Chapter 6

ATTEMPT

Introductory Note: Even if a person does not complete the commission of a substantive crime, she can in some instances be convicted of the separate crime of “attempting” to commit that substantive crime. The most important elements of liability for attempt are: (1) To be liable for attempting crime X, D must have had the intent to do acts which, if they had been carried out, would have resulted in the commission of crime X; (2) Thoughts alone won’t suffice—D must have committed some act in furtherance of the crime (though exactly what types of act will suffice varies among jurisdictions); and (3) The claim that D couldn’t possibly have succeeded—that is, the defense of “impossibility”—usually fails.

I. INTRODUCTION

A. Concept of attempt generally: It has long been recognized that there are sound reasons for punishing a person who tries to commit a substantive crime and who, for reasons beyond his control, comes close to succeeding but in the end fails. For instance, if A shoots at B with an intent to kill him, and he fails only because his aim is faulty, A is obviously a dangerous person whom it is desirable to punish. Otherwise, he may try again, either against B or against someone else.

1. Need to have police intervene: Furthermore, if attempts were not punishable, the police would be severely impeded in their ability to stop the commission of substantive crimes. Suppose, for instance, that the police knew that A would try to kill B. If they were forced to wait to see whether A were successful, and allowed to arrest him only if he were, their prevention powers would obviously be destroyed. Furthermore, their prevention powers would even be severely diminished under a rule of law that allowed them to arrest A for attempted murder after he shot at B and missed, but not to arrest him before he pulled the trigger for the first time.

a. Social interest: Therefore, there is a strong social interest not only in making unsuccessful efforts to commit a substantive crime criminal in themselves, but also in moving forward in time the point at which the planning and preparation of a crime becomes a punishable attempt.

2. Countervailing issues: On the other hand, if unsuccessful efforts become criminal too soon in the continuum between conception and execution, undesirable effects may also occur:

a. Punishment of innocent: First, since the external evidence that someone is planning a crime is often ambiguous, there is a risk that this evidence may be wrongly interpreted, and will lead to the conviction of persons who had no intention at all of ever executing a substantive crime.

b. No chance for abandonment: Secondly, even assuming that the person in question did have an intention to commit a crime, by making his conduct punishable too early, we may be punishing someone who ultimately would have abandoned his efforts, perhaps before he even came reasonably close to committing the crime. We would thus run the danger of punishing him for little more than evil thoughts; as noted supra (p. 15), punishment for thoughts alone is not a desirable feature of a criminal justice system.