Why Do We Punish Attempts: Examining Attempt Liability in Light of the Traditional Theories of Punishment?
A gun misfires. A vault is too heavy to carry. The drugs never make it across the border. All these are examples of when a crime comes precipitously close to occurring, but for whatever reason, the offender fails to complete the crime. In the United States, even though these offenders were unsuccessful, they can still be charged with an attempt. While determining what is considered an attempt by the criminal law remains hotly contested, a vital question persists, why do we even choose to punish individuals who commit attempts?
At the heart of a criminal attempt is the fact that the wrongdoer formed the intention to commit the underlying offense but did not complete it for a variety of reasons.[1] As a result, the tangible harm did not come to pass. The elementary saying of “no harm, no foul,” might suggest that we should not punish an offender who commits an attempt. Yet, the traditional theories of criminal punishment have satisfactory responses when confronted with this simple maxim. First, this Paper will argue that retributivists have strong answers to the question of why we punish attempts. Second, this Paper will demonstrate that we choose to punish attempts because of the intangible harm they cause to both the victim and society. Third, this Paper will argue that we punish attempts to deter the underlying offense. Finally, this Paper will also maintain that another reason for punishing attempts is that by committing an attempt, an offender demonstrates a level of dangerousness that we want to protect ourselves from. While some of these arguments might support the assertion that we should punish attempts just as harshly as the underlying offense, this Paper does not examine that current debate among criminal law theorists.
I. RETRIBUTIVISM
On the surface, retributivism and the punishment of attempts seem like an odd match. According to law and philosophy professor Michael S. Moore, retributivism is the idea that “we ought to punish offenders because and only because they deserve to be punished.”[2] For a retributivist, the only thing that matters when justifying punishment is the wrongdoer’s desert.[3] The question then becomes what is the desert for an individual who commits an attempt? By its nature, an attempt means that the underlying crime was unsuccessful, and thus, the harm from that crime did not occur. For a retributivist, deserts stem from the resulting harm and the degree of the individual’s responsibility for that harm.[4] However, on its face, an attempt does not result in any tangible harm, so what can be the basis for the desert? This dilemma leaves retributivists searching for another way to justify punishing attempts. There are three ways retributivists resolve this quandary: attempts demonstrate culpability, garner unfair advantages for the offender, and evince a lack of respect for victims.
First, the desert for an attempt crime derives from the mens rea of the offender. Under the Model Penal Code, an individual is guilty of a criminal attempt if he or she acts “with the kind of culpability otherwise required for the commission of the crime” and takes an action that exhibits a substantial step towards the criminal objective.[5] Based on this definition, an individual must have the requisite intent to be guilty of a criminal attempt. Is this where the desert is found, in the mental culpability of the individual? Moore would argue that this is the case, as he asserts that “[c]ulpability is necessary to desert, but wrongdoing is not.”[6] Based on Moore’s theory, when an individual takes a substantial step with a blameworthy intent or mens rea, that is enough for punishment to be justified.
Does Moore’s theory also suggest that mens rea alone could be the basis for the desert? If this were true, this could open the door to punishing thought crimes, which our criminal code currently does not do. Moore might argue that just by thinking about committing a crime, an individual is blameworthy, and thus, this thought justifies the resulting punishment. This theory would push the criminal law too far in a direction that would resemble something out of 1984. We do not want the government policing what people are thinking about, nor do we have the means of objectively proving what people’s thoughts were. That is why we punish attempts only when the individual commits a substantial step. The substantial step is the manifestation of the individual’s blameworthy intention to commit the crime. Without this action, we would have no way of knowing objectively what the individual was intending. Therefore, an individual’s desert originates from his or her blameworthy thoughts that can only be illustrated through the substantial step.
Philosopher Joel Feinberg has similarly argued that the consequences of an individual’s actions should not matter when it comes to determining whether to punish the individual.[7] For Feinberg, an individual’s desert is based off his or her blameworthiness, and that blameworthiness does not depend on the fact that luck caused the individual’s action to be unsuccessful.[8] Feinberg’s theory would justify the punishment of attempts because the person who attempted the crime displayed blameworthy behavior. Further, he would argue that we should not base our system of punishment on factors outside the offender’s control.
At the core of retributivism is the idea that the offender deserves to be punished. For Feinberg and Moore, it is possible to divorce the offender’s desert from the consequences of the offender’s action. The mens rea and the substantial step are what make attempts blameworthy, and thus, deserving of punishment. This theory does not depend on the resulting harm for the source of the desert. These theorists would say it would be arbitrary to punish one individual for successfully completing a crime, while not punishing another for attempting the crime because the reason for the difference between the two outcomes has nothing to do with the individuals. As retributivism is focused on the offender and what he or she deserves rather than the victim, it makes sense to punish retributively only based on what the offender can control.
One might argue that not all individuals who commit attempts have this blameworthiness. There may be some offenders that have taken a substantial step towards the underlying offense but have not yet tried to complete the crime. They may have taken steps to prepare for the crime, including buying necessary tools, scouting locations, or formulating a plan. Some might argue that while they had the necessary mens rea, they had not yet rolled the dice on completing the crime. This mistakes where the blameworthiness is derived from. The desert comes from the intention to commit the crime coupled with the substantial step towards that crime. While these offenders have not tried fully to commit the underlying offense, by taking a substantial step, they have exhibited the requisite manifestation of their blameworthiness to justify punishment. There must be a line of demarcation between pure thoughts and a completed crime, and the substantial step is that marker. By taking a substantial step, the individual has shown that he or she is on the path to completing the crime and can be punished because this is culpable conduct.
Other theories of retributivism are not as successful at answering the question of why we are justified in punishing attempts. In his theory of retributivism, philosopher Herbert Morris asserts that the point of punishment is to rebalance the distribution of burdens and benefits in society.[9] According to Morris, when an individual violates the rules of society, he or she has gained an unfair benefit.[10] Thus, for Morris, punishment is about restoring society’s equilibrium by taking away the advantage an individual had gained unfairly.[11] Morris’s theory appears on its face to hold promise in justifying why we punish attempts. An individual who is punished for an attempt has intended to commit the underlying crime and has taken meaningful steps in furtherance of that crime. Under Morris’s logic, the individual has failed to use the “self-restraint” that those who follow the law are burdened with.[12] Morris would argue that the offender took advantage of the system of rules that forbids whatever attempted crime he or she committed. Therefore, it could be said that someone who commits an attempt gains a benefit from doing so, which in turn justifies why we choose to punish them.
This explanation is not satisfactory because it is difficult to pinpoint the benefit an individual who commits an attempt accrues. Inherently, attempted crimes are unfinished—the individual did not fulfill the goal he or she intended to achieve. What does the attempted car thief gain from getting caught just prior to opening the door of the Cadillac with the intent to steal it? While the thief was unable to use self-restraint, it can hardly be said that he or she gained some tangible advantage because he or she was thwarted in his or her attempt.
Furthermore, it is unreasonable to suggest that individuals are burdened by the fact that the criminal code restrains them from committing crimes. Philosopher Jean Hampton points out that it is unclear what costs are imposed on someone by abstaining from committing a crime.[13] Morris’s logic is even more strained when analyzing attempts. Even if an individual had a strong desire to commit a crime, it would be illogical for him or her to only aspire to commit an attempt and not the underlying offense. As follows, it is improbable that resisting an urge to commit an attempt imposes any quantifiable burden on an individual. It is also unlikely that an individual gains anything from committing an attempt. One plausible benefit from an attempt might be psychic. This could take the form of the individual gaining mental freedom from having attempted something that he or she had wanted to do for a long time. The individual could also experience the liberating feeling of the law not being binding on himself or herself. However, even if this physic benefit exists, it is not large enough to justify punishment.
One potential argument for not punishing attempts is the idea that by their nature, attempts are unsuccessful and do not bring about the harm of the underlying offenses. Under this perspective, we are only morally justified in punishing individuals who have caused concrete harm. This argument has a solid foundation—an individual’s desert is usually derived from the amount of harm he or she has caused society. Yet, this argument has too narrow of a view of what harms we should consider when determining whether punishment is justified. It is true that an individual who has committed an attempt has not completed the underlying crime and the resulting harm did not occur. If someone commits attempted robbery, the victim of the attempt remains in possession of the items that the robber sought. Accordingly, it could be argued that the victim has not been harmed because he or she never lost possession of the items. This argument, however, constrains how we should perceive the harm that the victim suffered.
In her work, Hampton argues that “wrongful actions” can sometimes fail to inflict tangible harm, but “anger is simply by virtue of what the action says about” the victim.[14] According to Hampton, the wrongfulness of the offender’s conduct stems from the fact that the action diminishes the value of the victim and shows that the offender believes himself or herself to be superior to the victim.[15] Regarding attempts, she explains that “[i]f an attempt fails but is discovered, the behavior is sufficiently alarming in what it conveys about the intended victim’s worth that we seek to answer it with punishment, even though no damage has been done to that person’s realization of value in the world.”[16]
This argument emphasizes why we punish attempts under a retributivist framework. In committing the attempt, the individual conveys that he or she does not value the victim. While no physical harm occurred, the wrongdoer displayed a lack of regard for the victim and the victim’s rights. The offender’s desert derives from this lack of respect and dignity shown to the victim. In committing an attempt, the offender has conveyed to the world that he or she believes himself or herself to be superior to the victim. This display of superiority cannot be allowed to stand in a cooperative society. This theory is sounder than the other retributivist theories that posit that the wrongdoer gained something from the attempt. Although, the offender failed to reap any benefits, he or she devalued the victim in the eyes of both society and the victim. This devaluation of the victim manifests itself through the attempt. In committing the attempt, the offender converted his or her private thoughts into action when he or she took the substantial step. Without this action, the devaluation of the victim would simply have remained in the mind of the offender. Nevertheless, by choosing to take the substantial step, the offender expressed publicly the low esteem he or she had for the victim. On that account, society is justified in retributively punishing that offender because we want to show that the offender is not in fact superior to the victim.
II. UTILITARIANISM
Utilitarianism provides an alluring answer to the question of why we punish attempts. As a utilitarian, philosopher Jeremey Bentham suggested that the primary purpose of a system of laws is to ensure the happiness of a society.[17] According to Bentham, a system of laws accomplishes this task by removing anything that “substract[s] from that happiness.”[18] Although Bentham sees punishment as a form of evil, he admits that punishment is permissible only when it “promises to exclude some greater evil.”[19]
The question then becomes how do attempts subtract from the happiness of a society? One might argue that attempts do not subtract any happiness from society because no harmful consequences resulted from the attempt. As no victim was harmed, whose happiness was diminished by the attempt? Like the argument of some of the retributivists, this contention can be rebutted by the idea that the attempt negatively impacts the happiness of society and not just the victim. While it was unsuccessful, an attempt increases the level of criminality present in society.[20] An individual who commits an attempt demonstrates that he or she is dangerous. By committing the attempt, the offender has increased the “objective threat of crime” in a community.[21] Even though no tangible harm resulted, this increased level of threat negatively affects the happiness of society. As the attempt added to the aggregate level of criminality, the cost to society comes from “the actions taken to prevent or avoid the completed offenses.”[22] For example, if someone attempts to rob a car in a neighborhood, the members of that community would likely take expensive precautions to ensure that their cars are not also broken into. Further, these people would be justified in feeling less safe in their community. It does not matter to them that the first car was not successfully robbed. The attempt alone shows that there is a threat of criminality in their community. Because the offender increased this danger, we are justified in punishing that individual to remedy “the damage of our assured liberty caused by his past criminality contributions.”[23]
Moreover, deterrence can also explain why we punish attempts. We want to utilize the punishment of individuals to deter them and others in society from committing these crimes. As a theory, deterrence suggests that by punishing an individual, we can discourage others from committing that act because of the penalty imposed on the individual.[24]
Initially, this theory is appealing. The foremost purpose behind our criminal code is to prevent crime. It makes logical sense that we would want to deter individuals because this could prevent crime from ever occurring. By punishing attempts, individuals are deterred from even trying to attempt the crime, but not from taking the substantial step. Still, individuals may think twice about trying to commit the underlying offense if they know they can be punished even when they are unsuccessful. Divorced from the context of attempts, the actions of the substantial step could be harmless. Instead, we are punishing someone for an attempt because we believe that the harm resulting from the underlying crime is significant enough to justify punishing individuals to deter them from even unsuccessfully attempting the crime. By deterring individuals from even attempting the crime, we reduce the chances that the underlying offense will occur.
Be that as it may, utilitarianism is not without its weaknesses. Chief among them is the fact that the theory does not have a clear limiting principle. Under utilitarianism, it might be justified to punish an innocent person if it allows for the maximum amount of happiness in society. This concept can also be applied to the punishment of attempts. It might be justified to expand the definition of an attempt to punish an individual to make initial preparations even if they do not rise to the level of a substantial step. This could deter more individuals from going down the path of crime and could result in greater happiness for society. But it would be unwise for a criminal code to expand the definition of attempt in this way because it would inescapably criminalize such a wide range of behavior.
In addition, the actual utility of deterrence has been questioned. Valerie Wright, a research analyst for the Sentencing Project, has written about the limits of deterrence.[25] In critiquing this theory of punishment, Wright wrote, “One problem with deterrence theory is that it assumes that human beings are rational actors who consider the consequences of their behavior before deciding to commit a crime; however, this is often not the case.”[26] It is not likely that offenders take the time to weigh the probability of getting caught and convicted for a crime before deciding on a course of action. Many crimes are the result of impulsive decisions where rational decision making is completely absent. Additionally, the reasons why an individual commits a crime are too opaque and complicated for us to even calculate whether having a certain law on the books would have deterred the individual. Consequently, while deterrence could provide a useful basis for punishing attempts, the theory presupposes a rationality of thought behind criminal behavior, which likely does not exist beyond the theoretical realm.
III. INCAPACIATATION
Another theory that provides a rationale for why we punish individuals for attempts is incapacitation. Based on this theory, individuals who have committed attempted crimes are dangerous and pose a threat to society. By committing these acts, these individuals have shown that they have a propensity to commit actions that make society unsafe. While their endeavor was unsuccessful, these individuals still made the voluntary choice to commit the attempt. Because of this, they have exhibited that they possess the capability of committing the underlying offense.
Criminal law professor Paul H. Robinson has suggested that our system of punishment has recently become more focused on incapacitation of dangerous individuals, rather than solely being motivated by deterrence or retributivism.[27] Andrew D. Leipold, another criminal law professor, has also offered a similar assertion. Leipold believes that incapacitation explains why our sentencing practices are the way that they are in the United States.[28]Simply put, Leipold explains that incapacitation allows us as a society to stop future crime without worrying about the other, more morally fraught reasons for punishment.[29]
Incapacitation is another justification for why we punish attempts. In manifesting the intent and the substantial step, the offender has shown society what he or she is capable of. But for an action outside of the offender’s control, the underlying crime would have occurred. By this logic, this individual could be just as dangerous as an individual who was successful in carrying out the crime. Someone who decides to murder a victim but is thwarted by the bullet just grazing the victim is no less dangerous than an individual whose bullet instead hits a major blood vessel. Both individuals had the requisite intent to murder and took actions to carry out this intention, thus making them both equally dangerous. In some ways, it could even be said that someone who commits an attempt is even more dangerous because he or she may want to carry out their crime again after being unsuccessful the first time.
Logically, incapacitation makes sense as a theory of punishment because the entire purpose of the state is to protect the rights and interests of its citizens. When offenders have shown dangerous propensities, it is incumbent on the state to protect its citizens from these individuals in some manner. Incapacitation is one method of fulfilling this duty because it stops the dangerous individuals from harming anyone outside of prison while incapacitated. It follows that we would punish offenders who have committed attempts by incapacitating them to ensure that they do not continue to violate the rights of others. By committing attempts, these individuals have shown themselves capable of violating the rights of others, so the state has an obligation to stop them from doing this again in the future.
One possible critique of incapacitation is the fact that there is no discernable boundary to this theory. Leipold has pointed out that incapacitation lacks a “limiting principle.” If incapacitation to stop crime were taken to its logical extreme, he would argue that the theory would suggest that we put all dangerous felons in prison for their entire lifetime.[30] He adds that this would be “unpalatable and surely unconstitutional.”[31] When examined in the context of attempts, if a state’s duty was truly to incapacitate anyone who shows dangerous tendencies, a state could potentially punish a wider range of individuals. This could be accomplished by expanding the definition of what an attempt is to cover more conduct than the criminal code currently does. But it is questionable if this would be beneficial for society.
What these arguments exemplify is the weakness of using incapacitation as the basis for punishing attempts. Further, the Supreme Court in DeShaney v. Winnebago County Dept. of Social Services held that the state possesses no affirmative duty to protect its citizens from the harms caused by private parties.[32] For that reason, under the United States’ current jurisprudence, it does not seem like incapacitation for attempts is even required. This is because DeShaney negated the idea of the state having any obligation to protect its citizens prospectively from harms caused by others. Incapacitation for attempts is utilized to protect citizens from dangerous individuals, but the state is not bound to aid its citizens in this manner. Although this may be the case, incapacitation is often a critical sentencing factor for judges.[33] According to criminal law professor Richard S. Frase, judges evaluate the “degree of risk posed by the offender” when determining what the sentence should be for an individual.[34] While, incapacitation may not provide a basis for prescribing what crimes to punish, it can supply a rationale for what sentence to impose once the offender has been convicted.
Although incapacitation holds an initial appeal as a theory to explain why we punish attempts, its lack of a limiting principle and with DeShaney undermining the theory’s core premise, it leaves us relying on other theories for a better explanation.
CONCLUSION
In exploring the potential justifications for our punishment of attempt liability, it becomes clear that we are more than justified in punishing these types of offenses. The source of this justification emanates not from any tangible harm that results from attempts, but from a more ephemeral concept of upholding our shared society. Underlying many of these justifications is the idea that attempts harm society in different ways—from increasing criminality to breaking the norms of solidarity. To counteract the damage done to society, we are justified in punishing attempts. While deterrence and incapacitation offer persuasive justifications for punishment, they do not fully explain the injury that is caused by attempts. As criminal codes are created to uphold cooperation and norms in a society, these values are threatened just as much by attempts as they are by the underlying offenses. Therefore, it is merited that these codes punish attempts alongside the underlying offense.
Andrew Hussey (‘23) is a Juris Doctor candidate at Michigan State University College of Law. He is a Staff Editor on the Michigan State Law Review. He graduated from Indiana University with a Bachelor of Arts in Journalism in 2018. His primary areas of interest are in constitutional law and criminal law.
[1] See Richard L. Lippke, Harm Matters: Punishing Failed Attempts, 14 Ohio St. J. Crim. L. 629 (2017).
[2] Michael S. Moore, Justifying Retributivism, 27 Isr. L. Rev. 15, 15 (2007).
[3] See id. at 15-16.
[4] See George Fletcher, The Recidivist Premium, Criminal Justice Ethics, 1982, at 54, 56.
[5] Model Penal Code § 5.01.
[6] See id.
[7] See Joel Feinberg, Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It, 37 Ariz. L. Rev. 117, 119 (1995).
[8] See id. at 131.
[9] See Herbert Morris, Persons and Punishment, 52 The monist 475, 478 (1968) (“[I]t is just to punish those who have violated the rules and caused the unfair distribution of benefits and burdens.”).
[10] See id.
[11] See id. (describing how punishment “restores the equilibrium of benefits and burdens by taking from the individual what he owes, that is, exacting the debt”).
[12] See id. (discussing how individuals who violate the law do not utilize the self-restraint that everyone else uses)
[13] See Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goals of Retribution, 39 UCLA L. Rev. 1659, 1660 (1992) (“Very few of us understand our refusal to murder or assault our fellows as imposing a cost upon ourselves, and very few of us resent murders, muggers, or rapists because they have unfairly enjoyed benefits coveted by the rest of us.”).
[14] See id. at 1678.
[15] See id. at 1682 (discussing how “wrongful actions” show a lack of value for the victim and also exhibit “the wrongdoer’s superior importance relative to the victim”).
[16] See id. at 1681.
[17] See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (1789).
[18] See id.
[19] See id.
[20] See Jacob Bronsther, The Corrective Justice Theory of Punishment, 107 Va. L. Rev. 227, 232 (2021) (“When an individual offender fails to self-apply the criminal law, then, in combination with other offenders, he contributes to a wider social threat. This is ‘criminality’ — not merely the perceived but the objective threat of crime.”).
[21] See id.
[22] See id.
[23] See id. at 233 (“He increased the level of criminality in the past to some degree, contributing to a threat that makes life in society more difficult, perilous, and expensive.”).
[24] See Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 71 (2005) (“General deterrence seeks to discourage would-be offenders from committing further crimes by instilling a fear of receiving the penalty given to this offender.”).
[25] See Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment, The Sentencing Project (Nov. 2010), https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf.
[26] See id. at 2.
[27] See Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Har. L. Rev. 1429, 1429 (2001) (“Yet during the past several decades, the justice system’s focus has shifted from punishing past crimes to preventing future violations through the incarceration and control of dangerous offenders.”).
[28] See Andrew D. Leipold, Recidivism, Incapacitation, and Criminal Sentencing, 3 U. St. Thomas L. J. 536, 541-42 (2006).
[29] See id.
[30] See id. at 542.
[31] See id.
[32] See 489 U.S. 189, 195 (1989) (“[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasions from private actors.”).
[33] See Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67, 70 (2005).
[34] See id. at. 71.
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