Abstract
In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the “Transfer Principle.” This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle.
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Notes
Gideon Yaffe, Attempts (2010).
Moreover, one would also have to explain why the attempt to commit a given crime is to be punished less severely than the completed crime itself would. For Yaffe’s views on this issue, see id. at 310–335.
Id. at 21.
For purposes of this paper, I follow Yaffe in taking punishment to involve both “censure” and “sanction”—that is, both the expression of condemnation toward the one being punished (censure) and the imposition of pain or deprivation on the one being punished (sanction). See Yaffe, supra note 1, at 32.
As the terminology is typically used, an act token is a particular bit of voluntary conduct that is performed by a particular agent at a particular time under a particular set of circumstances with a particular set of motives. Although any particular act token can fall under many different types, act tokens are individuated very finely: change its agent, time, circumstances or motives and we no longer have the same act token.
As the term is typically used, “acts of type X” refers to the set act tokens that possess the property of being an instance of X. A given act type, unlike a token, usually can have different agents, times, circumstances or motives.
See Yaffe, supra note 1, at 21 (discussing the criminal law as “accepting” the Transfer Principle). Doug Husak also understands the Transfer Principle as a descriptive claim. See Husak, infra note 9, at 399.
Yaffe, supra note 1, at 21.
Husak, for example, points out that the Transfer Principle permits the criminalization of attempted attempts. (See Doug Husak, “Why Punish Attempts at All? Yaffe on ‘the Transfer Principle,’” 6 Crim. L. & Philosophy 399, 400–401 (2012).) If C is legitimately criminalized, then the Transfer Principle entails that the attempt to C is legitimately criminalized. But this means that we now have another legitimately criminalized act type—attempting to C—and so another application of the Transfer Principle entails that the attempt to attempt to C would also be legitimately criminalized. But this kind of regress might seem implausible.
However, the Transfer Principle can be easily revised so as to block this regress. Distinguish between intrinsically and derivatively criminalizable types of conduct. Act type C would be derivatively criminalizable iff C is legitimately criminalized, but only in virtue of there being some other bad conduct that in its own right is worth thwarting and whose badness explains why C is legitimately criminalized. By contrast, C would be intrinsically criminalizable when it is criminalizable, but not derivatively so—i.e. when C is legitimately criminalized, but not in virtue of there being some other conduct whose badness explains why C is to be criminalized. Accordingly, the Transfer Principle can be restated as follows:
(Revised Transfer Principle): If a particular form of conduct is intrinsically legitimately criminalized, then the attempt to engage in that form of conduct is derivatively legitimately criminalized.
The Revised Transfer Principle does not fall prey to Husak’s counter-example. After all, while the underlying crime would be intrinsically criminalizable, the attempt to commit that crime would be only derivatively criminalizable (i.e. legitimately criminalized only as a derivative matter). (Note that the arguments I raise in this paper would apply with equal force even if this Revised Transfer Principle were adopted.)
Yaffe, supra note 1, at 22–23.
Id. at 22. Now one might think that Yaffe is being uncharitable towards the consequentialist view here. (Thanks to Scott Hershovitz for pointing out this worry to me.) David Lewis, for example, suggests that from a deterrence perspective, we should sanction attempts whenever we want to deter completions since “we prevent successful attempts [i.e. completions] by preventing attempts generally. We cannot deter success separately from deterring attempts, since attempters make no separate choice about whether to succeed.” David Lewis, “The Punishment that Leaves Something to Chance,” in Papers in Ethics and Social Philosophy 228 (2000).
Still, I think Lewis’ insight does not show that consequentialism establishes the Transfer Principle. For Lewis makes this argument in the context of discussing a last step attempter—one who completes all the steps involved in the crime, but nonetheless fails due to factors outside his control (e.g. he didn’t kill the person he was aiming at only because at bird flew in front of his bullet). But there are other kinds of attempts that Yaffe wants the Transfer Principle to cover—e.g. substantial step attempts (where only significant preparations for the crime are made).
Why is this a problem? Suppose Lewis is right that when deterrence supports criminalizing C, it will also support criminalizing last step attempts to C. After all, deterring last step attempts to C seems like a helpful means to deterring C, since “attempters make no separate choice whether to succeed.” But it does not follow from this that when deterrence supports criminalizing C, it also supports criminalizing substantial step attempts. After a substantial step attempter does have a separate choice whether to proceed with his crime. Thus the question of whether deterrence supports criminalizing substantial step attempts to C does not simply collapse into the question of whether to criminalize C—even if Lewis is right that the question of whether to punish last step attempts does. The upshot is that, even if Lewis’ claim is right, it would not provide a consequentialist rationale for the full-fledged Transfer Principle. (At best, Lewis’ line of thought can establish this weaker principle: If some conduct is legitimately criminalized, then last step attempts to engage in that conduct are legitimately criminalized as well.)
Yaffe, supra note 1, at 27.
See id. at 27 (“Some acts, while wrong, are not wrong enough, or wrong in the right way, to justify criminalizing them, as anyone who has told a small lie, or broken even a big promise, knows.”).
Id. at 27. Cf. Oliver Wendell Holmes, The Common Law 68–69 (1881).
As I understand it, this argument employs an objective notion of risk, not a subjective one. In other words, the thought is that attempts would be criminalizable because we want to see to it that completed criminal conduct does not occur, and attempts actually raise the probability that such criminal conduct will occur. Thus the point of the argument is not that attempts raise the agent’s subjective probability (i.e. his credence) that a completed crime will occur. That might show the attempter to be blameworthy. But claiming that attempts should be criminalized because attempters are blameworthy is very different from the consequentialist argument under consideration here, namely that we should criminalize attempts as the means to minimizing the risk of completed crimes.
Yaffe, supra note 1, at 27. Cf. MPC Commentary, § 5.01.
Yaffe, supra note 1, at 28 (“the occurrence of many a legitimately criminalized attempt fails to raise the probability that the attempt will blossom into a completed crime”). This suggests that Yaffe, too, understands the present argument as employing an objective conception of risk, not a subjective one. Cf. supra note 15.
The problem, Yaffe explains, is that “[t]here is great variability among attempts in how much, if at all, they increase the probability of completion, and the degree to which they do has little to do with any of their other normatively relevant properties.” Id. at 29.
See Yaffe, supra note 1, at 32.
Id.
U.S. Const., art. I, § 6, cl. 1. Cf. Yaffe, supra note 1, at 31.
One might think that using “some” here is too weak. After all, this means that the claim would be true provided only that the sanctionabilty of C entails that a single token of attempting to C may also be sanctioned. However, I will follow Yaffe in formulating the claim only in terms of “some.” It will in any case not figure centrally in the arguments I offer below. Still, it admittedly might be better to formulate the claim here using “most” or “a substantial proportion” instead of “some.” For an objection to Yaffe based on similar concerns, see Alec Walen, “Potholes on the Path to Purity: Gideon Yaffe's Overly Ambitious Attempt to Account for Criminal Attempts,” 6 Crim. L. & Philosophy 383 (2012).
See Yaffe, supra note 1, at 33–37.
One might doubt that unjustified and unexcused tokens of lying in public would deserve censure from the state—even if such actions do deserve censure generally. I use the example of public lies, however, because it is fairly straightforward and because it is one that Yaffe himself takes up. See Yaffe, supra note 1 at 32. Moreover, this concern might seem less troubling in light of the fact that censure does not involve sanctions (i.e. hard treatment of some kind), merely an expression of disapproval. Still, if one continues to worry about the example of lying in public, there are many other examples that would do just as well: say, cheating, promising things one knows one can’t deliver, insults or hate speech, being drunk in public, and so on. For such types of action, the worry that the state cannot censure them seems less stark.
See id. at 32 (emphasis added).
Perhaps a theory of punishment would do the trick too, depending on how explicitly it is connected up to one’s theory of punishment. But Yaffe doesn’t defend a theory of criminalization either.
When introducing (*), Yaffe says “While I don’t have an argument for the claim, it seems to me that the following is true…” and then he states the principle (*). Yaffe, supra note 1, at 32.
To this, it might be objected that my argument against (*) is dialectically unfair. After all, don’t we also need a substantive theory of criminalizaton or punishment in order to decide whether conditions (1) and (2) are satisfied for any given act type as well?
Yaffe does offer a theory of censurability, which plays a crucial role in his argument that condition (1) is satisfied for attempts. However, he does not take a stand on what makes act tokens justifiably sanctioned. Instead, his argument for thinking that when C satisfies condition (2) the attempt to C does as well is an argument that does not rely on any theory of justified sanction. Accordingly, he gives us the wherewithal to evaluate his argument concerning conditions (1) and (2).
But matters are different for condition (3). To know whether (3) is satisfied, we do need more than Yaffe gives us. In particular, we need a theory of criminalization (or perhaps a theory of punishment). After all, without such a theory we can’t know which act types figure into the explanation for why various tokens of some putatively criminal type would be justifiably censured and sanctioned. Thus Yaffe’s argument concerning (3) is on much weaker ground than his argument concerning conditions (1) and (2). For that reason, I don’t think my objection to Yaffe is dialectically unfair.
Yaffe, supra note 1, at 6–7.
Id. at 38 (emphasis omitted).
For instance, one worry is that this theory makes blameworthiness simply amount to a certain kind of epistemic failure—namely a defect in how one perceives and reasons about practical reasons. Epistemic failings, however, don’t necessarily make one seem to be morally bad.
Id. at 38 (“To show, then, that unexcused and unjustified attempts to engage in a certain kind of behavior deserve censure by the state if unexcused and unjustified completions of that type of conduct do, it is sufficient to show that attempters recognize and respond to reasons in the same ways as those who complete crimes.”).
For a case of an attempter who responds to reasons in a way that seems worse than the standard completer, see id. at 40–41. Yaffe mentions someone who ties to commit negligent homicide—a crime one necessarily fails to commit if one intends to. Such a person seems more akin to the murderer who intentionally kills than the person who kills in a merely negligent way. Thus the person who attempts negligent homicide (and of course necessarily fails at committing that crime, though he may succeed at committing murder) seems more censurable than the person who completes the crime in question—negligent homicide.
It might be helpful to state the argument explicitly in line by line form:
-
1)
Unexcused and unjustified conduct is censurable if and only if it is a product of a faulty mode of recognition or response to reasons for action. [Corrupt Reasons Theory]
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2)
When one attempts an act of some (putatively criminal) type, C, one is responding to reasons in either the same (or worse) ways as a person who actually completes an act of type C. [RR]
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3)
Therefore, those who attempt to C are always at least as censurable as someone who completes an act of C.
-
4)
Therefore, if all unexcused and unjustified tokens of C are censurable, then all unexcused unjustified attempts to C are censurable. [Transfer of Censure]
The objection I develop in the text is an argument against line (2).
-
1)
Id. at 38–39 (“the practical question of whether to try to do something seems, usually, to collapse into the question of whether to do it…It is because we reach the conclusion that completion is supported by reasons that we attempt”).
Id. at 39.
This is Yaffe’s example, which he draws from Jennifer Hornsby. See id. at 39.
Id.
MPC § 5.01(4) (explaining that “[w]hen the actor’s conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose… Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose.”).
Personal correspondence.
Thanks to Scott Hershovitz for pressing me on these first two objections.
Moreover, Yaffe can’t now claim that this is not the right counter-part of John D’s to consider, and that we instead should be focusing on one who undergoes the same change in dispositions after the attempt starts that John D did. For then the original problem would just re-emerge—namely, that there simply can’t be a person whose resolve weakens as much as John D’s after the start of the attempt but who still completes the crime. For anyone whose resolve weakens in the way we’re supposing John D’s did would abandon the attempt as well.
Furthermore, notice that nobody can respond to Jerry’s reasons in the same way that he did while still completing the crime. After all, Jerry’s mode of response to his reasons involved giving up. So someone who starts the crime for precisely the same reasons as Jerry (i.e. to impress a bunch of thugs), but who goes ahead and completes the crime despite the feeling of nausea this causes him will have responded differently to Jerry’s reasons than Jerry himself did. Accordingly, focusing on the reasons to start the attempt does not provide a way to circumvent the original problem that was posed by the case of John D either.
Yaffe, supra note 1, at 38.
Yaffe suggested this response to me in personal correspondence; it has not appeared anywhere in print. Any problems with the presentation of the response are mine alone. I am extremely grateful to Yaffe for some very helpful discussions about this objection.
Bratman’s work might prove helpful to Yaffe here. See Michael Bratman, Intentions, Plans and Practical Reasons (1987). On Bratman’s view, intentions are “conduct-controlling pro-attitudes,” “which we are disposed to retain without reconsideration.” Id. at 20. (See generally, Bratman, chap. 5.) With more work, Bratman’s view might provide a way to argue that John C need not have stopped to reconsider his conduct. Nonetheless, I am inclined to think in morally charged situations like a bank robbery, at least some reconsideration of one’s chosen course of conduct would be virtuous. I cannot fully settle this complex issue here.
Doug Husak, for example, suggests a different route to establishing the Transfer Principle, which might warrant a closer look in light of my arguments here. For more on Husak’s proposal, see Husak, supra note 19, at 408–410.
References
Bratman, M. (1987). Intentions, plans and practical reasons. Cambridge: Harvard University Press.
Holmes, O. W. (1881). The common law. Boston: Little, Brown and Company.
Husak, D. (2012). Why punish attempts at all? Yaffe on ‘the Transfer principle.’ Criminal Law and Philosophy, 6(3), 399–410.
Lewis, D. (2000). The punishment that leaves something to chance. In Papers in ethics and social philosophy. Cambridge: Cambridge University Press.
Walen, A. (2012). Potholes on the path to purity: Gideon Yaffe’s overly ambitious attempt to account for criminal attempts. Criminal Law and Philosophy, 6(3), 383–386.
Westen, P. (2008). Impossible attempts: A speculative thesis. Ohio State Journal of Criminal Law, 5, 523–565.
Yaffe, G. (2010). Attempts. New York: Oxford University Press.
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Sarch, A. Two Objections to Yaffe on the Criminalization of Attempts. Criminal Law, Philosophy 8, 569–587 (2014). https://doi.org/10.1007/s11572-013-9210-4
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DOI: https://doi.org/10.1007/s11572-013-9210-4