Criminal Attempt

Fundamentals of Criminal Law by Adam J. McKee

Attempt crimes hold a unique position in criminal law as they involve actions taken toward committing a crime without achieving the intended result. They represent a blend of criminal intent and action, even if the ultimate criminal objective is not realized. The concept of criminal attempts is both ancient and continually evolving, with substantial legal and philosophical debates surrounding it.

The Philosophical Roots: Plato’s Views

The philosophical basis for criminalizing attempts can be traced back to ancient Greece. Plato, the eminent philosopher, had strong opinions on this subject. He argued that an individual who possesses both the intention and purpose to commit a crime, such as murder, should be tried for that crime. However, Plato also acknowledged that an attempt does not yield the same harm as a completed crime, suggesting that penalties like banishment might be more appropriate than the death penalty. This ancient perspective offers foundational thought for modern legal systems: Attempts should indeed be criminalized, but the degree of liability should be less than for completed crimes.

Early Common Law and Its Limitations

In the realm of early common law, the concept of criminal attempts was notably absent from the list of punishable offenses. This historical omission sheds light on the evolutionary trajectory of legal perspectives on attempted crimes. At that time, the focus was primarily on completed actions that resulted in a particular harm or loss, rather than on the intentions or preliminary acts leading up to a potential crime. This approach can be understood within the context of a legal system that was less sophisticated in its ability to probe the psychological aspects of criminal behavior, concentrating instead on clear-cut, observable consequences as the basis for legal penalties.

As societies grew more complex and legal thought evolved, the need to include criminal attempts in the framework of punishable offenses became increasingly clear. Modern law recognizes that the actions leading up to a crime, combined with the intent to commit that crime, pose a real and significant risk to social well-being and order. The act of making an attempt itself is now considered a grave matter deserving of legal sanction. This transformation reflects a nuanced understanding of criminality, acknowledging that the peril posed by a person intent on committing a crime is itself a form of harm that the law should deter and punish. This shift represents not just a change in legal codes, but also a broader societal recognition of the complexities of criminal intent and action.

Key Components of Criminal Attempts

Criminal Act Element: The Two Pathways

When it comes to the legal realm of attempted crimes, the element of the “criminal act” can be met through one of two distinct avenues. The first way involves a person’s purposeful engagement in a particular conduct, with the belief that the attendant circumstances are as they assume them to be. For example, if someone attempts to steal what they believe to be a valuable piece of artwork, but it turns out to be a replica, they could still be charged with an attempt to commit theft. This is because they have actively and intentionally engaged in an action that would have been a crime, had the conditions been as they believed.

The second way focuses on the concept of taking a “substantial step” towards committing an offense. Here, it doesn’t matter if the individual’s beliefs about the attendant circumstances are correct or not. What’s crucial is that the person has done something that significantly moves them closer to the commission of the intended crime. For example, buying a weapon with the intent to use it in a robbery could be considered a substantial step. This aspect of the law aims to identify and penalize behaviors that are strongly indicative of a criminal purpose, even if the crime has not yet been carried out. This allows the legal system to intervene before any harm has been done, but only when it is clear that the person was seriously intending to commit a crime.

Special Cases: Crimes Requiring Specific Results

When dealing with crimes that demand a particular result for conviction, such as murder, the rules surrounding criminal attempts have additional nuances. In these situations, it is not sufficient for the individual to merely engage in conduct that could lead to the commission of the crime. Rather, the person must have engaged in actions that constitute a “substantial step” towards achieving the specific outcome that defines the crime. For example, in the case of murder, acquiring a weapon and staking out the victim’s usual locations could be considered substantial steps toward committing the crime.

Further, the law specifies that the conduct in question must be “strongly corroborative” of the individual’s criminal intent. This means that the actions taken must not only move the individual closer to the commission of the crime but must also clearly support the notion that the individual actually intends to commit the crime. This aspect ensures that the law only targets those who are seriously attempting to produce a specific, harmful outcome, and not those who might have taken preliminary steps but without the clear intention to go through with the crime. In essence, the person’s actions must leave little to no room for alternative explanations; they must compellingly indicate a criminal purpose related to the specific outcome that the crime requires.

The Model Penal Code and Abandonment Defense

Abandonment as an Affirmative Defense

The Model Penal Code (Section 5.01[4]) introduces an interesting twist by recognizing abandonment as an affirmative defense. This means that a person can commit an attempt and then relieve themselves from liability by voluntarily abandoning their criminal plans.

Criteria for Voluntary Abandonment

However, such renunciation isn’t considered voluntary if it’s motivated by a desire to avoid being caught, if the individual finds the crime too challenging to execute, or if they decide to either delay the crime or target a different victim. This nuanced approach adds complexity to the legal considerations surrounding attempts, emphasizing the ongoing balance between criminal intent and actions in determining liability.

Modification History

File Created:  07/12/2018

Last Modified:  09/12/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License

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