§ 27.05 Mens Rea of Criminal Attempts
[A] General Rule
It is sometimes said that the mental state required for a criminal attempt is "the intent to commit some other crime."63 This is an accurate statement, as far as it goes. It is more complete to say, however, that a criminal attempt involves two "intents": the actor (1) must intentionally commit the acts that constitute the actus reus of an attempt (as the latter concept is explained in Section 27.06), that is, she must intentionally perform acts that bring her in proximity to commission of a substantive offense; and (2) she must perform these acts with the specific intention of committing the target crime. As the latter intent suggests, an attempt is a specific-intent offense,64 even if the target offense is a general-intent crime.
To see how the dual "intents" work, suppose that D, a hunter, fires a gun in the woods, wounding V. D is guilty of attempted murder of V if: (1) she intentionally pulled the trigger of the gun (as this would satisfy the first "intent" required above); and (2) she did so intending to kill V (the second, and specific, intent). If D intentionally pulled the trigger of the gun, but she did not intend to kill V by her intentional acts, then D is not guilty of attempted murder.
Although this rule seemingly is straightforward, various issues arise that require clarification.
[B] "Result" Crimes
[1] In General
A "result" crime is an offense defined in terms of a prohibited result. For example, the offense of murder prohibits the result of the death of a human being at the hands of another. For crimes of this nature, the ordinary rule is that a person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with the purpose65 of causing the unlawful result.
Because of the specific-intent nature of a criminal attempt, the prosecutor in an attempt prosecution is sometimes required to prove that the actor possessed a higher degree of culpability than is required to commit the target offense. For example, if D blindfolds herself and fires a loaded pistol into a room that she knows is occupied, she may be convicted of murder if someone is killed. Such a killing, although unintentional, constitutes malice aforethought (the mens rea of murder), because it evinces a reckless disregard for the value of human life.66 However, if D's reckless act does not kill anyone in the room, almost all jurisdictions would rule that she is not guilty of attempted murder67 (although she could be guilty of a statutory offense, such as reckless endangerment): D purposely aimed and fired the gun—she intentionally performed the acts that brought her close to taking human life—but she lacked the specific intent to kill anyone in the room.
Similarly, if D intends to severely injure V, D's state of mind constitutes malice, so she may be convicted of murder if she unintentionally kills V. If V does not die from the attack, however, D is not guilty of attempted murder, as she lacked the specific intent to kill.68
[2] Rationale of Intent Requirement: Does It Make Sense?
Why does the law not punish unintentional "attempts"? One answer could be purely etymological: The word "attempt" means "to try," which in turn means "to seek to do." This basis for the intent requirement, however, cannot take us very far. If the only obstacle to permitting guilt for unintentional "attempts" is the meaning of the word "attempt," legislators can simply change the name of the crime. The more important question is whether the requirement of specific intent makes good penal sense. Should the law be changed, for example, to permit the conviction of a person for an attempt as long as she acts with the same level of culpability regarding the prohibited result as would be sufficient to convict her for the completed offense? Or why not at least permit conviction for criminal attempts if the actor's conduct constitutes recklessness?
Those who defend the intent requirement sometimes focus on the supposed heightened dangerousness of intentional wrongdoers. One who intends to commit an offense and takes substantial steps in that direction, but who fails in its commission or is required temporarily to desist, remains an ongoing threat, i.e., "the actor's unspent intent is itself a source of harm independent of his conduct."69 The danger is that after the failed attempt or involuntary desistance, the actor will try again to commit the crime. In contrast, one who acts recklessly or negligently is less apt to represent an ongoing threat. For example, one who drives recklessly or negligently in order to get to the airport for a flight, but who fortunately kills nobody in the process, has no "unspent" intent to kill that is apt to recur. Although the law may choose to punish the driver for her reckless driving, her conduct should not be equated with an attempted—intentional—harmdoer.
Critics of the intent requirement contend that the policies underlying the target offense should apply to criminal attempts. They "emphasize[] the illogic of requiring the state to prove an intent for successful prosecution of an attempt to commit a crime when no such degree of proof is necessary for successful prosecution of the completed crime."70 For example, if the common law or a legislature...
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