Why do we have “attempt”?

For those of you who haven't taken criminal law, a short primer on “attempt.” Attempted crimes are subject to an incredibly complicated mess of tests: we ask such questions as “how close is the actor to committing the crime” (the dangerous proximity test, which can itself be split into two sub-tests, "how far along" v. "how far yet to go"), “how much do specific acts bespeak a committed intent to commit the crime” (the equivocality test, adopted in very few jurisdictions), “do we allow the defendant to walk away” (the voluntary abandonment test), etc. In general, we want to encourage people not to follow through on a plan to commit a crime, but neither do we want to interfere too early and start criminalizing mere fantasies.

Summary of Attempt Law: We want to give people time to change their mind, and, if they don't, rope enough to hang themselves for the attempted crime.

But attempt doctrine simply doesn't make sense, for a couple of reasons. Let's take two examples. In the first, the police have shadowed a person who intends to shoot a victim (we think). If they want to get him for attempted murder, when should they stop and arrest him? In the second, the defendant is arrested after shooting at the victim – and missing. Do we charge him with attempted murder (meaning that we assume from the fact of the shooting that he intended to kill) or with something more along the lines of criminal threatening (meaning that we assume he shot to miss)?

The first case, where the police know about the suspected acts and simply follow the defendant until he's about to commit the crime, at which point they arrest him for attempt and start trying to figure out which test to apply, is bizarre. Why do we encourage the police to allow the suspects to continue further down the path of criminal conduct? Wouldn't it heighten the deterrent effect if we had them interfere at an earlier point? Even if they can't actually arrest the suspect for anything, their interference would say to the suspect “you are being watched and suspected of attempting X crime – if you do continue, you are at a very high risk of getting caught.” Many studies (and common sense) indicate that heightening police presence has the largest marginal deterrent effect; doing away with the attempt doctrine would encourage the police to make their presence known earlier on and, theoretically, deter those who are deterrable. To analogize: many people speed despite the deterrent effect of a theoretical speeding ticket, but few people actually are cocky enough to speed past a cop car with flashing lights.

The second case, where we convict the defendant who shoots and misses, illustrates how the attempt doctrine allows us to do something that we can't do anywhere else in the law – it allows us to assume that a 100% failure rate is a 100% success rate. We are completely unsure as to whether the shooter was attempting to kill or attempting to scare, but we do know that, if he was attempting to kill, he completely failed. On the other hand, if he was attempting to scare the victim, he (presumably) completely succeeded. The risk of real harm was zero, while the risk of IIED (or some other inchoate tort) was 100 percent. Because we have so clear a split in risk, it's not clear why we feel we have to call upon criminal law in this second scenario – why not just rely on tort law unless we can show an independent evidentiary basis for malicious intent?

In both of the “classic” scenarios, it doesn't look like the attempt doctrine makes a lot of sense.

Furthermore, we have completely separate doctrines in place that allow us to get the more important inchoate crimes. Burglary, for example, is defined at common law as the breaking and entering the dwelling of another with the intent to commit a felony inside; we have specifically defined the crime to let us get around the worst of the mens rea problems. Similarly, assault is now often defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on another – another doctrine that, while incorporating the attempt concept, shifts the primary focus to the “threatening” nature. In tort law, we broaden the assault concept to cover still more situations. We deal with stalking by essentially banning any course of conduct that reasonable people would see as credibly threatening. None of these laws are perfect, of course, and all are subject to over- and under-inclusivity critiques, but they essentially perform the same functions as “attempt” laws without the ridiculous incoherency of the doctrine.

Why do we still have “attempt”? Well, institutional inertia is certainly to blame in large part. There are also problems of sentencing – in certain cases, a conviction for “attempt” is more substantial than a conviction for the exact same acts under another theory of punishment (while the Model Penal Code treats solitication, attempt, completed crimes, and aiding & abetting in basically the same way, many states grade the punishments differently).

But my suspicion is that the longevity of the attempt doctrine has more to do with diction than anything else. The ordinary observer gets confused by the various theories of the inchoate crimes, some of which have unclear names and all of which have tortured definitions. “Attempt,” on the other hand, is a word that people believe they understand (even though they generally don't).

Still, diction is a poor reason to stick with a sorry doctrine.