“The Strange Case of the Threatening Hypothetical”, Continued: The Verdict Is In!

The Victim

Lawrence Connell, the Widener School of Law criminal law professor placed on administrative leave for using the school Dean in a “violent scenario” to illustrate legal principles to his class, has given a revealing and clarifying interview to the National Association of Scholars website.

This section is most relevant to his current plight, and the fairness of complaints leveled against him by some of his students. It’s also about one of my favorite topics in criminal law, attempt law, which has a significant ethical component, as you will see. But the main point of interest is that includes one of the supposedly racist, sexist, threatening hypotheticals he used.

Q: Can you give me an example of a hypothetical you might have used in class, to which the students who complained might have been referring? Can you describe the context in which you would have used it?

Prof. Connell: Yes, here is one: The Dean has threatened to fire me if she comes to school one more time and finds that I have parked in her designated parking space. Upset about the possibility of losing both my job and the parking space, I bring my .357 to school, get out of my car, put the .357 into my waistband, walk to the top floor where her office is located, open the door to her office, see her seated at her desk, draw my weapon, aim my weapon, and fire my weapon directly into what I believe to be her head. To my surprise, it’s not the Dean at all, but an ingeniously painted pumpkin — a pumpkin that has been intricately painted to look like the Dean. Dick Tracy rushes in and immediately wrestles me to the ground. I am charged with the attempted murder of the Dean.

The hypothetical raises various issues about attempted crimes that might entail discussion that spans more than one class. Some of the classroom discussion in the first, for example, will address the two basic philosophical problems of why we punish attempts, which are failed efforts at crime, and why we punish attempts less than successfully completed crimes.

A retributive argument, on the one hand, is that the attemptor has demonstrated his moral culpability by his bad conduct, and the degree of his punishment should not depend on a fortuitous turn of luck. On the other hand, a retributivist might argue that punishment in the absence of harm is unjust. For retributive purposes, has Connell demonstrated his moral culpability by shooting what he believes to be the Dean? Or does the fact that he merely destroyed a pumpkin suggest that his punishment would be unjust?

A utilitarian argument is that the attemptor’s actions demonstrate his dangerousness. His dangerousness having been established, the attemptor needs to be incapacitated or else he will try again until he succeeds. On the other hand, a utilitarian might argue that imposing punishment for conduct short of causing actual harm will cloud the otherwise bright line between conduct that is punishable and not punishable. Certainty of punishment enhances deterrence, while reducing certainty detracts from it. Should Connell be punished in order to prevent him from completing his intended result? If Connell’s shooting a pumpkin is considered attempted murder, then where do we draw the line?

Attempt law also raises questions about the role of law enforcement in a free society. We want police to capture the people who cause harm, yet we also want police to protect us before harm can occur. On the one hand, a free society does not want punish people who only have bad thoughts or criminal tendencies. On the other hand, we do not want the police to wait so long to intervene that the risk of harm may become inevitable. If we allow law enforcement to intervene before harm is committed, where do we draw the line between conduct that is punishable and conduct that is not?

Now we can, with this new information, clarify several aspects of the incident that were unclear before we knew the tone and content of the actual class hypo. The verdict:

1. This is a legitimate, well thought out hypothetical.

2. There is nothing violent about it.

3. There is nothing sexist or racist about it.

4. Professor Connell is being unjustly persecuted by political correctness zealots.

5. Dean Ammons is both humorless, irresponsible and devoid of common sense and fairness to allow this assault on academic freedom to proceed.

6. I wish I had Prof. Connell for Criminal Law. (Not that my good friend Prof. Heathcliff  Wales, still teaching at Georgetown Law Center, wasn’t great; he was.)

7. Widener University School of Law, its Dean, faculty, and some of its students, have  thoroughly disgraced themselves.

But the best verdict on the hypothetical came from George Washington Law Professor Orrin Kerr, who posted this same section of the interview on The Volokh Conspiracy and wrote:

“Reading over the hypo, I think the conclusion is obvious: Professor Connell has a deep hatred of pumpkins.”

4 thoughts on ““The Strange Case of the Threatening Hypothetical”, Continued: The Verdict Is In!

  1. I will be sure to tell my advisees that they should be particularly diligent in their Stage Makeup classes, as there appears to be a developing cottage industry in making pumpkins look like law school deans, and they could probably make a few bucks in the decoy business.

    More seriously, while I certainly think that Mr. Connell is probably the truly aggrieved party here, I don’t think you can say that this interview proves anything. Let’s say, for the sake of argument, that Mr. Connell actually is guilty of what his accusers claim. But he’s no idiot. When asked for an example of the kind of scenario he creates (a question he surely anticipated), he’s not going to choose one that really is violent or racist or sexist. That would make him look bad. So he chooses one that isn’t any of those things, but that he thinks he could fool the readers of a conservative website into thinking sounds like something that might get liberals upset. (I know, I know, a bit of a conspiracy theory, but I confess that the fact that he went running off to do an interview with the NAS actually makes me less likely to believe him, despite the fact that the hypothetical is, in fact, apt. One of my standard mantras is “if you have to tell me, it ain’t so.” He’s telling me.)

    Finally, a note on logic. All PC zealots are idiots, but not all idiots are PC zealots. Those who are accusing Mr. Connell appear to be idiots. That doesn’t tell us what their motive is.

  2. Though you have to say, Rick—if that was a made up hypo different from the one he used, then he’s one quick study. Not only does it fit the broad description given by the students, but it also is a terrific way to raise the various attempt issues. We can’t say he proved anything, perhaps, but as the actual lecture wasn’t recorded and its his word against the students’, I’d say he’s awfully credible.

    True, regarding the idiots…though their methodology is PC based. I suppose this doesn’t make them PC zealots, just PC dabblers perhaps. That’s faint praise at this juncture.

    • The point I was making is that we’re really not talking about a single incident here: one thing both sides agree on is that Mr. Connell uses the kind of hypothetical situation presented here all the time. That said, he’s not going to go public with the most potentially offensive thing he’s ever said in class, but rather with something innocuous which bears enough resemblance to the accusation to seem to an audience already predisposed to believe him (the NAS isn’t exactly a left-wing organization) to be the kind of thing at which that THOSE OTHER GUYS unreasonably take offense.

      I’m also struck by the question: “a hypothetical you might have used in class, to which the students who complained might have been referring.” Chances are pretty good Mr. Connell knows exactly what incident prompted the complaint, either on its own or as the proverbial last straw. But both he and the sympathetic interviewer imply that the pumpkin story is that scenario without actually saying so. That’s a lawyerly tactic that sets off alarm bells in my head.

      I’d like to hear from the complaining students before making a final decision, in other words, but (as you know) I’m leaning pretty clearly in your direction.

      • I’m grateful for the point, Rick, and it’s important to keep it in mind. The way the question was posed was indeed odd. I’ve just been trying to think of a plausible way an experienced, apparently sane law professor like Connell could use the Dean in a scenario where she was the victim and he was a murderer that could justify the complaint, unless he went all wild-eyed and started laughing maniacally, or described some horrific sexual-sadistic torturing of the Dean, drooling all the while.

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