Here, then, the three puzzlers:
As no doubt you may not be surprised to learn "knowledgeable legal theorists have long recognized that the law of attempts provides a bumpy route by which the deepest and most central issues in criminal law can be approached." Less than two centuries ago the common law of England made it a criminal offense to attempt to commit a crime. As with most crimes, attempts have both actus reus and mens rea components. The mens rea requirement is fairly straightforward - or so it often seems: one must have intended to commit the crime that one is charged with attempting. But what level of intent, or mens rea, should be required for a criminal attempt? And how objective or how subjective should it be? In attempt cases the actus reus requirement seems to be more complex. One difficulty is how to decide how much a defendant has to do, how far does he have to go in order to have "made the attempt." At what point does the agent's acts move beyond "mere preparation?"
And there is yet another curiosity about attempts: should persons be punished less severely for a criminal attempt than for a completed crime and if so, why? Say two "hit" men are out to kill you. One misses you by inches (say, you duck) and the other shoots and kills you. Both really, really tried to kill you and both acted with equal malice aforethought, i.e., with equally evil intent. To the extent that we are eager to puinish the wicked and deter the dangerous, both "hit" men would seem to deserve the same punishment, no?
But the stickiest problem in the law of attempts by far is posed by the following question: "If what you are trying to do would constitute a crime, if completed, should you be convicted of attempt if the crime was impossible to commit?" And if so, should it matter why the crime could not be committed? One obvious sort of reason for the "impossibility" involved here is that the facts might not be as the defendant took them to be.
Another reason might be that there is no law against what the defendant attempted to do and so it was "legally" impossible, as it were, for him to have committed a crime, even if he had completed what he was doing. The grounds for these distinctions, however, are not always all that clear.
Imagine that you have risen through the ranks of the law and that you were recently appointed by the new President of the United States to be a Justice on the U. S. Supreme Court. The following case has come before the Court, over which you now preside as Chief Justice:
Oviedo arranged to sell a pound of heroin to a man he met in the street. They agreed to meet some time later to consumate the deal. When they met the second time, Oviedo gave the substance to this fellow and asked for his money. The man, however, said he would have to test it first. A field test was run with a positive result. The man turned out to be a narcotics agent. Oviedo was placed under arrest.
Shortly after his arrest, a search warrant was issued for Oviedo's apartment. Oviedo's apartment was turned upside down and two pounds of a similar substance was found stashed in a television set.
This substance and the substance sold to the narcotics agent on the street were sent to the crime lab for chemical analysis. The substances were not heroin, but procaine hydrochloride, an uncontrolled substance. Since the substance he tried to sell to the narcotics agent and the substance in his apartment were not heroin, Oviedo could not be charged with distributing heroin. He was, however, charged with attempting to do so.
At his trial, Oviedo took the stand and declared that he knew all along that the substance was not heroin. At the encouragement of several of his buddies, he said, he had decided to "put one over" on this fellow, to "rip him off." A quick way, he said, to make a few thousand "bucks." Clearly, Oviedo is not guilty of distributing heroin, but can he, should he, be found guilty of attempting to distribute heroin?
This case has come to the Court from the United States Court of Appeals, 5th Circuit. Is this a case the Court should review? If so, how will you decide? And more importantly, under what circumstances and conditions ought a person be found guilty of an attempt to commit a crime?
Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003
Philosphy of Law