Criminal Attempt: Thinking It Through

1. . Subjective (subjectivist) v Objective (objectivist) Approaches: .
Whatever else may be true in a given criminal case, what a defendant had in mind at the time that the defendant committed the alleged criminal act matters. It matters to our ascertaining the defendant's guilt or innocence. Indeed, we might say: "It ought to matter," since our sense of fairness, our sense of whether it is right or just to punish someone for criminal wrongdoing, is intimately bound up not only with our determining whether a person did or did not do the "dastardly" deed with which he or she is charged, but also whether the person so charged had a "guilty" mind, a mens rea or a criminal intent. And we might say "the innocence or criminality of the intent in a particular act generally depends on the knowledge or belief of the actor at the time. An honest and reasonable belief in the existence of circumstances which, if true, would make the act for which the defendant is prosecuted innocent, would be a good defense." (People ex rel. Hegeman v. Corrigan (195 N.Y. 1, 12) emphasis added.). Are you inclined to adopt a "subjective" standard of reasonableness or an "objective standard?

2. The Line between Preparation and Attempt:
a. The First Step: Mere Preparation
(Thinking About Doing Some Bad Act)
b. A Substantial Step
c. The Ordinary Meaning of "Try":
The Point At Which One Has Tried ("Have You Tried It Yet?")
d. The Step Licensing Police Intervention
e. The Step Introducing Proximate Danger
f. The Last Step: The Completed Crime

3. . Dangerousness and Wickedness: : "Why should the accidental fact that an intended harmful outcome has not occurred be a ground for punishing less a criminal who may be equally dangerous and equally wicked?" (H.L.A. Hart, Professor of Jurisprudence, Oxford University):

4. . What Makes Something a Crime? The Traditional and Modern Approaches to Punishment: :
Why should consequences (actual harm done) matter in defining a criminal offense? The traditional approach focuses on the actual harm suffered by the victims in defining the crime of the offender. The modern approach concerns itself with the agency of the defendant - the degree to which the actor was able to control what he did - rather than with the actual harm or suffering caused. It is a matter of chance, the modern approach opines, whether a shot intended to kill someone actually hits its target or not.

5. . Why Do We Punish Completed Crimes More Severely Than Attempts? :
a. John aims to kill Alice with the following four potential outcomes; (1) Alice dies from John's shots (2) Alice does not die, but is wounded (3) John misses Alice completely, (4) Nothing happens, John has used a stage prop.
b. Larceny 1 through 5 in the State of New York: Stealing a suitcase, believing it contains x amount of dollars, but that turns out to be empty.
c. Striking a blow: misdemeanor, Class D and Class B felonies: physical injury, serious physical injury, and death.

6. . Attempts and the Role and Significance of Criminal Responsibility Generally: :
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?

7. . The New York State Statute: :
The New York penal statute making attempts criminal would seem to call for conviction in the voodoo case, convicting the poor fellow of attempted murder. Does this seem intuitively fair or just? Is there something wrong or missing from the New York statute? The New York statute appears - on its face - a bit simple-minded and seems to make conviction all too easy. The New York position as expressed in the court opinions and the statute is that a defendant is guilty "so long as the 'crime' that was attempted 'could have been committed had the attendant circumstances been as [the defendant] believed them to be." On this view the innocuous character of the action (i .e. sticking pin's into a doll), innocuous in the sense that it could not constitute a crime under the actual circumstances, will not (cannot) rescue the defendant from an attempt conviction, if the defendant believed the circumstances were otherwise, and had the defendant's belief been correct, what the defendant set out to do would constitute a crime. This opinion appears to exlude some of the more obvious cases of legal impossibility, but allows far too many alleged attempts like the case of the voodoo practioner.

8. Amending the New York State Statute:
The Model Penal Code, in recognition of this very problem with the New York statute and similar efforts to solve the impossible attempts dilemma, gives a court the power to dismiss a prosecution or decrease the penalty if "the particular conduct charged to constitute a criminal attempt . . . is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger." Section 5.05 (2). This (unfortunately) commends the matter to the discretion of a judge; it is not a statement of a rule of law; but it does provide an avenue for ruling out such cases as the one of the voodoo practioner. A different approach is that taken by the Minnesota Criminal Code which states an exception to its rule where the "impossibility would have been clearly evident to a person of normal understanding." Minn. Stat. Ann. 609.17.2 A similar solution might propose that a defendant be guilty of attempt only when "the defendant purposely does or omits to do anything that, under circumstances as a reasonable person would believe them to be, is a substantial step in a course of conduct planned to culminate in the commission of a crime." See pp. 667-8 in the Philosophy of Law book.

9. . Mistaken Belief Cases:
a. Spooning sugar out of an arsenic box into Alice's tea, buying goods under the mistaken belief that they are stolen, smuggling lace under the mistaken belief that it is subject to a duty.

10. . Factual v. Legal impossibility: :
I mentioned earlier that the New York statute along with other similar principles to deal with the attempts dilemma would seem to preclude (at least) some of the more obvious cases of legal impossibility. I say "would seem to preckude some of the more obvious cases" because the distinction itself, between factual and legal impossibility, is so hopelessly unclear that even to identify an "obvious" case of legal or factual impossibility is not without its prooblems.

11. . OVIEDO and the "Umbrella-Type" Cases:
Criminal attempts' cases require judges and juries to distinguish, somewhat carefully, between preparation and actual attempt. The distinction rests in part on the notion that some substantial step or set of steps be taken towards the commission of a crime. But it also requires that the step at the same time be "strongly corroborative of the agent's criminal purpose." Why? Why is this, might this, be important?

Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003

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