- Punishment for Criminal Attempts:A Legal Perspective on the Problem of Moral Luck
I The law of attempts
In the criminal law, the law of attempts is of comparatively recent vintage. 1 It is part of an important contemporary legal trend towards early intervention in the criminal process. There are now a substantial number of crimes on the books that, like the crime of attempt, only require that the perpetrator start down the road to carrying out his criminal intentions and do not require him actually to have harmed (or, in some cases, even identified) his victim.2 Besides the law of attempts, these [End Page 51] new crimes include conspiracy and solicitation, forgery and counterfeiting, the possession offences (drugs, burglary tools, counterfeit money, automobile master keys, etc.), even corruption of youth (children). In all these cases, the law is stepping in to forestall harm, rather than waiting until a harm has already happened.3
What is the significance of criminalizing these types of actions? One possibility is to think of them as a broadening of the legal concept of harm. Traditional crimes, such as murder, arson, and assault, were legal responses to violations of interests in life, property, and bodily integrity. The new crimes, such as attempted arson, grow from the recognition that certain behaviours like attempt, conspiracy, or possession violate society's interest in security, and therefore harm society, even when they do not violate a personal or property interest.4
Another possibility is to think of the introduction of these new crimes as the law's shifting its focus away from the harm element of crime towards what is really essential to the idea of crime: a faulty mental state, such as criminal intent. The criminal law's main purpose, on this approach, is to make society safer by reducing danger.5 A person's actual behaviour is relevant to this purpose only as evidence of a person's dangerousness to society; it is evidence, you might say, of his criminal will. This means that there isn't any need for the law to wait for the actor to harm his victim before charging him with a crime, because the harm isn't, strictly speaking, an element of the criminal offence. If possession of counterfeit money is sufficient evidence of his dangerousness, then the law is justified in stepping in. It doesn't need to wait until he actually passes the fake bills.
The first way of seeing the development of the early intervention crimes thinks of them as a supplement to the basic list of traditional crimes, deriving their legitimacy from those older crimes. So, attempted arson is a crime, because arson is a crime, and, in general, the second order interest protected by criminalizing the attempt is an interest in the security of the first order interest protected by the recognition of the [End Page 52] original crime.6 In contrast, the second way sees this new category of crimes as a potential replacement for the basic list of traditional crimes. So, on this view, arson is a crime because attempted arson is a crime; in fact, arson, stripped of its inessentials, just is attempted arson, because the success or failure of the attempt is irrelevant to its criminality. It is part of the purpose of this paper to argue that this second way of conceiving of criminal attempts (and of conceiving of the trend towards early intervention in crime, in general) is a mistake.
II Punishment for attempts
In Canada, and in many other jurisdictions, the crime of attempt is generally punished less severely than the corresponding completed crime.7 This feature of the criminal code is widely regarded among ordinary citizens as settled and acceptable policy. Nevertheless, some philosophers and jurisprudes,8 in particular those who conceive of criminal attempts in the second way described above, have argued that this general policy is arbitrary and (morally) unjust and that, therefore, criminal attempts ought (legally) to be punished equally severely as are their corresponding crimes.
In my judgment, the argument offered by these reformers is not persuasive and we are doing the right thing to punish attempts less severely than we...