Justifications for Attempt Liability

Punishing attempt is not easy to justify. Before we turn to the familiar utilitarian and retributivist arguments that we have been encountering throughout the course, it is important to introduce the related concepts of subjectivism and objectivism.

Subjectivism is the theory that attempt law should determine liability by looking at an actor’s subjective intentions to commit a crime, and any act that verifies the person’s commitment to carry out their criminal plan is sufficient to justify criminal punishment. Subjectivists believe that the actor’s criminal intentions speak to the actor’s dangerousness and bad character, and therefore punishment is justified to protect society. For example, suppose Jim confessed to a friend that he planned to burglarize a neighbor’s house while the neighbor was out of town. Suppose that Jim then picked up a large rock and lifted it above his head near a window, poised to throw it. A subjectivist would justify charging Jim with attempted burglary because of his mens rea as evidenced by his confession. Jim’s actions with the rock would simply verify his mens rea. His bad decision-making and dangerous mental state would justify punishment.

Objectivism focuses on the actor’s external actions without any reliance on the accompanying mens rea to determine if the actor is liable for a criminal attempt. Objectivists believe that the actor causes social harm by placing the public in a state of fear and apprehension, since any neutral, third party observer would be able to recognize the criminality of the actor’s actions. Objectivists would not punish or deter attempts that do not manifest outwardly observable social harm. Consider the previous example in which Jim confessed to his friend his burglary plans, then picked up a large rock near his neighbor’s window and prepared to throw it. An objectivist would not consider Jim’s confession in determining liability. Instead, an objectivist would look at Jim’s actions with the rock and justify liability because a casual observer would conclude that Jim was about to break into the house. Punishment would be justified because members of the community would feel unsafe and uneasy in their neighborhood from seeing Jim with the rock; his attempt caused social harm in and of itself.

The line between subjectivism and objectivism is not always clear.  Suppose that Ethan walks up to Paige, who is sitting at a bus stop, and asks her for change.  Paige says that she does not have any change. Ethan asks her for change again, taking a step closer. He then shouts “Give me some money!” and gets very close to her face. When Paige still refuses, Ethan puts his hand in his coat as if to pull a weapon. At that moment, he is stopped by the police.  Ethan later confesses that he intended to rob Paige. Subjectively, the mens rea requirement is satisfied: the court would look to Ethan’s confession and his demands for money as evidence of intent. Objectively, however, what to consider to determine mens rea is less clear. Ethan’s confession is subjective evidence of mens rea, and should not be considered, but what about his demands for money? Would a third party observer wearing headphones across the street be able to tell that Ethan was about to rob Paige based solely on his body language? Are the demands for money an objective act or a subjective manifestation of intent?

Utilitarians justify attempt liability in three ways. First, criminalizing attempts may specifically deter offenders. Second, attempt liability provides law enforcement a reason to intervene in order to prevent crime before it occurs. Third, relying on a subjectivist account, utilitarians argue that conduct designed to culminate in a crime demonstrates that the actor is disposed to criminal behavior in this instance and in other instances, and therefore needs to be punished to protect society. Utilitarians applying subjectivist theories equate punishment for attempt liability with punishment for the target offense, because nothing distinguishes the actor’s attempted conduct from the actor’s completed conduct except for luck. However, some utilitarians argue that incomplete attempts (as opposed to complete attempts) should carry less punishment than the target offense because an incomplete attempt is less demonstrative of a criminal disposition. They argue that the more steps the actor takes toward completing the crime, the more serious the actor is about his or her criminal intentions, and therefore the more blameworthy the actor. Another utilitarian argument is that punishing incomplete attempts less severely introduces a deterrent effect, since there is little incentive to stop once the actor has taken a “substantial step” if the incomplete attempt and the target offense are punished the same.

Culpability-retributivists justify attempt liability based on the idea that a person who attempts a crime is just as morally culpable as one who successfully commits the target offense (a subjectivist view). These retributivists believe that the attempt should be punished just as severely as the target offense. Harm-retributivists punish offenders because the actus reus of the attempt creates fear and apprehension in others, thus causing social harm. Harm-retributivists reason that attempt should be punished less severely than the target offense, because the social harm caused by an attempt is less than the harm caused by the successful completion of the target offense (even though the actor’s intent is as morally blameworthy as the completed crime). Harm-retributivists thus consider both the morally blameworthy state of the actor’s mind and the objective actions that cause social harm.

Mens Rea for Attempt

Recall that a results crime is an offense defined in terms of a prohibited result. For results crimes, there are two different mens rea levels for attempt. The actor must intend the conduct that constitutes the actus reus of the inchoate act and must perform this conduct with the specific intention of committing the target offense. For example, for attempted murder, the actor must intentionally commit the act of pointing and aiming a gun at someone (the conduct) and must also specifically intend for this conduct to result in the victim’s death. Under the MPC, purpose or knowledge as to the result of the target offense satisfies the requirement for specific intent as to the result. At common law, it is unclear if knowledge is sufficient or if the actor must purposefully intend the result to satisfy specific intent.

A conduct crime is an offense that is defined in terms of a prohibited act, no matter what the result is. For example, drunk driving is a conduct crime, since driving while intoxicated is prohibited conduct even if no negative result occurs. For a conduct crime, the actor does not need to intend a specific result. The actor just needs to purposefully intend to engage in the prohibited conduct.

The actor does not need to be purposeful as to the attendant circumstances to be guilty of attempt. Most jurisdictions require that the actor have the same mens rea as to the attendant circumstances as is required by the target offense.