The Illustrated Guide to Criminal Law
Chapter 9: At Least You Tried
Attempt pg 13: Attempt is a Completed Crime
Well, let’s look at the purposes of punishment again:
Rehabilitation? Flint’s trying to commit a crime? He’s gone beyond mere planning, and has taken steps to carry out the crime? Sounds dangerous. Maybe he needs correction.
Deterrence? We don’t want people actively trying to commit crimes—what if they succeed? And we certainly don’t want Flint to try to kill you again.
Removal? Dude, Flint is dangerous. He needs to be locked away. The mere fact that he hasn’t succeeded in killing you yet doesn’t have anything to do with it.
Retribution and Retaliation, however, don’t really apply. Flint hasn’t done any harm yet, so there’s nothing to react to.
Average Joe talking head
AVERAGE JOE
No harm, no foul?
And this is where we see how big a role retribution plays as a purpose of punishment. Because although attempted crimes do get punished, they don’t get punished as severely as completed ones.
In principle, there’s no difference between someone who attempts a murder and someone who succeeds in killing. Both are equally bad, pose the same dangers, and have the same criminal intent. The only difference is when they got caught—a matter of pure luck that has nothing to do with their “badness.”
But there is a difference in punishment (in most jurisdictions). And the only reason is because there’s nothing to avenge.
Kind of a dark thought, to think that we react differently to essentially the same crime based on whether we feel a need for not justice, but revenge.
That is not quite what he meant. The comic said that retribution does not apply in this case. So what most of us think of as justice does not apply in this case. The three purposes of punishment that do apply, rehabilitation, deterrence, and removal, have less to do with conventional notions of justice and more to do with utilitarian concerns such as maintaining public safety and in pursuance of that making law-enforcement and crime-prevention measures effective.
So then would the difference between an attempted crime and a completed crime be an issue of the depravity of the acts? Because if you try to kill someone, but fail, its not as horrific as if you succeed?
I’m not sure “depravity” is the right word. If you swung an axe at someone and missed, were you any less depraved than if you’d connected?
I’d suggest that the lesser punishment for attempt isn’t because you yourself were any less bad, or because what you did was any less bad, but because the consequences of that act were less bad.
Isn’t this a matter of deterrence as well though? If you know that trying to kill someone gets punished but succeeding gets punished worse, you might still feel you have a reason to back out before the end. On the other hand, if once you’re started on the attempt, the punishment is the same regardless, you’d feel you’re in too deep to back out now. Thus by having the punishment escalate the further in you get, we create an incentive to stop while you still can.
Perhaps ironic from the perspective of the intended victim. If someone makes an attempt on me, I want them out of action for as long as possible, if they succeed, I don’t care what happens. Hey society, put yourself in my place don’t give him a break just because he missed.