Justifying Lesser Sentences for Attempts in Criminal Law

-- RorySkaggs - 13 Apr 2010

Introduction

In the casebook commentary on attempt law, there was almost universal agreement that there is no principled justification for having lesser sentences for attempts as opposed to completed crimes. Regardless of this academic consensus, however, all jurisdictions do, in fact, give lesser punishments for attempted crimes. Why? Is there any explanation? And why would most people intuitively think that the law has it right and the academics have it wrong? This essay will explore first some reasons why legal systems have lesser sentences for attempt, and then explain why it is justified, both ‘logically’ and realistically.

Section I: Why We Punish Less

You think that guy’s bad? Check this out: the effect of roles

As a famous playwright once wrote, “All the world's a stage, /And all the men and women merely players.” This rings especially true for criminal trials and the criminal justice system. As one way to justify (or at least prevent questioning) locking people up (or killing them), the state must sell ‘them” as ‘bad’ people to all of ‘us,’ the ‘good’ people. At the sentencing stage, the state can juxtapose certain ‘bad’ people against each other: these people deserve X number of years in prison, but look at what these people did- they deserve much more.

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. This structure occurs naturally when comparing attempted crimes and completed crimes: a given punishment for the attempt makes it easy to rationalize a more severe punishment for the completed crime, thus achieving the state’s goal to punish by creating a hierarchy of roles. The question then becomes why this hierarchical role creation is so appealing.

Need for Hierarchy

In American society we are surrounded by hierarchies. While it is unclear how much of this is innate (dominance hierarchy found in many mammals) or cultural (nature of capitalism structure), the ordering of things is undoubtedly persuasive to the average American mind, and hierarchy is so pervasive that it psychologically feels natural. 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 one type of crime and another, 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 all jurisdictions probably punish attempts less severely despite academic disbelief, but there are also reasons why they should.

Section II: Why We Should Punish Less

Rethinking Justification for Punishment- Real Risk Creation

The main justification in the current philosophy of punishment (or at least the Model Penal Code) is that we should punish the actor’s culpable mental state/intent. As such, most academics claim reduced punishment for attempt should not be based on the ‘luck’ of completing the crime or not. While it seems exceedingly unlikely that mental state is the only (or even the main) reason we punish, and the reason for failed attempts is probably not usually about luck (as discussed below), even if we concede that bad intentions are something worth punishing, is that really all?

In attempt law, wouldn’t the logical end of the desire to punish bad thoughts be ‘thought police’? Perhaps some might actually want 1984 -style Thought Police, but we would all eventually be behind bars. Alternatively, we could also focus on the risk the actor actually creates- how dangerous they can actually be in the world, not just in their head. Are ‘bad’ or half-hearted criminals equally as dangerous, and thus deserving of equal punishment? While some may disagree, it makes some sense to concern ourselves at least as much with what a criminal can do as what he can think.

Psychology of Attempts

As mentioned, much of the philosophical argument is to avoid differentiating based on ‘luck.’ This assumes bad luck creates failed attempts, but maybe there are other reasons criminals fail. Perhaps in the back of their mind, 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.

Given that so much crime is done by (or at least prosecuted against) desperate people in desperate situations, it seems reasonable that they often did not exert the requisite effort because they didn’t want to do it in first place (implicating psychological questions about action theory, etc). If we really are concerned with culpability and intent, and evidentiary proof beyond a reasonable doubt, it is unclear why attempt should be blindly chalked up only to luck without exploring the real reasons why crimes fail.

The Real Nitty Gritty

The final reason for lesser punishments for attempt might be a bare rationalization, but regardless the basic idea is that the system is broken and any way to reduce punishments is worthwhile. Under its current widespread application, the criminal justice systems gives disproportionate punishment to a disproportionate set of people, and does little to prevent them from recidivism. Given limited resources and the un-rehabilitating nature of prisons, it is not beneficial for society to put more people away for longer periods of time. If the baseline punishments are already ineffective (or at least unguided), it makes little sense to ratchet up sentences for what we cognitively consider less harsh crimes. The inherent danger is that given our hierarchical mental constructions, this will only lead to increasing the high-end to keep a comfortable distance from the low, a tendency already natural to the political process of being ‘tough on crime.’ Thus, attempt should be punished less for the reasons stated above and as a brute check on the severity of the criminal justice system itself.

Re: Why we punish less

There is always the mainstay retributive theory of justice, the "eye for an eye" principle. We punish completed crimes more than inchoate crimes because the actual societal harm suffered from the former is greater than the latter.

-- MatthewZorn - 19 Apr 2010

Matt- good point. This is probably part of the 'real risk creation' thing, but only in the background. I think I focused so much on meeting the academic viewpoint on its own terms that I left out entirely different justifications that would explain things. Something for me (or whoever is revising this) to keep in mind during editing, although I'm not sure how an eye for an eye would work smoothly with attempts, given that arguably no harm has been created so maybe there would be no reason to punish at all (not a very realistic option).

-- RorySkaggs - 21 Apr 2010

On the other hand, my focus was not on why to punish at all, but only why to have reduced sentences, so maybe the retribution theory is not as helpful here as it might be elsewhere.

-- RorySkaggs - 22 Apr 2010