Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown, Ph.D.
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Attempt is the most frequently charged of the inchoate offenses. The essence of attempt is making an effort to accomplish a particular criminal purpose. Another way to look at it is that “an attempt, by nature, is a failure to accomplish what one intended to do.” The issue of punishing those that attempt crimes is long and controversial. The ancient Greek philosopher Plato weighed in on the subject in his day. Plato argued that an individual who possesses the purpose and intention to slay another should be regarded as a murderer and tried for murder. Plato, however, also recognized that an attempt does not result in the death of the victim and that banishment rather than the death penalty would be a suitable penalty. From this ancient sentiment, we can gather that there is some consensus that attempts should be criminal, but the criminal liability should be less than for completed crimes. Interestingly, The early common law did not punish attempts.
The criminal act element of attempt can be satisfied in two ways:
- If the person purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believed them to be; or
- If the person engages in conduct that constitutes a substantial step toward the commission of an offense (whether or not the attendant circumstances are as he believed them to be)
When considering crimes that require a specific result (such as the death of a person in murder), the person commits the offense of criminal attempt if he or she purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause the result. Conduct cannot be considered a “substantial step” unless it is strongly corroborative of the person’s criminal purpose.
The Model Penal Code, in section 5.01(4), recognizes the affirmative defense of abandonment in those instances in which an individual commits an attempt and “abandoned his effort . . . under circumstances manifesting a complete and voluntary manifestation of criminal purpose.” The important point is that an individual can commit an attempt and then relieve himself or herself from liability by voluntarily abandoning the criminal enterprise. A renunciation is not voluntary when motivated by a desire to avoid apprehension, provoked by the realization that the crime is too difficult to accomplish, or where the offender decides to postpone the crime or to focus on another victim.
Modification History File Created: 07/12/2018 Last Modified: 07/12/2018
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