§ 27.03 THE ROLE OF "SOCIAL HARM" IN AN ATTEMPT: "SUBJECTIVISM" AND "OBJECTIVISM"

• Jurisdiction: United States

§ 27.03. The Role of "Social Harm" in an Attempt: "Subjectivism" and "Objectivism"³³

According to Austin, "[g]enerally, attempts are perfectly innocuous, and the party is punished . . . in respect of what he intended to do."³⁴ In other words, a person who attempts a crime is punished for possessing a mens rea; no harm is required.

On its face, Austin's perception seems correct. Many incomplete attempts, and even some complete but imperfect ones,³⁵ appear to be harmless. For example, suppose that D1 lies in wait with a loaded gun outside V1's house, intending to kill V1 when she returns home. Just as V1 shows up, and D1 points the gun at V1, a police officer drives by and arrests D1 for attempted murder. Or, suppose that D2, intending to kill spouse V2, who is asleep in bed, loads a gun in the living room, enters the bedroom, points the gun at V2 and pulls the trigger, but the gun fails to fire due to some malfunction. V2 sleeps through the attempt, and goes on with his life oblivious of D2's efforts. D1 and D2 are guilty of attempted murder, but V1 and V2 have suffered no apparent harm.

But this does not end the analysis. As earlier defined,³⁶ there is social harm whenever a person "negates, endangers or destroys" an individual, group, or state interest that is socially valuable. When a person lies in wait in order to kill another, or pulls the trigger of a gun, she endangers another person's bodily security, jeopardizes the interests of loved ones of the intended victim, and impairs society's interest in a safe community in which to live. Likewise, when a person comes close to violating one of society's moral and legal commandments, she tears the fabric of society, if only slightly. Contrary to Austin's assertions, therefore, criminal attempts are not innocuous; criminal attempts do cause social harm, even if sometimes only intangible harm.

Notwithstanding the deficiency, Austin's statement serves as a useful starting point for considering two conflicting perceptions of the proper roles of social harm and personal culpability in criminal attempt law. The competing philosophies may be characterized as "subjectivism" and "objectivism." As will become evident in later sections of this chapter, the criminal attempt provisions of the Model Penal Code are largely based on subjectivist conceptions of inchoate liability, whereas the common law of attempts includes many strands of objectivist thought, as well as some subjectivism.

Subjectivists assert that, in determining guilt and calibrating punishment, the criminal law in general, and attempt law in particular, should focus nearly exclusively on an actor's subjective intentions (her mens rea)—her choice to commit a crime—rather than on her conduct, which may or may not result in tangible injury. The subjective intentions of an actor simultaneously bespeak her dangerousness and her bad character (or, at least...