ARTICLE CONTENTS INTRODUCTION I. THE SOURCE OF AN ATTEMPT'S CRIMINALITY: THE CRIMINALITY OF COMPLETION A. The Transfer Principle B. The Wide and Narrow Senses of "Try" C. Taking Stock II. INTENTION A. The Rationally Constituted Nature of Intention B. Intention-Based Commitments and Responsibility C. Broadening Our Perspective on Intention-Based Commitments D. Taking Stock III. THE LEGALLY RELEVANT SENSE OF "TRY" A. The Guiding Commitment View B. Guidance and "Mere Preparation" C. Neither "Subjectivism" nor "Objectivism" D. Taking Stock IV. TRYING BY ASKING: SOLICITATION AS ATTEMPT A. The Insufficiency of Accomplice Liability B. Act Crimes, Result Crimes: How Courts Should Decide C. Taking Stock V. CIRCUMSTANCES AND "IMPOSSIBILITY" A. Clearing Ground and Setting Aside Legal and Factual Impossibility B. Belief and the Rebuttable Presumption C. Recklessness and the Relevance of the Facts D. Taking Stock VI. ABANDONMENT AND CHANGE OF MIND A. The Problem B. Mitigating Factors and the Ceiling on Attempt's Sanction C. Why Abandonment Mitigates D. The Motive for Abandoning E. Taking Stock CONCLUSION
For good reason, attempts to commit crimes are themselves crimes in every mature legal system. A bungled robbery, a missed shot, a beating that fails to kill despite the perpetrator's best effort, a would-be rape fought off by the intended victim, a smuggling stopped at the border, and many more failed efforts besides possess the marks of wrongful conduct to which the state should respond with criminal penalties. And yet courts and commentators have consistently failed to explicitly offer a coherent theory of this fundamental area of criminal law. Struck by the difficulty of discovering--and the darkness surrounding-principled solutions to adjudicatory problems about attempts, Jerome Hall wrote in 1940:
Whoever has speculated on criminal attempt will agree that the problem is as fascinating as it is intricate. At every least step it intrigues and cajoles; like la belle dame sans merci, when solution seems just within reach, it eludes the zealous pursuer, leaving him to despair ever of enjoying the sweet fruit of discovery. (2)
Despair no longer. This Article offers a framework for thinking about attempts that solves important problems of adjudication--problems to which we currently lack principled solutions despite the great frequency with which defendants charged with criminal attempts appear in courtrooms.
The simple intuitive appeal of the idea that attempts are to be punished belies the complexity and confusion that surround their adjudication. Some cases are black and white, to be sure, but a startling percentage are not. We have a much less clear idea than we need of what, exactly, we have criminalized in criminalizing attempt. It is therefore often very difficult to tell if a particular defendant has committed a criminal attempt; the courts do not know exactly what they are looking for. (3) This confusion manifests itself, for instance, in the many and various descriptions of the conditions that must be met in order for the defendant's conduct to constitute more than "mere preparation," several of which are metaphorical ("direct movement towards" completion, for instance). (4) But it also comes up in many other places, often in contexts in which the problems seem, at first glance, to be more tractable than courts have actually found them to be. Consider three well-known problems.
First, the problem of specifying the line between solicitation and attempt: Ronald Decker paid Wayne Holston $5000 to kill Decker's sister. When Holston asked Decker if he was sure this is what he wanted, Decker replied, "I am absolutely, positively, 100 percent sure, that I want to go through with it. I've never been so sure of anything in my entire life." (5) Unfortunately for Decker, Holston was not a hitman but an undercover cop. (6) Decker clearly solicited murder, a crime for which he could be sentenced for up to nine years in prison in California, where he lived. (7) But did Decker attempt murder? If so, he could be sentenced to life in prison. When does asking someone to commit a crime amount to attempting it?
The court in Decker noted that a long string of decisions in California use the term "slight acts" to refer to conduct in furtherance of a criminal intention that suffices for attempt of the intended crime. (8) Reasoning that since Decker made a down payment, he engaged in such "slight acts," the court convicted Decker of attempted murder. But, of course, the question of whether an act is "slight" or less than slight (whatever that might mean) is no easier to answer than the question of whether Decker tried to kill his sister. The justices' problem was that while they were convinced that Decker tried to kill his sister, they were powerless to explain why that was true, and so they used a bit of entirely uninformative legal terminology to hide their confusion.
Second, the problem of so-called "impossibility": the defendant in United States v. Crow had multiple conversations in an Internet chatroom with someone going by the name of "StephieFL." (9) During the course of their conversations, StephieFL claimed to be a thirteen-year-old girl. In fact, the messages were written by an undercover (adult) police officer. Crow was charged with attempting sexual exploitation of a minor because he tried to convince StephieFL to send him sexually explicit photographs of herself. (10) The completed offense requires a showing that the person exploited is indeed a minor. Did Crow attempt sexual exploitation of a minor, or does the fact that it was an adult he was actually in contact with show that he did not? After all, given that Crow was chatting with an adult, there was no chance at all that his conduct would succeed in sexually exploiting a minor. Under which conditions do the circumstantial elements of the completed crime need to be in place for the attempted crime? And what mental state need the attempter have with respect to those elements when they are absent?
On appeal, Crow noted that the jurors had not been instructed that for guilt they must find that the person Crow was attempting to sexually exploit was in fact a minor. (11) As this is an essential element of the completed crime of sexual exploitation of a minor, Crow claimed that it was also an essential element of the attempt, and so the trial verdict could not stand. (12) Crow was raising a general question to which an answer is required: do circumstantial elements of completed crimes need to be in place for attempts of those crimes (and if not, why not)? But the court, having no idea how to answer this question, did not even try to give a reason for its answer, simply asserting that Crow's argument failed. (13) The judges' problem was that they were quite certain that Crow was trying to sexually exploit a child in the sense of relevance to criminal responsibility. What they were ill equipped to explain was how that is consistent with the fact that the only person Crow was trying to sexually exploit, namely the one he was chatting with, was an adult. (14) The result is that the court lacked the tools it needed to explain why it decided the case as it did.
Third, the problem of determining the relevance or irrelevance of change of mind to attempt: George Taylor forced his way into the apartment of a stranger and, "threatening her with a knife, he made aggressive sexual advances." (15) The court describes what happened next:
Because of her fear of the knife, [the victim] sought to dissuade him--rather than fighting him or screaming--by "trying to make him believe he could be [her] boyfriend and he did not have to do it this way." Despite these efforts, he carried her into the bedroom where he continued to touch and rub himself against her and tried to pull down her pants. After [the victim] "told him he could come to [her] house anytime," he relented and they "went back to the living room and started talking." He took off the surgical gloves he had been wearing during the attack, saying that he was "not going to be needing these anymore." (16)
A bit later, the victim convinced Taylor to accompany her to a liquor store where they could get a bottle before returning to her apartment. On the way out, she ducked back into the apartment and locked the door behind her, leaving Taylor in the hall. Taylor knocked on the door and tried without success to get her to open it. She then called the police. (17) Does the fact that Taylor changed his mind matter to the case? Does it relieve him of guilt for attempted rape? Or does it provide a reason for mitigation of sentence? Or neither?
The court in Taylor is in the same lamentable position as the courts in Decker and Crow. Although the judges are confident that in whatever sense Taylor changed his mind it was not the sense that matters to attempt, they have no idea in what sense change of mind does matter. Hiding their confusion with a legal term, they insist that Taylor's change of mind, while "voluntary," was not "complete." (18) The court then appeals to a definition of "complete" offered by the Model Penal Code, and adopted in New York, according to which renunciation is incomplete if the defendant chose merely to wait till a later time to commit the crime. (19) The problem is that there is no reason at all to think that when Taylor stopped his attack and removed his surgical gloves, he was planning to rape the victim later. He seemed convinced that they would have consensual sex. But the court ignores this glaring fact--perhaps because it can see no other ground on which to reject Taylor's abandonment defense, and the judges are convinced (with good reason, as will be shown in this Article) that it should be rejected.
Judges in the domain of attempts appear to be behaving in the way that legal realists have for years taken to be endemic to judicial behavior: the judges seem to decide first and rationalize later by appealing to legal concepts like slight acts and incomplete renunciation, or by simply rejecting arguments for no stated reason at all. There is little uniformity across jurisdictions, or even within them, in how courts deal with cases of any of these three sorts. Moreover, even courts that handle such cases in a consistent manner seem to have no idea which principles, if any, support their approach.
But as this Article will show, we need not bow to the powerful impulse to describe what is happening in the law of attempt in the terms of the legal realist. There are valid principles on the basis of which to decide attempt cases; they have simply been overlooked. Quite often judges are cottoning on to those principles, even if they are not articulating them. In fact, as will be suggested here, it is no surprise that judges are catching on, for the relevant principles are entrenched in ordinary moral thought of the sort that informs many commonplace interactions between people outside of the legal domain. Those principles are incorporated into the law, it will be suggested, whenever we proscribe completed conduct.
In ordinary life, and in the law, we implicitly prohibit a set of failed efforts, or tryings, whenever we prohibit various forms of completed conduct. So the question of what criminal attempts are--the question of what complexes of conduct and mental states ought to count as attempts for purposes of criminal law-is the question of what is necessary and sufficient for implicit prohibition of the relevant sort. As we will see, the answer is that we have implicitly prohibited conduct guided by an intention that commits the agent to all of the conditions involved in success. To engage in such conduct is to try in the sense of relevance to criminal law. Exactly what this means will become clear as we move forward. Furthermore, as we will see, this deceptively simple set of principles ought to underlie, and to some extent does underlie, the doctrinal criminal law of attempt.
As noted below, the principles motivating the criminalization of attempts have the following doctrinal implications. First, these principles imply that a solicitation is an attempt if the element of the crime that the defendant asks another to produce is a result element of the crime, but not if it is an act element. Second, they imply that circumstantial elements of completed crimes need not be present for the attempt if the defendant believes or intends that they are in place, but they do need to be in place if the defendant is merely reckless in this respect. Third, they imply that while mitigation of sentence is sometimes warranted on grounds of abandonment, it is never appropriate to grant an affirmative defense of abandonment.
To adopt these three doctrinal recommendations would not only provide much greater uniformity across jurisdictions (and within them) in the adjudication of attempt. It would also bring our law in line with the fundamental principles in light of which attempts deserve to be crimes in the first place. Demonstrating these claims is this Article's fundamental aim.
Part I identifies the simple and intuitive grounds for criminalizing attempts. It also argues that neither of two ordinary notions of what it is to try to act can be the sense of relevance to criminal law, given the grounds for the criminalization of attempt. Parts II and III offer an alternative account of the nature of attempt of relevance to criminal law--an account that is motivated by the observations offered in Part I. Part II offers a description of the nature of intention, which is the central component of attempt. The description of intention builds on and develops recent work in the philosophy of action. Part III uses this account of intention to explain what it is to try in the sense of relevance to the criminal law. Parts I, II, and III therefore comprise the fundamental theory of criminal attempt offered in this Article. Parts IV, V, and VI use that theory to solve the problems of solicitation-as-attempt, impossibility, and change of mind, respectively. Thus, the Article first provides a conceptual framework for thinking about attempt and then explains how that framework helps with the construction of justifiable doctrine.
I. THE SOURCE OF AN ATTEMPT'S CRIMINALITY: THE CRIMINALITY OF COMPLETION
A. The Transfer Principle
The confusion in the courts can potentially be remedied by an account of what, exactly, the crime of attempt is. If we know exactly what it is to attempt, then we can check to see whether someone like Decker or Crow or Taylor did indeed attempt the crimes they were charged with attempting. Theorists of attempt who have tried to give such accounts are typically divided between the "subjectivists" and the "objectivists." (20) Struck by the fact that attempts are often harmless--the bullet misses, the child is not abducted, no drugs cross the border--subjectivists conclude that it must be that attempts are properly punished thanks to their mens rea elements. From this point of view, attempts are thought crimes. The fundamental challenge for subjectivists, then, is to explain why it is not monstrous for a liberal society to punish attempts. The task of meeting this challenge is typically undertaken by offering an explanation for how the mental states involved in attempt differ from other thoughts that it would be monstrous to punish (for example, they involve resolute intention of a sort that is not idle, but is manifested in action).
Objectivists, by contrast, start with the thought that if attempts were thought crimes, then it would be monstrous to punish them, and so it must be that attempts are properly punished thanks to the conduct that they involve; the emphasis is on actus reus rather than mens rea. The challenge for objectivists is therefore to explain what it is about the conduct involved in attempt thanks to which it is punishable despite its harmlessness (for instance, it risks harm, is "proximate" to harm, or would result in harm if not prevented).
Neither subjectivists nor objectivists have taken seriously the idea that to attempt is to try. Trying, like all the forms of action that statutes criminalize, consists of mental states and conduct. So the fact that trying involves these two parts does not distinguish trying from any other form of action. Neither subjectivists nor objectivists have tried to explain the criminalization of attempt through appeal to what distinguishes trying from other forms of conduct. This simple fact suggests a middle way worthy of exploration. Perhaps attempts are crimes because of the peculiar thing they are, namely tryings, and not because they involve something else (bad thoughts, bad conduct) that there are independent grounds for criminalizing.
As a first step toward developing this admittedly abstract idea, consider something important that we find in ordinary morality. The father tells the child not to jump on the sofa; no ice cream if she does. Moments later, the child is charging toward the sofa with the intention of jumping on it. The father stops her and says, "That's just what I told you not to do!" Imagine that the precocious child replies, "No, you told me not to jump on the sofa, you didn't tell me not to try to jump on the sofa. But all I managed to do was try." She speaks the simple truth. But she still would deserve to lose out on ice cream. In promising to penalize completion, we also, just like that, promise to penalize attempt. And so it is in the law: typically, criminalization of attempts is accomplished automatically through the criminalization of completion. (21) There is an ordinary notion of trying that we take to be worthy of censure by the state whenever completion is worthy of such censure. It can seem as though we need not say what it is to attempt, for all that needs to be said is said already in describing completion. In this respect, the logic of the law mirrors the logic of everyday morality.
The point can be made in a different way. Imagine that you are asked why it is a crime to attempt murder. In answer you will cite those features of completed murder that make it worthy of criminalization. Chances are, you won't say a word about attempt at all. What this implies is that we take the features of a form of completed action in virtue of which it is properly considered a crime to somehow transfer to the attempt. We criminalize attempts under the following principle, which I will call "The Transfer Principle": if a form of conduct is legitimately criminalized, then so are attempts to engage in that form of conduct.
Under the Transfer Principle, the criminality of the completed crime spreads only to attempts to perform that crime. The criminality of attempted battery derives from the criminality of battery and not from the criminality of, say, theft. The Transfer Principle supports criminalizing an attempt, then, only if a description that applies to the attempt--words that correctly describe what is attempted--is also an apt description of a kind of conduct that is legitimately criminalized thanks to the fact that it meets that description.
So the Transfer Principle has an important implication, which tells us where we should start in thinking about attempt. Determining what is properly criminalized as an attempt requires determining what ordinary notion of trying is implicated in the Transfer Principle. In what sense of the term "try" is trying to jump on the couch implicated in the proscription against jumping on it? Or, to put the question in the legal context, in what sense of the term "try" is trying to commit a crime implicated in the proscription against committing it? In short, we need to know the necessary and sufficient conditions for trying in the way that inherits criminality from that which one is trying to do.
B. The Wide and Narrow Senses of "Try"
We might think this problem is easy to solve: just appeal to our ordinary notion of trying. We could then assess whether particular legal doctrines concerning attempt sort defendants as they ought to do, by seeing whether our ordinary notion of trying sorts them in the same way. However, things are not so simple. There are several "ordinary" notions of trying. In fact, a quick glance at ordinary usage of the term "try" suggests that there are at least two senses of the ordinary term that are different from the sense of relevance to the law. And this leaves us wondering in what ordinary sense trying is implicitly prohibited whenever we prohibit completion. We can see that these two ordinary conceptions of trying are inadequate to our task by seeing that trying, in those conceptions, sits uneasily with the Transfer Principle.
Under one ordinary usage of the term "try," what might be called the "wide" sense of the term, anything that would be true of the person's act were he to succeed in doing as he intends is part of what he is trying to do. (22) We particularly find this usage in cases of mistake. But to see this, start with an example that does not involve mistake. Consider someone who is paid a sum to carry a pound of white powder into the United States from abroad. He is quite certain that the powder is cocaine, but he is not motivated by that fact. So long as he gets paid, he does not care if the stuff is cocaine, or heroin, or talcum. Is this person trying to smuggle cocaine? Or to put the same question another way, does the phrase "to smuggle cocaine" correctly describe what this person is trying to do? In the wide sense of "try," this is an attempted cocaine smuggling not because of the person's state of knowledge, but because the stuff is actually cocaine. It is an attempt to smuggle cocaine because if the intended smuggling had come to pass, it would have been a smuggling of cocaine; and this counterfactual is true because the stuff is actually cocaine. In this respect, the wide sense of trying yields a result that is appropriate to the criminal law. Conduct like that of this hypothetical person is of the sort implicitly prohibited as an attempt to smuggle cocaine when cocaine smuggling is prohibited; the Transfer Principle applies, and the wide sense of trying supports that result. So far so good.
But the wide sense of "try" does not capture what we are after, as we can see from considering other kinds of cases, particularly those involving mistakes. In the wide sense, a person who tries to take a suitcase that he reasonably but falsely believes to be his own has attempted theft. Imagine, for instance, that the suitcase looks exactly like his and happens to have his luggage tag, with his name on it, attached to it. He reaches for the suitcase, acting on an intention to take it, and is stopped by the suitcase's true owner, who explains that the luggage tags were switched by mistake by the airline employees. It's a simple mistake. Is it an attempted theft in the sense of relevance to criminal law? Of course not. But it counts as such under the wide sense of "try," since the following is true: were this person to have succeeded in taking the suitcase, he would have taken something that was not his own.
The problem here is not only conflict with intuition about what should be criminal. We can see this in part by noticing that, had the person in the example just given been charged with the crime of attempted theft, he would have been able to cite the fact that he did not know the suitcase was not his in his defense, and such a defense would have succeeded. Such a person would never, for this reason, be convicted of attempted theft. The problem is that under the wide sense of trying, such a person would be speaking falsely were he to say, in his defense, "I wasn't trying to take someone else's property." A person can respond to an accusation either by showing that he did not do what he is accused of having done, or by showing that, although he did it, he is not rightly punished for it (because it is justified, for instance, or because he was insane when he did it). In the example just described, the first sort of response is appropriate, but it is denied to the defendant under the wide sense of trying; under the wide sense of trying, the defendant was trying to take someone else's property. The problem is that such a person ought not to be understood as needing to account for his behavior in light of the fact that completed theft is a crime; he did not attempt theft in the sense in which the criminality of completed theft transfers, and so he can admit that those who attempt theft need to account for their behavior and simply deny that he is among them. Theft is criminal for reasons that do not transfer to all wide attempts, and so the wide sense of attempt is not the one that informs the Transfer Principle, or the ordinary practice that shows the Transfer Principle to be implicit in everyday thought.
Under an alternative "narrow" conception of trying to act, also found in ordinary language, what a person is trying to do is determined entirely by the set of conditions that he is committed, by his intention, to promoting. The narrow conception has its appeal. Under it, the person who thinks the bag he tries to take is his is not attempting theft, since he is in no sense committed by his intention to making it more likely that the bag that he takes is not his; in fact, he would have held back from trying to take the bag had he known it belonged to someone else. But the narrow conception implies that the smuggler of white powder who believes the stuff is cocaine, but does not care, is not attempting to bring cocaine into the United States. After all, he is not committed to making it more likely that cocaine should be smuggled. Were someone to convince him that the stuff is talcum, he would still carry it because he is being paid to carry it, no matter what it is. Something has gone wrong. The narrow conception of trying to act cannot be the sense that informs criminal law; it provides too stringent a standard for attempt. Put in the language of the Transfer Principle, the criminality of the completed acts in cases of this sort transfers to the corresponding attempts; the attempts were criminalized implicitly when we criminalized completion. But under the narrow conception of trying, these are not attempts of the relevant completed crime. Still, there is some ordinary sense of trying under which criminality does transfer in these cases. What follows is that the narrow conception is not the sense of "trying" under which attempt is criminalized.
C. Taking Stock
We are seeking an account of the kind of trying that is of relevance to the criminal law of attempts. Our first step was to discover the Transfer Principle, which arises naturally from the observation that in ordinary life the prohibition of completion brings with it, intrinsically, the prohibition of some well-defined, although not explicitly defined, class of failed efforts to engage in the prohibited act. The same is true in the criminal law. Criminal attempts are all and only those failed efforts that are implicitly criminalized when we criminalize completion. We then started to look for the necessary and sufficient conditions for membership in that class. We found that neither the "wide" nor the "narrow" sense of trying provided us with an adequate account of those conditions. This leaves us, then, with a question: if it is neither the "wide" nor the "narrow" sense, what sense of trying is of relevance to the criminal law? The answer will be offered in Part III of this Article.
Before we provide the answer, we need to take a detour into the study of the nature of intention. To see the need for it, notice that both the "wide" and the "narrow" senses of trying take intention to be crucial to trying. Part of what it is to try is to intend. The two senses of trying grant different roles to intention in determining what a person is trying to do, but, still, intention is in both cases crucial to trying. In fact, this is no accident, for in any ordinary sense of trying, intention is essential. To identify a third ordinary sense of trying, we need to identify a third possible role for intention to play in establishing what a person is trying to do. But to do that, we need to know more about what an intention is. So, progress on the problem of specifying the land of trying that inherits its criminality from success--the kind of trying that matters to criminal law--starts with reflection on the nature of intention.
A. The Rationally Constituted Nature of Intention
Intention is a distinctive state of mind. Intending an event is different from believing it will occur, for instance. Most who believe that the sun will rise tomorrow do not intend it to rise. Intending an event also differs from wanting it to occur. Someone who wants to eat the chocolate cake for dessert may nonetheless intend to have no dessert at all. Intending differs also from wishing, hoping, and anticipating. This is not to say that intending bears no relationship to these other attitudes. Typically, for instance, those who intend particular events also believe that those events might occur. There is at least this close connection between intention and belief, and there will be similar connections of many different sorts between intention and desire, intention and wish, and so on. But, still, intentions are different from these other mental states.
It is a project in philosophy of mind to determine how intention differs from these other mental states. The project is to specify the necessary and sufficient conditions that must be met for a person to intend a particular event or condition, including but not limited to the event of performing a particular action. (23) It is a closely related project in the philosophy of law to identify the necessary and sufficient conditions that must be met for a person to intend a particular event or condition in the sense of relevance to intentional torts, or in the sense of relevance to formation in contract, or in the sense of relevance to intentional discrimination, or in the sense of relevance to criminal responsibility. However, it is a hypothesis worth exploring that all of the various senses of the legal term "intention" circle around a core notion that has its natural home in ordinary discourse. (24) The law is better when it uses ordinary terms in ordinary ways and employs concepts that bear a close resemblance to those used in everyday life by citizens asked to conform their behavior to law. It is the core notion of intention that has been investigated by philosophers of mind and action. If indeed such a core notion informs the law, then it is important for those interested in criminal responsibility to understand what philosophers of mind have discovered about the nature of intention.
As a first step, consider the following example. A shopper goes to the store, equipped with a list of things to buy. He has a limited budget, so while he needs everything on his list, he also cannot buy more than is on his list. He walks around filling his cart. Meanwhile, a spy follows him and writes down everything that the shopper puts in the cart. At the end of the trip, both the shopper and the spy have a list that matches the world: both of their lists correspond to the contents of the cart. These two lists, however, had very different functions. The shopper's list functioned to make the world match it; the spy's list functioned to match the world as it came to be. Were a third party to remove eggs from the cart, the fact that the shopper's list includes eggs ought to lead him to fix the situation by putting more eggs in his cart; he should change the world to match his list. By contrast, the fact that the spy's list includes eggs (he wrote that down before the third party removed them) ought to lead him to cross it off his list; he ought to change the list to match the world. The shopper's list is like an intention, the spy's like a belief. (25) Intrinsically, both consist in nothing but a representation of the world. But they have different functions.
What this example suggests is that the right way to inquire about how intention differs from other mental states is to reflect on the distinctive functional role of intention. What are intentions for? What do they help us to do that other mental states, such as beliefs, desires, hopes, or wishes, do not help us to do? We should expect that together with an account of the functional role of intention will come an account of principles of rationality governing those who have intentions. If we know what intentions are for, we will also have some idea of what kinds of things a rational agent who has an intention will do, or what kinds of other attitudes, including beliefs and other intentions, he will have. This matters for our purposes here, recall, because we are seeking an account of the notion of trying that is implicitly criminalized when we criminalize completed conduct like murder or rape. Since trying necessarily involves intending, the task of understanding attempt law and describing how it ought to be structured necessarily requires an account of what it is to intend. Therefore, we need to know what distinctive roles intentions play in guiding reasoning behavior in contrast to other mental states that are not essential ingredients of trying.
Michael Bratman's important work on intention, which he began publishing in the 1980s, provides a great deal of insight about the functional role of intention and the associated norms of rationality that govern those who intend. (26) Under what Bratman calls "the planning theory of intention," intention's function is to make the world as intended and to make that happen in a way that allows agents to efficiently achieve long-term goals. (27) So, for instance, it is part of an intention's role to provide for coordination between one's self at one time and one's self at another. The person who intends in the morning to cook spaghetti for dinner will not succeed in doing as he intends unless his midday self helps by stopping at the store for spaghetti. His intention prompts such help by leading the midday self to do just that.
In this example, the intention plays its role by prompting the formation of intentions to undertake necessary means, but often an intention plays its role by instead preventing the agent from acting in a particular way. Deliberation, for instance, is a costly activity. When deciding this morning what to have for dinner, the agent has to focus his energies on thinking that through instead of doing a variety of other things, and he might have to collect information, such as information about who will be joining him for dinner or about what time he will be free to start cooking. This expensive deliberative process culminates in the formation of the intention to have spaghetti. The intention, in turn, functions to cut off later deliberation about what to have for dinner in the absence of new information. It is because the intention settles the question of what to have for dinner that at midday the agent heads straight for the spaghetti aisle rather than rethinking the question of what to buy at the store.
Plans play various roles in making possible and effective organized behavior that takes place over extended periods of time. Reflection on these roles leads to the articulation of several norms of rationality that govern those with intentions. If an agent is rational, then nothing about him will defeat his intentions from functioning as they ought or performing their distinctive roles. A fully rational agent who intends to do something, for instance, will not intend to do acts incompatible with completing necessary means to doing as intended. A fully rational agent who intends to do something will not at the same time believe with certainty that he will fail to do as intended. We can argue over the details of how to formulate the relevant norms of rationality governing those who intend. But our purposes here will not require settling such arguments. Intrinsically, an intention is just like any other mental state that depicts a future state of the world, such as a future state of one's body. What distinguishes intentions from other such representations are the norms of rationality under which a person labors thanks to what the intention is for. An intention places an agent under rational pressures; he must conform to certain requirements of coherence among his intentions, other mental states, and conduct on pain of irrationality.
The intention's primary function is to make the world as it depicts the world, so as to further the agent's goals. If the intention is to play that role successfully, then the agent must not defeat it by constructing conflicting plans or by failing to undertake means to its fulfillment. There are many ways to fail to live up to one's intentions. The basic insight, however, is that many such failures amount to falling short of certain norms of rationality--norms that apply to the agent because he has an intention to act in a particular way.
B. Intention-Based Commitments and Responsibility
There are two interrelated and important points about the insight that intention is characterized and distinguished from other mental states by the norms of rationality that govern those who have intentions. First, the position sits comfortably with a particular sense in which to intend something is to be committed to it. In what is, perhaps, the paradigm case, to be committed to something is not just to have a reason to promote it; that reason must be special to oneself and, in many cases, will derive from one's own will. We all have a reason to promote world peace, but only some of us are committed to it. Those who are have a reason to promote it that derives from the fact that they have chosen to promote it or have devoted themselves to its promotion. Having such a reason involves, undoubtedly among other things, rational pressure to deliberate in certain distinctive ways. A rational person, committed to world peace, is under pressure at least to consider the fact that a particular company provides support to an ongoing war when deciding whether to buy that company's products. Furthermore, such a person is under pressure at least to grant some weight to that consideration when deliberating about what to do.
In fact, these are two forms of rational pressure that we are under when we intend to act. A cashier who intends to steal from his employer faces distinctive rational pressure with respect to both the facts he considers and the weight to give those facts when he deliberates about what to do. In considering whether to under-report the day's sales, he ought, rationally, to consider the fact that by doing so he increases his chances of stealing from his employer. He may decide not to do it--maybe he has another, better plan for stealing--but, still, he is not fully rational if he does not grant that consideration some weight in his deliberations (provided that it occurs to him that it will help him to commit the intended theft, and provided that he does not give up his intention). In short, to intend is to structure one's own rationality. It is to generate reasons for oneself--reasons that do not apply to others. And this is the key to understanding the sense in which agents are committed to that which they intend. The cashier's intention commits him to stealing from his employer; what that means is that he has special self-generated reasons to structure his practical reasoning around stealing. The view of intention under discussion here, that is, has provided more precision to the idea that our intentions commit us to what they depict.
The role of intentions in constituting commitments explains, also, why intention is of such paramount importance to culpability and criminal responsibility. What a person intends tells us a great deal about what kinds of considerations he recognizes as giving him reason, and about how he weighs those considerations in his deliberations about what to do. In fact, it is in part constitutive of those facts. Someone who intends to steal from his employer takes the fact that the contents of the cash drawer are not his as either providing him with no reason not to take those contents, or as providing a reason of insufficient significance to outweigh considerations in favor of stealing. These facts about the person's modes of recognition and response to reasons are of crucial importance to assessing his responsibility. It is partly because of those facts that he deserves censure for the act of taking what is not his; they sit at the root of his culpability. He deserves censure not merely because his employer suffers at his hand--although that is, of course, significant--but also because he has misused, misdirected, his capacities for the recognition and response to reasons, capacities that are distinctive of moral agents. (28)
Intention, norms of rationality, commitment, and modes of recognition and response to reasons constitute a family of intertwined notions bearing deep and important relations to culpability and criminal responsibility. These notions are at the heart of what is distinctive about human agency. They are at the heart of what we respond to in others when we judge them to be blameworthy for wrongdoing, both in and out of criminal law contexts. Our resentment and outrage when confronted with another's wrongdoing, not to mention our guilt and remorse when confronted with our own, is a response to corruption in the way the actor recognized and responded to reasons and thereby guided his conduct. Part of what we are outraged about is that the actor does not care that the property he took was not his, or cared insufficiently about the fact that another would be harmed by his act, or cared too much about lining his own pockets. The actor's intentions and commitments are of particular importance because they are inextricably connected with modes of recognition and response to reasons, but also because there is a meaningful sense in which modes of recognition and response to reasons that have their source in intention and commitment are self-inflicted; they have their source in the agent's will.
C. Broadening Our Perspective on Intention-Based Commitments
The theory of the nature of criminal attempt being developed in this Article began with the appealing idea that attempts are those failures that are implicitly criminalized when we criminalize completion; they are those that support the Transfer Principle. The observation that all forms of trying include intention launched an account of the nature of intention. This account, derived from Michael Bratman's work, was shown to have an important, albeit abstract, implication for our understanding of criminal responsibility: intentions constitute commitments to the conditions they depict by generating special reasons for the intending agent to structure his practical reasoning around those conditions. Because the intending killer's intention depicts another's death, he is under rational pressure to ignore options incompatible with the other's death, and to form intentions to take means, among other rational pressures. This tells us something of great significance to the assessment of his criminal responsibility, for it tells us how he employs and directs his distinctive human capacity for self-consciously recognizing and responding to reasons.
But this is not all that needs to be said about the nature of intention if we are to develop an adequate account of what it is to try to act--an account that ought to, and sometimes does, inform the law governing criminal attempt. We cannot just take what philosophers of action have said and apply it; we need to go beyond what has been discerned about the nature of intention by Bratman; we need to make further philosophical progress. In particular, more needs to be said about the range of commitments that are constituted by our intentions. Reflection on the issue demonstrates that there are at least three different kinds of commitment that one can have to an event, such as an element of a crime, thanks to the fact that one has a particular intention. As we will see, all three kinds of commitment turn out to be important to the proper adjudication of criminal attempts.
In the typical case--so typical, in fact, as to blind us to the existence of atypical cases--someone who intends a particular condition is thereby committed to increasing the likelihood that the world should be in that condition. The effort to live up to this commitment often manifests itself in "tracking" behavior. To engage in "tracking" behavior is to respond to obstacles to the realization of an intended condition by taking steps that sidestep or weaken the obstacles' effect. So, for instance, a person who intends to prevent another from leaving a room will not just lock the door, but will also respond, if he can, when the prisoner picks the lock; perhaps he will then throw the deadbolt, or push the prisoner back into the room, or call in reinforcements, or take some other act that will correct for the facts that are defeating or threatening to defeat the world from matching his intention. In fact, he is under rational pressure to "track" the condition in this way: to fail to do so, absent some further reason, would be irrational. Such rational pressures constitute the commitment to the condition. Since the pressures in question are pressures to take steps to improve the chances of the condition's coming to be, call this a commitment of promotion.
It is very tempting to say that all intention-based commitments to conditions are commitments of promotion. In fact, virtually everyone who has written about intention has assumed this, usually implicitly. (29) Bratman, for instance, insists that among the distinctive norms governing those who intend are norms of "means-end coherence" that place intending agents under normative pressure to intend acts that they believe to be necessary to fulfill their intentions. (30) And, to be sure, there are such pressures wherever there are intention-based commitments of promotion; rationality requires us to intend necessary means to an event's occurrence whenever we are committed to increasing the likelihood of that event's coming to pass. In assuming that norms of means-end coherence apply to intending agents no matter what they intend, Bratman is assuming that every time a person intends an event he thereby incurs a commitment of promotion with respect to that event.
But the assumption is false. Say that I intend to go running at 9:00 AM. As I'm about to start running, I notice a clock that says it's 8:00 AM; I had forgotten that the time changed as a result of the end of daylight saving time. I go running anyway, and I'm done by 8:30. Did I do what I intended to do? Well, I went running, as intended. But I didn't go running at 9:00 AM, which was part of what I intended. On the one hand, then, it does seem that I did all that I was committed by my intention to promoting-, there's no real sense in which I fell short of my goals. On the other hand, however, there is still a meaningful sense in which the world did not match my intention; to fully match my intention, I would have had to run at 9:00 AM, not 8:00. The result: included in the content of my intention was the condition that I run at 9:00 AM. But despite its inclusion in the content of my intention, that condition is not one that I incurred any commitment to promote.
Who cares? As will be demonstrated below, we should care; that is, we who care about criminal responsibility and the mental states required for it should care about this. But a first step to seeing why this matters is to see that our intentions commit us, in a sense now to be described, to intended conditions even when we lack commitments to promote those conditions.
Say that when I am getting ready to run, I see that it is, indeed, 9:00 AM. But I change my mind and decide not to run. When asked why I changed my mind, I say, "Well, it's 9:00 AM." Something has gone wrong. I can reconsider my intention for many good reasons: I remember a pressing 9:15 appointment, the hills are steeper than expected, it starts to rain, there are too many dogs around, etc. If I did not intend to run at 9:00 AM, I could even reconsider in light of the fact that it is 9:00 AM--maybe I think it is too late in the morning to run. What I cannot do in full rationality is reconsider for that reason given that that was part of what I intended in the first place. The fact that the condition is included in the content of my intention, then, places me under a very particular form of rational pressure: it places me under pressure not to reconsider the intention in light of the fact that the condition is met. Call this a commitment of non-reconsideration. As the example illustrates, it is possible to have an intention-based commitment of non-reconsideration with respect to a particular condition without having a commitment to promote the condition.
There is yet another kind of intention-based commitment that one can have to a condition in the absence of a commitment of promotion with respect to the condition. Imagine that, acting on my intention to go running at 9:00 AM, I go running and so I fail to call a friend whom I promised to call at 9:00 AM. The friend complains. I respond, "You can't blame me that it was 9:00 AM when I was running. I would have been happy to run at 8:00." In making this remark, my goal is to show my friend that the condition thanks to which I failed her--namely that I was running at 9:00 rather than 8:00--was not something that I was committed to promoting. The claim is that since I was not committed to promoting that fact, it is not something in light of which I can be held responsible. But, given that I intended to run at 9:00 AM, my friend will see my remarks, quite rightly, as providing no reason to temper her censure. Given that I intended to run at 9:00 AM, I can't shield myself from responsibility by pointing out that I was not committed to promoting that fact. At least, I cannot do so rationally. The condition that accounts for my harming my friend is also one that matches the content of my intention, and so it is not an unintended condition for which I bear no responsibility. Thanks to my intention, that is, I have incurred a particular commitment to the condition that it is 9:00 AM when I run. Call this a commitment of non-complaint. A person cannot rationally complain that the world turns out the way he intended it to be. More precisely, a very particular kind of complaint is silenced, namely the complaint that might be expressed by saying, "That's not what I intended." Even if it were not something that he was committed to promoting, it would still be something that he intended and so something that he would be committed to not complaining about when it came to pass. Commitments of non-complaint are commitments to acquiesce in the world's turning out a certain way--a form of acquiescence that precludes us from pointing to the absence of a commitment to promote that condition in justifying our behavior.
D. Taking Stock
This Part began with Bratman's two-part discovery about the nature of intention: intentions serve distinctive needs in coordinating our behavior over time, and as a result, those who have intentions are under distinctive rational pressures with respect to their behavior and their other mental states. To fail to conform to those pressures is to interfere with the proper functioning of intention. It is these special roles and accompanying rational pressures that distinguish intentions from other mental states. This is also the sense in which intentions constitute commitments to that which they depict: when a condition is depicted by one's intention, then rationality requires various things of a person in light of the presence or absence of that condition. That's what it is to be committed by one's intention to the condition.
These observations then prompted a further and more probing examination of varieties of commitment constituted by an intention, varying in what, exactly, rationality requires of you in light of the presence or absence of a condition depicted by your intention. What we found was that in addition to the familiar commitments of promotion--in many cases, a depicted condition is one that the agent is rationally committed to taking steps to promote--there are commitments of non-reconsideration and non-complaint where rationality requires other things of intending agents, things that fall short of promoting the depicted condition.
This raises the question asked already: why should we care? Why should we think that subtleties about the differences between the kinds of commitments engendered by our intentions matter to criminal responsibility? The answer, as we will see in Part III, is that recognizing these subtle differences allows us to formulate, with a certain degree of rigor, an account of the kind of trying that is implicitly prohibited when we prohibit success. It allows us, that is, to develop a principled account of what a criminal attempt is. And once we are armed with such an account, we will be able to go on, in Parts IV, V, and VI, to make concrete recommendations for how the courts should resolve difficult problems arising in the adjudication of attempts.
III. THE LEGALLY RELEVANT SENSE OF "TRY"
A. The Guiding Commitment View
At the end of Part I, I argued that neither of two ordinary senses of "trying" aligns precisely with the sense of trying that we prohibit in the law of criminal attempts. The "wide" sense, under which anything that would be true of your act were you to do as you intend contributes to what you are trying to do, is too wide; too much is criminalized as attempt under that conception. The "narrow" sense, under which only that which you are committed by your intention to promoting contributes to what you are trying to do, is too narrow; much that ought to be criminalized as attempt under that conception is not so criminalized. I then promised that further reflection on the nature of intention would allow us to articulate the necessary and sufficient conditions of trying in the sense that is consistent with, and supports, the Transfer Principle. Now that we have a view of the nature of intention in hand, I am in a position to fulfill that promise.
Despite its problems, the narrow sense of trying gets something right: what a person tries to do, in the sense of relevance to criminal law, is a function of what he is committed to by the intention on which he is acting. But to limit the range of relevant conditions to those that we have an intention-based commitment to promoting is to overlook the other ways, discussed in Part II, in which our intentions can commit us to particular conditions. This is the key to understanding the sense of trying that is relevant to the criminal law. To try to act, in the sense of relevance to the criminal law, is to have an intention that commits one (in one of the three senses of intention-based commitment) to each of the conditions involved in completion, and for one's behavior to be guided by that intention. I call this the "Guiding Commitment View" of attempt. Under the Guiding Commitment View, to use an example from Part I, a defendant who attempts to take a bag that he falsely but reasonably believes to be his own has not attempted theft under the Guiding Commitment View. His intention does not commit him, in any sense, to the bags belonging to someone else. This condition is not depicted by his intention, and so he incurs no intention-based commitment to it. As we will see in Part V, the Guiding Commitment View, in contrast to the narrow view of trying, also implies that the person who believes the white powder is cocaine, but would transport it even if it were heroin or talcum, and tries to transport it across the border, has attempted to smuggle cocaine. So, in contrast to the wide and the narrow senses of trying, the Guiding Commitment View provides us with a way of conceptualizing these examples that is consistent with the Transfer Principle. As we will see in Parts IV, V, and VI, the Transfer Principle and the Guiding Commitment View also provide us with defensible and independently plausible resolutions of a variety of difficult problems of adjudication.
B. Guidance and "Mere Preparation"
It is important to emphasize that there are two parts to trying under the Guiding Commitment View: intention-based commitment and behavior guided by intention. Much has been said already here about intention-based commitment, but a bit more needs to be said about guidance. To be guided by an intention is to be moved or motivated by it to do that which is intended. To be motivated by an intention is for it to be the case that the causal sequence initiated by the intention would culminate in the world coming to match the intention, were obstacles removed and were the agent not to change his mind.
There is more in this brief account of guidance than meets the eye. The account involves a particular view of how motivation differs from other causal influences of intention. A person intends to climb the stairs. This intention causes two things: it causes him to announce "I will ascend the staircase!" and it causes him to take the first step. The intention motivates the taking of the first step but does not motivate the pronouncement. In making the pronouncement, he is instead motivated by an intention to tell the world of his plans. If you ask him why he took the first step, a sufficient answer is, "Because I intended to climb the stairs." But if you ask him why he made his pronouncement, that answer will not suffice. Making the pronouncement in no way contributes to ascending the stairs, nor does he think it will. It is not rational or worth doing thanks to its contribution to that endeavor, while taking the first step is. But how do we distinguish the two causal influences of the intention to climb the staircase? The intention to climb the staircase does cause the pronouncement; he wouldn't make the pronouncement if he did not have that intention. So why is the intentions influence on the one form of behavior (the first step) motivational, but not on the other (the pronouncement)? The best we can do in answer is to note that were the causal sequence leading to the first step to continue without obstacles and without change of mind, the agent would climb the stairs. The same is not true of the causal sequence leading to the pronouncement. That causal sequence will culminate instead in his informing the world of his plans. Therefore, the right way to determine whether the influence of a persons intention on his behavior is motivational, and so is an instance of guidance, is to ask the following question: had he the ability and opportunity to act, and did not change his mind, would the causal sequence in question have culminated in the intended action?
Efforts on the parts of courts and legislators to concoct "tests" for the act element of attempt can be construed as efforts to describe acts that provide sufficient evidence of motivational influence by intention. They are efforts to identify conduct from which it is safe to infer that the defendants intention was having a causal influence on his behavior of a sort that would culminate in commission of the crime in the absence of obstacles. The driving issue, that is, is whether the defendants acts provide sufficient evidence of guidance by the intention. Reflection on the notion of "proximity" animating Oliver Wendell Holmes's influential "dangerous proximity test" leads to this conclusion. (31) According to Holmes, the defendants act suffices for the act element of attempt if and only if it brought him into dangerous proximity to completion of the crime. But the only coherent and normatively defensible conception of "proximity" in this domain is counterfactual: the defendants act is in "dangerous proximity" to completion if and only if all that needs to be added to get completion is ability, opportunity, and absence of change of mind. What Holmes really wanted to know was whether things had gone so far as to convince us that failure could only be attributed to the fortuitous occurrence of obstacles that defeated ability or opportunity, or prompted the defendant to change his mind. The dangerous proximity test, that is, is implicitly motivated by something very close to the Guiding Commitment View itself.
Demonstrating that all the various tests for the act element of attempt are either indefensible, or amount to efforts to capture this idea, requires looking at the details of all the tests that have been offered, and not just one. For our purposes here, however, it suffices to note that the frustrating imprecision that is necessarily involved in this approach--under what conditions, exactly, is the relevant counterfactual true?--cannot be overcome for principled reasons. Since to try, in the sense of relevance to criminal law, is to be guided by an intention that commits one to success, the best characterization of the act element of an attempt will be an account of what it is to be guided by such an intention. It is highly unlikely that we can do better in distinguishing guidance from other influences of intention on behavior than to ask what would happen in the absence of obstacles or change of mind. Like it or not, that's the question we have to answer to determine if the defendants conduct suffices for attempt.
C. Neither "Subjectivism" nor "Objectivism"
The Guiding Commitment View preserves exactly the idea we find in ordinary moral thought--an idea expressed in the Transfer Principle. We justify criminalizing an attempt to commit a crime by citing the features of the very crime attempted. We do not justify criminalizing an attempt to do one thing by citing the features of something other than what was attempted in explanation. So, we need an account of trying to act that preserves this tight connection. We need an account that allows us to identify the attempt in the way that exhibits congruity between it and completion. The Guiding Commitment View serves the turn. It identifies the sense of trying that is relevant to criminal law.
The truth about attempts has eluded theorists of criminal law precisely because they start in the wrong places. They do not start with the question of what kind of failure, what kind of trying, we have implicitly prohibited in our prohibitions of success. As indicated earlier, subjectivists start with the idea that attempts are thought crimes involving some special species of thoughts that it is acceptable to criminalize (such as resolute intentions). Objectivists start with the idea that attempts are crimes involving actions that approximate, or bear some close relation to, harmful conduct of the sort that we typically criminalize (such as conduct that is "proximate" to completion, or that imposes a serious risk of completion).
What subjectivist and objectivist approaches share is the belief that the first and most natural description of the conduct involved in a criminal attempt is a description under which it is not in any sense wrongful. "All he did," we say, "was light a match. What could be criminal about that?" The subjectivist embraces the claim that the act is not in itself wrongful and concludes that the criminality of the attempt must derive from the accompanying mental state; all he did was light a match, but he lit it with the intention of burning down another's house. The objectivist, by contrast, seeks an alternative description of the act under which it is wrongful in explanation of the attempts criminality; he did not merely light a match, he imposed a serious risk that another's house would burn down. The problem with both approaches is that the first and most natural description of the act is a description under which it is wrongful. The act is the act of trying to burn down another's house, or trying to have sex with a minor, or trying to bring drugs across the border. These are wrongful, prohibited behaviors; they were prohibited when we prohibited burning down another's house, having sex with a minor, and bringing drugs across the border. Trying was prohibited when success was prohibited. The place to start in thinking about attempts is with an effort to identify this kind of trying. And, as we have seen, this leads to the Guiding Commitment View.
In fact, something in the nature of the conceptualization of criminal behavior endemic to criminal law and its practice gives rise to the error shared by subjectivists and objectivists alike. It is because criminal law practitioners and theorists insist on dividing crimes into actus reus and mens rea components that they have overlooked the right way to start thinking about attempts.
The reason is that implicit in the divide is the thought that the actus reus and mens rea components of crimes make independent contributions to the criminality of the conduct. This independence idea prompts the thought that we should be able to explain the contribution to criminality of the actus reus without making any reference to the mens rea. Often this is indeed the case. Burning another's property is morally salient; it is something one needs to answer for. Intending to burn another's property is also morally salient. When we put these two things together, there is crime. In this case, the act has features that make it morally salient independently of the mental states that gave rise to it: someone's property, after all, was burned; someone's legally protected interests were invaded. And so in the case of completed arson, it is both useful and clarifying to specify the actus reus and the mens rea as distinct and conceptually separate conditions. But if we assume that this is true of all crimes, then we quickly find ourselves on the road to either subjectivism or objectivism, for the truth is that many an attempted crime is not wrongful under any description that applies to it independently of the mental states that gave rise to it. The conduct in question is wrongful alright, but only under descriptions that are not mens rea-independent, namely descriptions that specifically identify the fact that the conduct is a trying. To describe the act as trying to burn another's property is to describe it in a way that implicates and refers to the mental state that gave rise to it, namely an intention that committed the actor to each of the features of completed arson. Given that students of criminal law are taught to characterize actus reus and mens rea independently, it is no wonder that theorists take the central puzzle about attempt to derive from the thought that it involves conduct that is not on its face wrongful; they have been taught to attach a description to the act that leaves out exactly that in virtue of which it is wrongful, namely that it is an instance of trying to do something wrongful. The tidy conceptualization of crimes as consisting of distinct actus reus and mens rea elements, useful and illuminating as it is for understanding the structure of most, if not all, completed crimes, misleads when it comes to attempt.
When we avoid the error of assuming that actus reus and mens rea make independent contributions to the criminality of the behavior they constitute, we find ourselves on the middle way. After all, if a defendant fires a gun and misses, and if the criminality of his action emerges from the fact that the actus reus and mens rea together constitute the defendants trying to kill, then we need to know in what sense of "trying" this is true. The answer is that it is true in the sense of trying that is implicitly criminalized when we criminalize completed homicide or any other completed crime. From here we find ourselves with the Guiding Commitment View, for this view identifies all and only the failures that are implicitly prohibited when we prohibit success. Further down this road, as we will see in the next three sections, lie solutions to many difficult problems encountered by those tasked with adjudicating attempted crimes.
D. Taking Stock
Acting on the hunch that adjudicatory problems about attempt can be solved by a defensible theory of what an attempt is, we were led to an account of the criminalization of attempt, namely the Transfer Principle. Acceptance of the Transfer Principle allowed us to formulate the question of what an attempt is in a way that made it tractable. That became a question about what sorts of tryings are implicitly prohibited when we prohibit success. Reflection on that question first led us to an account of intention as a source of a range of commitments to those conditions that are depicted by the intention. And this account led us, in turn, to an account of trying, namely the Guiding Commitment View, according to which to try to commit a particular crime is to have an intention that commits one to all of those conditions involved in completion of the crime, and to be guided by that intention. It is in that sense of trying that trying is implicitly criminalized when we criminalize completion.
In difficult attempt cases, what the defendant did--or even what mental state he did it with--is not in dispute. What is in dispute is whether what he did constituted an attempt of the sort he is accused of having committed. The Guiding Commitment View provides just what the inquiry needs: an account of the necessary and sufficient conditions that are met when a person has indeed committed an attempt, in the sense of "attempt" that matters to criminal law. This should make us optimistic that the Guiding Commitment View can help us with our adjudicatory problems. It is to those that we now turn.
IV. TRYING BY ASKING: SOLICITATION AS ATTEMPT
Return to Ronald Decker, who, thinking he was dealing with a hitman, paid an undercover detective to kill his sister, and who, fighting for something less than a life sentence, argued that while his solicitation was admittedly a crime, it did not amount to an attempt. In 2007, the Supreme Court of California announced that Decker was, in fact, attempting to murder his sister. (32) In making this announcement, the court overturned a case from the 1970s, People v. Adami, (33) another case in which the defendant paid an undercover police officer to kill someone but in which the court ruled that a solicitation did not amount to an attempt. In fact, there is no standard view across jurisdictions on the matter. Pay someone to kill in Idaho, Nevada, or South Dakota, for instance, and you've committed only the lesser crime of solicitation; (34) pay someone to kill in Georgia, Iowa, New York, or Ohio, and you've attempted the murder. (35) We find even greater variation when we consider crimes other than murder. If you ask a child for oral sex, have you attempted sexual battery? (36) If you ask a minister to marry you to your niece, have you tried to marry someone incestuously? (37) If you ask someone to bribe a witness, have you attempted to bribe a witness? (38) If you ask someone to burn down a barn, have you attempted arson? (39) Courts regularly have to answer questions like this. They answer them differently in different places and in different times, and they give different answers when different crimes are involved. (40) In fairness to the courts, it is not easy. The issue stands at the intersection of three independently thorny parts of the criminal law: attempt, solicitation, and complicity, and if we aren't careful, we find ourselves embroiled in all but intractable questions about causation as well. (41)
The Guiding Commitment View can help us to identify the crucial questions that need to be answered in order to provide a principled solution to the problems faced by courts. The solution proposed here is as follows: in the most difficult cases, if the defendant has asked another person to bring about an event that is a result element of the completed crime, then the defendant may have thereby attempted the crime; if, however, the event that the defendant has asked another person to bring about figures into the definition of an act element of the completed crime, then the defendant has not attempted through his solicitation. Thus, a distinction that seems to be merely formal--the distinction between act elements and result elements of crimes--turns out to be of substantive importance.
A. The Insufficiency of Accomplice Liability
The Decker case, and many others like it, defies resolution through appeal to doctrines concerned with complicity, and this is part of the reason why courts like the Adami court have concluded that such cases do not involve attempt. Had Holston attempted the murder that Decker asked him to commit, then we could have conceptualized Decker as an accomplice to Holston's attempt. (42) But Holston didn't go through with the murder. (43) If Holston had per formed an act that would have sufficed for an attempt had he, Holston, in fact intended to commit the crime, then perhaps we could have employed a legal fiction according to which Holston's act is treated for legal purposes as though it were Decker's. This is what we do in cases in which, for instance, the defendant asks a child to put poison in another's coffee, and the child complies. (44) But Holston took no steps at all that could be construed as steps toward committing murder. (45)
Intuitively, it seems that some cases that complicity doctrines are incapable of resolving are attempts, and some are not. (46) For instance, say that the defendant is holding a quantity of heroin and asks another person to take it--maybe the defendant wants to kick the habit but just can't bring himself to destroy the stuff; the solicited party refuses. In such a case, the defendant has solicited possession of heroin. But he obviously hasn't attempted possession of heroin by so doing. After all, what the defendant is trying to do is to dispossess himself of the heroin. Imagine, to give another example, that the defendant asks another to try heroin and is thereby acting on an intention that the other should use; the solicited party refuses. Did the defendant attempt to use by soliciting the other? Of course not. Imagine that the defendant asks another person to drive himself home knowing full well that the solicited party is far too drunk to drive legally; the other refuses. The defendant has clearly not attempted to drive drunk in such a case, even if his conduct is as wrongful, or even more wrongful, than such an attempt would have been.
By contrast, imagine that the defendant asks another to carry a quantity of heroin across the border into the United States; the other refuses. Has the defendant attempted to import drugs into the United States? It seems so. Imagine that the defendant asks another to deface a piece of public property; the other refuses. It seems that the defendant, in such a case, has attempted to damage public property. If examples fitting facts of these sorts are constructed with sufficient care, then all will be irresolvable through accomplice liability principles. Intuitively, then, some such hard cases are, and some are not, attempts. What facts are being tracked by our intuitions? What principles ought a court use to decide in such cases?
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|Title Annotation:||Introduction through IV. Trying by Asking: Solicitation as Attempt A. The Insufficiency of Accomplice Liability, p. 92-124|
|Publication:||Yale Law Journal|
|Date:||Oct 1, 2014|
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