§ 27.04 Punishing Attempts: Why, and How Much?

§ 27.04 Punishing Attempts: Why, and How Much?⁴⁶

[A] Rationale for Punishing Attempts

[1] Utilitarian Analysis

Professor H.L.A. Hart has written that "[i]t is not obvious . . . on some versions of utilitarian theory, why attempts should be punishable, as they are, in most legal systems."⁴⁷ After all, an attempt is merely conduct targeted at commission of a substantive crime. Those who set out to commit a crime expect to succeed, rather than fail. Therefore, any deterrent effect of threatened punishment emanates from the target offense itself; the penalty threatened for an attempt has no additional influence. As it is inefficacious, the reasoning goes, it should not be inflicted.

As Hart has demonstrated, this utilitarian argument is fallacious. First, a person may assume that if she is successful in her conduct she will avoid detection, so she will be willing to risk the penalty for the targeted crime. On the other hand, she may figure that if she fails in her attempt it will be because she executed the crime poorly, in which case her poor execution may result in arrest. Therefore, she may be deterred by the punishment imposed for an attempt.

Second, applying subjectivism,⁴⁸ anyone who attempts to commit a crime is dangerous. Whether or not she succeeds in her criminal venture, she is likely to represent an ongoing threat to the community. Therefore, her incapacitation and/or rehabilitation is justifiable, even if she fails in her criminal plans.

Third, criminal attempt laws serve a valuable preventive law enforcement purpose: If there were no inchoate offenses in a penal code, police officers would lack legal authority to stop criminal activities before they are consummated.

[2] Retributive Analysis

Punishment of attempts makes sense under retributive theory, although retributivists differ in their basis for defending attempt laws. Some retributivists focus on the culpability of criminal attempters. These culpability-retributivists argue that a person who, for example, shoots but misses her intended victim is as morally culpable as one who succeeds in her endeavor. After all, she has done everything in her control to consummate the target offense. The only difference between her and the successful wrongdoer is her bad aim or the fortuity of the victim's movement. The attempter, therefore, deserves to be punished.

A second group of retributivists, harm-retributivists, focus instead on the harm caused by an attempter. A person who attempts to commit a crime, by her actions, endangers the community; she "disturbs the order of things ordained by law."⁴⁹ By disturbing the public's repose and causing any other social harm that flows from the attempt, "punishment is necessary so as to restore, at least symbolically," the public order.⁵⁰

[B] Less or Equal Punishment?

[1] Overview to the Issue

Once it is determined that inchoate conduct should be punished, the question turns to one of grading. At common law and in most jurisdictions today, an attempt to commit a felony is considered a less serious crime and, therefore, punished less severely, than the target...