Justifying Lesser Sentences for Attempts in Criminal Law

Introduction

In the casebook commentary on criminal attempt, there was near universal agreement that attempts should be punished equally to completed crimes. Regardless of this academic consensus, most jurisdictions generally give lesser punishments for attempts (with some exceptions). Why? Is there any explanation? And why would most people (or at least lawmakers, apparently) intuitively think that the law has it right and the academics have it wrong? This essay will first explore reasons why legal systems might have lesser sentences for attempt, then explain why it is justified, and finally discuss why these inquiries are important.

Why We Punish Less

Role-Casting

As one way to justify locking people up, the state casts criminals as ‘bad,’ which unifies the rest of us as ‘good’. At the sentencing stage, the state can then juxtapose ‘bad’ people against each other: if this bad guy deserves five years in jail just for trying to do something, and this bad guy actually did it, then he must deserve at least ten years, etc.

A given punishment for attempt makes it easy to rationalize a more severe punishment for the completed crime, justifying all punishment by creating a hierarchy of roles. If punishments were bunched too closely at the high end, the roles would be less distinct or easily comparable, meaning less intuitive to people, who in turn might raise more questions. But why is this hierarchical role creation is so appealing?

Hierarchical Expectations

Nearly every society around the world is ruled by hierarchies. It is unclear how much of our hierarchical structures are due to instinct or learned historically or culturally- e.g., the nature of capitalism in America. Without touching the debate over assigning values in power hierarchies, the ordering of things generally is so pervasive that it probably feels natural and self-evident. This tendency to look for order at least partially explains why the role-casting works- it creates a ‘natural’ order of crimes, with attempt logically falling below completion.

We thus create mental distances between different crimes, so the ‘distance’ between the punishments of any two crimes becomes arguably as important as the harshness of any individual punishment. Given that death is (maybe) the worst punishment we currently allow, the punishment for attempted murder, for example, must be lower for the attempt to satisfy the mental distance and hierarchy expectations. These reasons at least partially explain why jurisdictions probably punish attempts less severely despite academic disbelief, but there are also reasons why they should.

Why We Should Punish Less

Real Risk Creation

The main casebook justification in the philosophy of punishment (and the MPC) is that we should punish the actor’s culpable mental state/intent. As such, many academics claim reduced punishment for attempt should not be based on the ‘luck’ of completing the crime or not. Even if we concede that bad intentions are something worth punishing, is that really the only basis for punishment we should use?

In attempt law, the logical end of the desire to punish bad thoughts would be 1984 -style Thought Police, meaning we would all eventually be behind bars. And while the MPC and many jurisdictions require a substantial step before punishing an attempt, the step is only an evidentiary tool to confirm intent, and the actions themselves are not what is being punished- otherwise the substantial step would be a complete crime itself. Alternatively, another justification could be focusing on the risk the actor actually creates- how dangerous they can actually be in the world, not just in their head. Are ineffective or half-hearted criminals equally as dangerous, and thus deserving of equal punishment? While some may disagree, and in practice it might make no difference, it makes some sense to concern ourselves in criminal theory at least as much with what a criminal can do as what he can think.

Reevaluating the System

Another reason for lesser punishments for attempt (aside from attempts maybe just being lesser crimes) is that punishment is already generally too harsh and ineffective for all crimes, so any reduction is beneficial. The criminal justice system often gives disproportionate punishment to a disproportionate set of people, and does little to prevent recidivism. Given limited resources, it is not advantageous for society to put more people away for longer periods of time until we have some evidence that it is actually doing something positive.

There is obvious debate on the deterrent effect of jail time. But if one accepts the premise that locking people up for extended periods of time only makes them more angry, dangerous and less able to reintegrate into society when they get out given the lack of focus on rehabilitation, or even that until we know if incapacitation works we should err in favor of those being punished and not just hang them out to dry, then increasing punishment for attempt can only make things worse. The inherent danger of doing so is that given our hierarchical mental expectations, this would only lead to further increasing punishments for completed crimes to keep a comfortable distance from attempts, a ratcheting-up tendency already natural to the political process of being ‘tough on crime.’

Why it Matters

As mentioned, much of the casebook argument is to avoid differentiating punishment based on ‘luck.’ This assumes bad luck creates failed attempts, but maybe there are other reasons criminals fail. Perhaps the alleged criminal did not really want to do the crime, and hence stopped short of completion, or acted carelessly enough to get caught. Anyone can think of times when they didn’t really want to do something but did it anyways, giving only a half-hearted attempt which they knew would fail.

These kinds of inquiries are not unique to attempt law. For example, instead of writing off Joe Stack as crazy, maybe we should look at why he did what he did so we can prevent it next time. Likewise, instead of assuming those who attempt are as bad as those who complete, perhaps we should do some research to learn why they failed, as it might shed some light on what punishment is actually appropriate for their ‘crime.’