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Abstract

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the “moral character” or “intentional structure” of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the “continuity thesis,” according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.

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Notes

  1. The rule is broadly, but not invariably, accepted. See United States v. Gracidas-Ulibarry, 192 F.3d 926, 932 (J. Silverman, dissenting) (1999) (“It is an axiom of American criminal law that an attempt ‘includes an element of specific intent even if the crime attempted does not.’”) The Model Penal Code adapts a modified version of the rule, considering knowledge of a criminal result as sufficient (see MPC §5.01(b)). According to Antony Duff, England conforms to the traditional rule, whereas Scots law takes a more expansive view of attempt (Duff 1990). For detailed discussion of the forms of attempt and reckless endangerment in the United States (see Cahill 2007, pp. 913ff.). Cahill’s research indicates that a plurality of the 37 states in the United States that have defined attempt provisions adopt the traditional requirement of criminal purpose as to the results. Twenty states are strict on this point, and an additional ten follow the Model Penal Code in allowing foresight to count, at least with reference to completed attempts. Apparently only three states—Colorado (Colo. Rev. Stat. Ann. §18-2-101(1) (1986)), Indiana (Ind. Code Ann. §35-41-5-1(a)) and North Dakota (N.D. Cent. Code §12.1-06-01 (1997))—directly identify the culpability of an attempt with that of the underlying offense. (Cahill includes Utah in this latter group, but Utah Code Ann. §76-4-101(1)(b) clearly indicates that Utah follows the Model Penal Code with respect to completed attempts. Indeed, Utah is in fact stricter than the Model Penal Code, since State v. Casey, 82 P.3d 1106 (Utah 2003), established that Utah does not countenance attempt liability for anything short of a criminal intent, including knowledge.)

    Academic commentary on the mens rea required for attempts is relatively sparse. For older discussions, see Smith (1957, 1962a, b), Stuart (1968), Wechsler et al. (1961a, b), Hart (2008) and Enker (1977). For more recent discussion, see Alexander and Kessler (1997), Duff (1989, 1990, 1995, 1996a, b, 2005) and Cahill (2007).

  2. See e.g., Wechsler et al. (1961a, p. 571).

  3. For similar remarks, see Robinson (1997, pp. 157ff.), and Enker (1977, p. 850). See also Husak (2007, p. 160). My thanks to Ken Simons for discussion of these issues.

  4. See Enker (1977), though what he has in mind by “subjectivism” has more to do with a comparative emphasis on culpability as against conduct (mens rea versus actus reus), rather than the problem of outcome luck.

  5. See Duff (1996a, pp. 171ff.). Finkelstein (1999) describes this as “the subjectivist approach to attempt liability,” (p. 76) and Husak (1997) implies that because the result is so (allegedly) counter-intuitive, Duff’s argument essentially functions as a reductio (p. 301). Duff himself, it should be noted, does not make this claim.

  6. For general discussion of this issue, see Ashworth (1988) and Bittner (2008).

  7. Keys v. State, 766 P.2d 270, 273 (1988). (“Attempt means to try; it means an effort to bring about a desired result.”)

  8. As Joshua Dressler crisply puts it, “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” Dressler (2007, p. 419). See also Duff (1990, pp. 195–196).

  9. The retort that legislators have in fact criminalized non-intentional attempts by defining crimes of reckless endangerment is thus off target. The sheer existence of endangerment offenses is not at issue; what is at issue is the relation between endangerment and attempt. Is endangerment simply an awkward way of filling the gap created by defining attempts as purposive, or is there an important philosophical reason for strictly distinguishing the two?

  10. Duff (1990, pp. 204–205); see also Duff (1996a, pp. 362ff.).

  11. See also Enker (1977).

  12. For Duff’s discussion of attempted drug crimes (see Duff 1996a, pp. 374–378).

  13. Duff’s preferred test for the intent requisite to constitute a legal attack is “an intention such that the agent would necessarily commit a complete offence in carrying it out.”

  14. Duff (2005, p. 51).

  15. Similarly, Duff argues that A does not attack B if A acts out of self-defense. But acting out of self-defense would seem to be one way of specifying a person’s reasons or motivations for (intentionally) doing what she does (see Duff 1996a, p. 364, fn. 75).

  16. Duff claims that a risk of harm “often provides a conclusive reason against the action” Duff (2005, p. 53). I understand Duff to mean that sometimes the foreseen harm is so great that it outweighs all other likely considerations, but not that it serves to rule out other sorts of considerations from legitimately entering into deliberation in the first place. Since I think foresight of harm can sometimes take the latter role, I think that acting in such circumstances is also to act for “wrong reasons,” not merely to act on the basis of a mis-estimation of what one has all-things-considered reason to do.

  17. Based on the facts of Jones v. State, 689 N.E.2d 722 (1997), discussed in more detail below.

  18. All that is meant by calling them defeasible is that the risks are not such that it would never be permissible for A to do what he does, only that it is never made permissible on the basis of certain kinds of reason. Might there be a difference between being motivated by what is not, in this context, a valid consideration at all, and being motivated by what is not, ever, a valid consideration? There might be, but since the argument I am considering founds the distinction between A (who intends harm) and B (who foresees it) on the structure of their practical reasoning, rather than the nature of the concrete reasons in each particular case, I don’t think this claim, even if true, would help. Note that I am not claiming that intended and foreseen harms cannot be distinguished, but am defending only the much weaker claim that they are not distinguished on grounds that one agent violates a peremptory reason while the other merely miscalculates costs and benefits. In any case, it seems somewhat implausible to construe every case of an intended harm/attack as a case of an agent acting for a categorically prohibited reason, especially if we keep in mind the broad scope of attempt liability. Duff, for one, certainly does not endorse such a claim; see Duff (1996a, p. 372).

  19. In some cases of foreseeable risk imposition, benefits and burdens are weighed against each other. Driving on the interstate will result in a certain foreseeable number of deaths and injuries each year, but that is outweighed by the benefit to everyone of having an efficient means of transportation. The point is that the weighing presupposes a prior validation of the reasons for action as legitimate in the first place.

  20. MPC §210.2(1)(b).

  21. MPC §210.3(1)(b).

  22. Duff (1996a, p. 368): in cases where the relevant harm does not materialize, “we have stronger reasons to criminalize failed attacks on legally protected interests than …actions that recklessly endanger, but do not actually harm, such interests” (Emphasis added).

  23. Duff (1996b, p. 41; 1995, p. 321).

  24. Duff (1996a, p. 365).

  25. Duff (1996a, p. 368). The victim who is recklessly endangered suffers a “categorically different…and less serious” harm and wrong than the victim of a failed attack, and consequently has a “weaker complaint” than the latter.

  26. I think something along these lines provides the best interpretation of Lord Goddard’s reasoning in Whybrow, since otherwise the claim that intent is the “essence” of attempt is both unsupported and quite mysterious. See Whybrow, 35 Crim. App. 141, 147 (1951) (per Lord Goddard, C. J.).

  27. It has been suggested that I am uncharitable in construing the relation arithmetically rather than as, say, harm multiplied by culpability. But it is easy to see why the model must be arithmetic and not multiplicative: treating harm as a multiplier would prohibit punishing attempts (i.e., harmless wrongdoing) altogether.

  28. Note that the arithmetical model should not be understood as representing a general cut-off for any sort of criminal punishment whatsoever, but rather as a cut-off for liability for each category of recognized offense. That is, the threshold is set independently for each offense, rather than for criminalization just as such. Otherwise, the fact that shoplifting is a crime would then be taken to license virtually any form of inchoate liability for invasion of graver interests, which would undermine rather than support the traditional mens rea rule of attempts.

  29. My thanks to a reader at Criminal Law and Philosophy for pushing me to consider this objection.

  30. A jurisdiction adopting this approach should also abolish reckless endangerment, as the newly defined attempt statute would do all the work endangerment currently does (and more), and abolishing endangerment would eliminate the risk of absurdities such as attempted endangerment offenses.

  31. Cahill (2007) notes that many jurisdictions in the United States have general purpose reckless endangerment statutes, or specific ad hoc endangerment offenses, or both. Hawai’i, discussed below, is a case in point. These jurisdictions, as I see it, are taking halting steps toward indirectly incorporating the continuity thesis. As Cahill astutely points out, this approach is not without dangers of its own (see Cahill 2007, pp. 930ff.).

  32. Enker ends his defense of the purpose requirement by suggesting that “the substantive crime of reckless risk creation might well be broken down into the different types of recklessness, and even to intentional risk creation, with appropriate penalty levels for each category of offense” (Enker 1977, p. 866). I am inclined to believe this is to merely pay lip service to the idea that attempts must be purposive.

  33. See Husak (2007) generally, and Cahill (2007 pp. 938ff.), on the merits of “thick” and “thin” criminal codes.

  34. MPC §211.2, §6.08.

  35. MPC §5.05(1), §220.1(1)(a). State legislatures occasionally draft specific ad hoc offenses to deal with these kinds of troublesome cases, often specifically out of a sense that general endangerment would not be sufficient.

  36. This issue is familiar from the literature on double effect. For a sampling of this extensive literature, see Anscombe (2001), Bennett (1981), Fischer et al. (1993), Foot (1985, 2001), Hart (2008), McIntyre (2001), Quinn (1989), Scanlon (2008) and Simester (1996).

  37. Kadish (1987, p. 115).

  38. Compare State v. Perez, 832 A.2d 303 (N.J. 2003) and State v. Hinkhouse, 912 P.2d 921 (Or. App., 1996), discussed below, to Keys v. State, 766 P.2d 270 (Nev. 1988). See also Cahill (2007, p. 895).

  39. Jones v. State, 689 N.E.2d 722 (Ind., 1997), State v. Rumbawa, 17 P.3d 862 (Hawai’i App. 2001). See also People v. Trinkle, 369 N.E.2d 888 (1977).

  40. Ibid. at 724.

  41. Ibid. at 724.

  42. See Cahill (2007).

  43. Hawai’i Revised Statutes §707–713 (1993).

  44. State v. Hinkhouse, 912 P.2d 921 (Or. App. 1996).

  45. The one exception is that Hinkhouse reportedly boasted that he would spread HIV if he were infected with it. Oddly, the court but did not seem to place great weight on this statement, although it is the only piece of evidence on the record that would serve to support the attempt conviction. If the court had been strict about the rule it purported to be applying, the only question would have been whether this reported statement (and it alone) would have been enough to allow a jury to find criminal purpose beyond a reasonable doubt. Contrast Hinkhouse with Smallwood v. State, 680 A.2d 512 (Md. 1996), in which the Maryland Court of Appeals overturned the convictions of an HIV positive rapist for attempted murder because the state had failed to show specific intent, for instance through “explicit statements demonstrating an intent to infect” or “specific actions demonstrating such an intent and tending to exclude other possible intents” (Ibid. at 516). Similarly, in Keys v. State, 766 P.2d 270 (Nev. 1988), Keys was fleeing the scene of a murder and demanded that a passerby drive him away; when the passerby refused, Keys pointed a gun at him and pulled the trigger twice, but the gun failed to fire. At trial, he was convicted of attempted murder based on “implied malice,” viz. that his intent to kill could be inferred from his conduct. The appellate court overturned his conviction, since malice must be express for attempt—that is, the prosecutor must show that the defendant actually intended the criminal result, not merely point to conduct from which intent might (but need not) be inferred.

  46. Ore. Rev. Stat. §§161.405 and 163.195.

  47. For further discussion, see Duff (1996a, p. 374), Finkelstein (1999, p. 74) and Williams (1983) generally. Discussion of this kind of case is sometimes structured with reference to the distinction between the consequences and circumstances of an offense. As I am unsure of the weight this distinction will support, my discussion in the text does not mention it.

  48. See State v. Vigil, 842 P.2d 843 (Utah 1992).

  49. For a sensitive, and enlightening, discussion of the different categories of endangerment offenses (see Duff 2005, pp. 53–64).

  50. I thus completely agree with Duff’s skepticism that the law of attempts should extend to cover crimes (such as those regulating illegal drugs) that are themselves essentially inchoate, or where the risks are too remote, or the conduct too unremarkable (see Duff 1996a, p. 377).

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Acknowledgements

This paper was greatly improved thanks to detailed and incisive comments by anonymous referees at Criminal Law and Philosophy. Adriaan Lanni, Daryl Levinson, Ken Simons and Carol Steiker, as well as participants in the Harvard Law School Criminal Justice Workshop, read and provided detailed comments on earlier drafts. Work on this paper was completed with the support of the Reginald F. Lewis Fellowship at Harvard Law School, for which I am extremely grateful.

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Chiao, V. Intention and Attempt. Criminal Law, Philosophy 4, 37–55 (2010). https://doi.org/10.1007/s11572-009-9085-6

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