Attempt

Why should the criminal justice system trouble itself to prosecute and punish persons whose conduct has not actually harmed other individuals or society generally? The question is important not only for appreciating the theoretical underpinnings of attempt crimes but also for understanding the various rules that govern the scope of attempted liability under prevailing legal doctrine.

For those modern theorists who view the criminal process as centered on a principle of retaliation for damage inflicted on society, punishment for attempt must remain a mystery or, perhaps, an unjustified aberration. Some writers, such as Lawrence Becker, have suggested that the attempt does actually injure society because the very real threat of harm upsets the social equilibrium and gives rise to a sense of tension or disorder (pp. 273–276). This insight applies particularly to situations involving highly dangerous and widely observed threats. The notion does not, however, afford a fully satisfying explanation for attempt liability. The importance of punishment in attempt cases usually seems much more closely tied to the gravity of the threatened harm than it is to an elusive "actual" harm associated with a disturbance of the social equilibrium.

Attempt liability therefore seems more plausibly explained, and justified, by reference to the forward-looking purposes of punishment—deterrence of future crime, restraint of the dangerous offender, and rehabilitation. The deterrence justification has been somewhat controversial and remains perhaps only a subsidiary justification for attempt liability. Some scholars suggest that punishing attempts cannot add significantly to the deterrent efficacy of the criminal law, because the person punished was in any event willing to risk the sanction authorized for the completed crime, which by hypothesis he intended to commit (Model Penal Code, 1960, commentary on § 5.05: Michael and Wechsler, pp. 1295–1298). The point cannot, of course, hold true for those crimes that, when successfully committed, are likely to go undetected (a "perfect" murder) or unpunished (treason is the classic example). Putting aside these relatively unusual examples, there remain many recurrent situations (such as "victimless" crimes investigated by police decoys), in which the penalties applicable to an attempt could significantly affect the calculus of risks involved in a given criminal plan (Schulhofer, pp. 1538–1539).

Restraint and rehabilitation appear to be the principal functions of punishment for attempt. A criminal attempt manifests a disposition toward dangerous behavior that often warrants confinement of the offender to protect the public and to permit rehabilitative efforts if possible. The man who shoots to kill but misses might in a sense be less dangerous than one who kills on the first shot (because the latter may appear a more skilled marksman), but both pose substantial threats to society. Indeed, the man whose attempt has failed may actually be more dangerous, since if not restrained he might try again to harm the intended victim.

Practical considerations of law enforcement reinforce these broad concerns of penal policy. Police on patrol should have power to investigate suspicious activity and, if possible, to prevent injury from being inflicted. If an officer observes someone about to commit a crime, he can warn the individual and, under some circumstances, detain him temporarily, but the officer would have no power to arrest the person unless there was probable cause to believe that a crime had already been committed. The law of attempts and related attempt-like crimes permits police officers to intervene effectively in potentially dangerous situations before serious, often irreparable, injury has occurred.

This "early intervention" function in attempt law draws attention to the dangers that accompany a vigorous extension of criminal liability for attempts. The law of crimes must not only provide for punishment when useful and otherwise justified, but must serve to safeguard from punishment those individuals whose behavior does not warrant criminal sanctions. This latter, safeguarding function has been associated with a tradition of limitations on the proper scope of criminal responsibility, including two notions particularly relevant here—reluctance to impose criminal liability in the absence of personal culpability, and an insistence that the behavior subject to criminal sanctions be clearly specified by standards that are reasonably ascertainable in advance. Both of these limiting notions can be infringed by expansive liability for attempts.

The culpability notion limits punishment to those whose conduct is morally blameworthy, in the sense that they have consciously chosen to do an act that society regards as wrong. Although the criminal law sometimes departs from the culpability requirement (strict liability offenses are an example), there is usually a sense that such departures are at best unfortunate and narrowly circumscribed exceptions. A penal law that authorized restraint and rehabilitation of any person identified as dangerous to society would in effect create a general power of preventive detention, in direct violation of the culpability requirement. Yet is this not precisely what occurs in the law of attempts? Attempt doctrine can escape the moral objections to general preventive detention, but only when the evil intentions are accompanied by definite acts (for without acts there has been no exercise of choice), and only when the acts proceed far enough to involve clearly culpable threats rather than blameless fantasy. The preceding concern prompts an unwillingness to punish all preparatory behavior as a criminal attempt, but courts and legislatures have been unable to delineate with precision the point at which preparations have gone far enough to warrant criminal liability. As a result, the behavior punishable as an attempt often cannot be distinguished readily from noncriminal preparation. Liability turns on a standard whose application cannot always be predicted reliably in advance.

Although attempt liability thus appears solidly grounded in the restraining and rehabilitating functions of the criminal law and, to a lesser extent, in the deterrent function, the concerns just mentioned have prompted some uneasiness about imposing criminal responsibility for attempts. As a result, legal doctrine continues to erect complex limitations on the scope of liability for unsuccessful efforts to commit crime.