CHAPTER 12

Attempt

OVERVIEW

Not every criminal succeeds at crime. Some try their best but fail; others may change their mind and stop short of their initially intended goal. Some are even caught before they can complete their crime. Attempt punishes offenders who intend to commit a crime (referred to here as the “target” crime) and act to implement that intent, but do not achieve their goal.

Attempt is an important law enforcement tool. Police can prevent crime by arresting an offender before he actually commits his target crime. (This is why attempt is sometimes called an inchoate or uncompleted crime.) Attempt also enables the criminal justice system to punish individuals who have acted on their criminal intentions and are dangerous.

Attempt is a crime of recent origin in the common law. Initially, it was usually a misdemeanor. Today, the seriousness of an attempt and its punishment generally depend on the seriousness of the crime attempted. Attempt often carries a lighter penalty than the target crime because the offender has done less harm than a successful criminal. However, except for capital offenses and felonies of the first degree, the Model Penal Code punishes attempt just as severely as the crime attempted because it considers an unsuccessful criminal just as dangerous as a successful one.

If an offender successfully completes the target offense, he cannot also be convicted of an attempt. Attempt is a lesser included offense of the crime attempted and will merge if the prosecution proves the completed offense.

DEFINITION

In general, attempt punishes a defendant because he intended to commit a particular crime and took a significant step to commit it. Most jurisdictions have a single attempt statute phrased in general language that is used to prosecute all attempt crimes. (Otherwise, the legislature would have to enact a separate attempt provision for each substantive crime, creating a much larger and more cumbersome criminal law.) Because this single statutory definition of attempt must be used for so many target crimes, legislatures usually use very broad and abstract language. As a result, many state statutes do not define attempt very carefully, and often courts must interpret these laws to provide a more useful legal definition.

Some state laws make what would ordinarily be considered an attempt into a completed offense. For example, burglary is a form of inchoate crime because it punishes conduct that is preliminary to the commission of the real criminal goal. Thus, a typical burglary statute proscribes “entering a building with intent to commit a crime against a person or property therein.” Many states push the threshold of criminality back even farther. They prohibit the mere possession of burglar tools, even though the defendant has not used the tools to enter a building, let alone commit a crime against person or property inside. Other statutes define assault as “an attempted battery.” Thus, trying to punch someone and missing may be punished as a completed assault rather than an attempted battery.