, it's the set of more specific arguments I mention in my post.
9.5.2008 5:52pm
Richard Aubrey (mail):
Decades ago, I was told by various anthropologists that voodoo death worked, if the object believed it. The fear and despair eventually overstressed the ductless glands and various physiological things happened which eventually killed him.
So would that be a crime?
Only if the guy found out about it, right?
9.5.2008 5:54pm
David Schwartz (mail):
If you complete a set of actions that you believe has a reasonable probability of effecting the death of the President, you have attempted to murder him. This is slightly different from the usual case where the "reasonable probability" test is objective.

The problem with the President specifically is that one can argue that even taking a gun to a place the President is speaking with the intent of shooting him probably doesn't have a reasonable probability of success. So if an objective probability of success were required, attempted murder would be nearly impossible to ever prove and would require delving into complex details of his personal protection.
9.5.2008 5:55pm
kietharch (mail):
Reminds me of a story:

"In a small Texas town, a new bar/tavern started a building to open up their business. The local Baptist church started a campaign of petitions and prayers to block the bar from opening. Work progressed, however, right up till the week before opening, when a lightning strike hit the bar and it burned to the ground. The church folks were rather smug in their outlook after that, till the bar owner sued the church on the grounds that the church was ultimately responsible for the demise of his building, either through direct or indirect actions or means.
The church vehemently denied all responsibility or any connection to the building's demise in its reply to the court.
As the case made its way into court, the judge looked over the paperwork. At the hearing he commented, "I don't know how I'm going to decide this, but as it appears from the paperwork, we have a bar owner who believes in the power of prayer, and an entire church congregation that doesn't."
9.5.2008 5:56pm
Don Miller (mail) (www):
The whole thing is silly.

Free Excercise clause allows people to ask God for whatever they want.

Accusing people of attempted murder for praying that God would kill someone would cause charges to be brought against almost everyone ever involved in a bitter divorce.

I am a believer in prayer, but praying for someone elses death is about as useful as tossing a quarter in a wishing well and wishing for their death. Would that be attempted murder too if they got hit by a bus the next day?

Frankly, if there were people wishing that John McCain will die so that Sarah will become President, they are putting the cart before the horse. They should be praying for Obama to die first so that McCain is guarenteed a victory in the election.

/not an Obama supporter
//wish him only happiness and health
///just hope he doesn't win
9.5.2008 6:04pm
Bill Poser (mail) (www):
Eugene,

Okay, we actually agree with regard to whether prayer constitutes an attempt. My point was simply that there is a complete attempt here, as complete as when someone points a gun and pulls the trigger. If the prayer is not efficacious, one has an attempt rather rather than murder just as when the gun misfires or turns out to be unloaded. Of course this presupposes that the prayer if successful would constitute murder, which is subject to dispute.
9.5.2008 6:10pm
ShelbyC:
Couldn't you just pray for McCain to resign anyway?
9.5.2008 6:11pm
Asher (mail):
If it was indeed the case that someone prayed for something 100 days running, and got what he prayed for every day (setting aside his praying for things that obviously would have happened in any event), we'd have a very different world on our hands, which would pose all sorts of novel questions, both legal and otherwise.

Not necessarily. You might just have a very lucky man. Say he prays for rain one day, sun the next, rain, sun, snow, and so on. By the time you get to a hundred days running, of course, there's a one in billions chance of him always getting what he prayed for, but it's logically possible. Besides, he could form his reasonable expectation of efficacy on the basis of a shorter, more conceivable lucky streak - if you got whatever you asked for ten days running, and were religious, you'd probably start to think that prayer really worked.
9.5.2008 6:15pm
Snaphappy Fishsuit Mokiligon:
Yes, that was my point. Suppose on the 101st day the person doesn't die, and the man's prayers from then on are never "answered." It could be that he just had a really lucky streak of praying for things that would have happened anyway, however unlikely they were, or it could be that praying for death was a bridge too far for god and he lost whatever favor he once had. Either way, his death prayer is the equivalent of firing a gun he believes to be loaded. The only difference between this man and someone in our world who prays for McCain's death is the level of empirical evidence that justifies the belief that the prayer will be answered. But we wouldn't say that someone who has very very reliable evidence that a real gun is loaded is any less culpable for firing the gun in an attempted murder case than someone who simply believes without any evidence that the gun is loaded.
9.5.2008 6:31pm
Hoosier:
Man, I wouldn't want to be the prosecutor for this.

I would not have a . . . chance (What?!)
9.5.2008 6:51pm
Dilan Esper (mail) (www):
It isn't completely clear to me how the legal system would or should treat shooting at someone with a weapon that one hallucinates to be in one's hand.

Why? There's no actus reus if the weapon doesn't exist.

If you don't like that analogy, try this one. Suppose someone goes out on a snipe hunt with friends, not knowing that snipes don't exist. Can he be arrested for hunting without a license?
9.5.2008 6:54pm
Eugene Volokh (www):
David Schwartz: I think you assume the conclusion by saying, "If you complete a set of actions that you believe has a reasonable probability of effecting the death of the President, you have attempted to murder him." Say that you believe that asking the President to order the death of some terrorist has a reasonable probability of bringing this about (for instance, maybe you're an influential political leader), and say that it's not a crime for the President to order the death. You haven't attempted to murder anyone; you've only asked someone else to effect a noncriminal killing. Pretty much the same with prayer, I think.
9.5.2008 7:12pm
Dilan Esper (mail) (www):
The closest set of circumstances I can find in a quick search is State v. Smith, 621 A.2d 493 (N.J.A.D. 1993), which holds that an HIV-positive prisoner who bites a guard thinking that HIV can be transmitted that way commits attempted murder. The key passage is this one:

"Appellant makes much of the expert's testimony that there is only a 'theoretical possibility' of transmittal of the virus through saliva, but a 'theoretical possibility' is clearly a 'possibility,' or else the phrase has no meaning. So long as medical science concedes this 'theoretical possibility,' the jury was well within the evidence to consider the human bite of a person infected with the AIDS virus to be 'deadly.'"

The negative implication of this is that if there is NO scientific possibility that the defendant's actions could kill the victim, there is no attempted murder. That means actions that require the intervention of a supernatural being don't meet the actus reus requirement.
9.5.2008 7:22pm
tommears (mail):
I would have thought the distinction is obvious. To paraphrase Henry VII: "Will no man rid me of this meddlesome candidate" is incitation, and "God, please get rid of that wrinkly old white guy" isn't.
9.5.2008 7:27pm
tommears (mail):
oops...its Henry II not VII
9.5.2008 7:31pm
Eugene Volokh (www):
Dilan: I'm not sure that's right. Say I tried to poison you by feeding you rat poison, but I foolishly give you a rat poison that is not lethal to humans. There is no scientific possibility that these particular actions could kill you; yet I take it that I'm guilty of attempted murder, just as I would be if I shoot you with an unloaded gun (which is also scientifically certain not to kill you). That's why I think the mere inefficacy of prayer won't resolve this case.
9.5.2008 7:38pm
Bill Poser (mail) (www):
Dilan Esper,

I don't think that State v. Smith is on point. It is settled law, is it not, that a person who fires a gun with intent to kill is guilty of attempted murder even if the gun is empty and so is objectively incapable of killing? If State v. Smith were on point, it would contradict this principle. I suggest that what Smith is about is whether the saliva of a person with HIV is a deadly weapon.
9.5.2008 7:52pm
David Schwartz (mail):
Eugene Volokh: As I said, the President is a special case. I don't see why the legality or illegality of the agent's action has any bearing on the legality or illegality of your action.

For example, I could attempt to induce Chinese intelligence forces to kill an American overseas by giving them bogus information. Are you seriously arguing that the United States cannot criminalize this conduct (assuming I do it all from the United States) just because it's legal under Chinese law for their intelligence forces to kill someone?

What if I, from the US, hire a hit man from another country to kill you in an area that is lawless (say, on the Moon). In any event, it's legal for a bullet to kill someone. The bullet breaks no laws. So why can't I fire a gun at you? All I'm doing is making the bullet fly through the air? (Or are you arguing we can litigate whether God is like a human, like a bullet, or incapable of immoral acts? What if I ask the devil to do it?)

I don't find your arguments persuasive. I believe completed attempts of actions you believe will result in causing the death of the President can be prohibited, as this is a narrowly-tailored law to meet a compelling government interest. Any lesser law (such as those that protect mere mortals) would result in the President's protection being an issue at trial, which would be a disaster.
9.5.2008 7:53pm
Dilan Esper (mail) (www):
If State v. Smith were on point, it would contradict this principle. I suggest that what Smith is about is whether the saliva of a person with HIV is a deadly weapon.

That's correct. And a prayer is not a deadly weapon. That's what distinguishes it from an unloaded gun.

An unknowingly unloaded gun is, under a different set of factual circumstances, fully capable of killing someone. A prayer, by contrast, is a completely ineffective act.
9.5.2008 8:10pm
TCO:
God helps those who help themselves. I'm buying John Mac a duck hunting vacation with Dick Cheney (and a couple six packs) right after the Palin ticket wins.
9.5.2008 8:32pm
Asher (mail):

An unknowingly unloaded gun is, under a different set of factual circumstances, fully capable of killing someone. A prayer, by contrast, is a completely ineffective act.


Okay - how about firing a water pistol that you think is a gun and looks just like a gun? No matter what the factual circumstances, a water pistol can't kill anyone. But surely that's an attempt. At least in Britain it is - under section I(2) of the Criminal Attempts Act of 1981, the impossibility defense was for the most part legislated away*, and in Regina v. Shivpuri (1987), a Mr. Shivpuri was found guilty of an attempt to distribute narcotics when, in fact, all he'd done was import packets of harmless vegetable matter. A packet of harmless vegetable matter is, under no set of factual circumstances, capable of being a controlled substance (though I suppose you could counter and say if facts were different, the packet could be filled with something else); nevertheless, Shivpuri was found guilty. There are similar American cases - see Heng Awkak Roman, 356 F Supp. 434 (defendants thought they were doing a heroin deal, but the heroin had been replaced with washing powder).

* "A person may be guilty of attempting to commit an offence... even though the facts are such that the commission of the offence is impossible."
9.5.2008 8:41pm
Dilan Esper (mail) (www):
Asher:

Those cases are a little different, though, in that they involve government stings. If the government sells someone actual heroin, they can clearly arrest the person, so selling someone what the person believes to be heroin, indeed, what any reasonable person would believe under the circumstances to be heroin, would be indistinguishable. Indeed, it's worth noting that drug dealing offenses often don't even require a delivery-- merely CONTRACTING to purchase a large quantity of drugs is itself illegal.

Prayer is distinguishable from these cases because prayer is a completely ineffective act under any circumstances, and the act of prayer itself isn't illegal (unlike contracting to purchase drugs). So it can't be an attempt to commit some other crime (because of its complete ineffectiveness as an actus reus) and it isn't a crime itself.
9.5.2008 9:01pm
Asher (mail):
The British case wasn't a government sting. Shivpuri got sold fake stuff. And what about the water pistol?
9.5.2008 9:13pm
Hoosier:
EV: "That's why I think the mere inefficacy of prayer won't resolve this case."

But there is empirical evidence that poison and bullets kill people. The would-be assassin just overlooked a detail. There is no form of prayer empirically proven to kill. Thus no sense in which the intended murder would have succeeded under a different set of facts, if only done the "right way."

If I firmly believe that wearing an OSU sweatshirt to a Michigan game will kill all the fans in the Big House, and I knowingly decide to wear one there anyeay, have I committed a crime? Attempted genocide (of Wolverines)?

I'm semi-serious about this. Am I missing something?
9.5.2008 9:29pm
Hoosier:
Addendum: "(That's one reason we punish attempted killers even when their attempts were factually impossible, for instance because the gun is unloaded: We figure they are quite likely to try with a loaded gun next time.)"

The prayer equivalent of loading the gun next time is what?

The term "factually impossible" needs to be clarified. It is factually impossible to kill by shooting an unloaded gun, but not by shooting a gun. The specific circumstances of the general rule determine the possibility or impossibility.

With prayer? (And I don't mean theoretically. I mean as a matter verifiable by evidence that can be presented in court.)
9.5.2008 9:34pm
Dennis Nicholls (mail):
Actually this would be a better case for conspiracy IIRC my crim law class....

You need a really strong intent with more than one person and at least a hint of an overt act. I'd say group prayer may be that overt act.

But maybe these guys were just making a sick joke.

The joke would be on them if President-elect McCain dies before being sworn in. The XXV Amd. is unclear what would happen if a president-elect would die before taking the oath of office. Would the VP be sworn in, or would this get tossed back into the House of Representatives? After all, no living person would then have a majority of electoral votes for President.

I myself plead guilty of making a similar sick joke...
On many blogs, I've posted "and in other news, William McKinnley has selected the little-known Gov. Theodore Roosevelt as his running mate."
9.5.2008 9:47pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
neurodoc:
When my father was in medical school eons ago, they had a biochem professor they all detested. The fellow used to ride a bike around campus and one day as he went past, one student expressed the wish that said professor would fall off his damn bike and break his leg. Shortly thereafter, the professor did fall off his bike and break his leg. The student was a hero to his awestruck classmates. Should he have been prosecuted, though?
9.5.2008 9:53pm
dizzle (mail):
murder = homicide w/ malice aforethought
homicide = killing of a human by a human
god != human
9.5.2008 10:02pm
Katl L (mail):
Until last century, in rural Spain, people believed that if a woman shoe was buried , she wont fget married. A man was dropped by a woman, he buried one of her shoes and let everybody knew what he has done. When she knew falled death. A court presided by Jimenez de Asua ,one of rthe best criminal lawyers of thr xx century put him in jail for murder
9.5.2008 10:18pm
Hoosier:
Well, Heck, it's still like that here in Indianer. Not superstious, though. Just ain't gonna marry a girl what's only got one shoe.
9.6.2008 12:27am
Asher (mail):

If I firmly believe that wearing an OSU sweatshirt to a Michigan game will kill all the fans in the Big House, and I knowingly decide to wear one there anyeay, have I committed a crime? Attempted genocide (of Wolverines)?

The reason that that's such a strong counterexample is that you'd have to be insane. If there were a history of people believing for thousands of years that wearing magic sweatshirts made people die, I think it's actually a close question.
9.6.2008 12:44am
Richard Aubrey (mail):
Asher.
The problem is...?
Actually, it won't kill many Wolverines, if by that you mean undergrads. They spend their free time looking for a genuine professor and they can't afford the ticket price, anyway.
9.6.2008 12:52am
Hoosier:
"If there were a history of people believing for thousands of years that wearing magic sweatshirts made people die"

Well, OK. So t-shirts then. Or thongs. What ever.
9.6.2008 12:59am
Raymo Smookels:
Man, just the other day I had a fight with my cousin's adoptive sister, and then she just went into a coma and started coughing up cherry blossoms. I hope I don't get in bad with the law.
9.6.2008 1:06am
Dilan Esper (mail) (www):
The reason that that's such a strong counterexample is that you'd have to be insane. If there were a history of people believing for thousands of years that wearing magic sweatshirts made people die, I think it's actually a close question.

Actually, the only possible way that gets one to an insanity defense is if it is shown that a person doesn't know "the nature and quality of his or her acts". In other words, if you crush someone's head thinking that you are crushing some ice for your mixed drink, you are insane.

But the person who wears the OSU sweatshirt knows he or she is wearing one. He or she just believes that it has an effect that it doesn't actually have, just like a person who is praying. And neither of those things meets the M'Naughten test.
9.6.2008 1:38am
R. Gould-Saltman (mail):
Wm13 and XXX:

Sorry, the blog post linked from the original post includes:

"So here is my three point plan:
1. Vote Constitution Party. (I vote my conscience and cannot support McCain even with Palin.)
2. Hope and pray for McCain/Palin to win. (I am an idealist, but also a realist!)
3. Pray for John McCain's salvation and pray specific imprecatory prayers if he fails to pro-actively defend the sanctity of human life. (Google The Forerunner's articles on Imprecatory Prayer if you don't understand this.)"


Now, as the nice religious nut-ball urges, take a look at what he means by that "Imprecatory Prayer" jazz. Pretty clearly: "God, make him think right, or (ahem) 'remove' him".
9.6.2008 2:56am
Asher (mail):
True, the sweatshirt-wearer isn't legally insane. Now that I think about it, I don't know why he hasn't attempted murder. Suppose that you, by virtue of misinformation, come to believe that a certain mushroom is poisonous, and you put it on someone's pizza. But it's a perfectly edible mushroom. Now that clearly seems like an attempted murder. And it isn't the case that, if the circumstances were different, the mushroom would've proven fatal. Now you can say, if it were a different mushroom, it might have, but I don't see why the fact that there are other mushrooms that are poisonous is relevant. In a world where there were no poisonous mushrooms, it'd still be an attempted murder, wouldn't it? The only difference between the mushroom and the sweatshirt is that the one hypo's very conceivable, and the other isn't.
9.6.2008 4:07am
Hoosier:
"True, the sweatshirt-wearer isn't legally insane. "

Even if it's OSU?

"The only difference between the mushroom and the sweatshirt is that the one hypo's very conceivable, and the other isn't."

Also, sweatshirts taste lousy in pasta sauce--as I learned the hard way.
9.6.2008 7:19am
BillW:
'God answers all prayers, but sometimes the answer is "No".'

In Lois Bujold's fantasy novel, The Curse of Chalion, the gods would sometimes answer this sort of prayer, but the price would be the life of the petitioner as well.
9.7.2008 3:40am
james (mail):
Doesn't US law make specific exceptions for "Act of God"? Taken to the extreme, a prayer answered by God that resulted in a death would not be considered attempted murder. A prayer answered by "some other" would be.
9.8.2008 7:10pm