A person is guilty of an attempt to commit a crime when, with the intent to commit a crime, he or she engages in conduct that tends to effect the commission of such crime" (N.Y. Penal Law §110.00 (2016)); "Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished..." (Cal. Penal Code §664 (2016)); "A person commits the offense of an attempt when, with the intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense" (720 Ill. Comp. Stat. 5/8-4(a) (2016)).]
At common law, attempts were considered misdemeanors. However, today, the usual punishment for an attempt is typically a reduced factor of the penalty for the completed crime. In California (Cal. Penal Code §664 (2016)), an attempt carries a maximum term of not more than one-half of the maximum term authorized for the completed offense. Similarly, under New York Penal Law, which employs a punishment classification system for offenses, the sentence for an attempt is generally one classification below that for the completed crime (§110.05 (2016)), except for certain offenses, notably drug offenses, where the punishment is the same.
Since the Model Penal Code (MPC) proposals, many states have deviated from the predominant scheme by making the punishment the same for the attempt as for the crime attempted, except for crimes punishable by death or life imprisonment, such as murder, kidnapping, and aggravated rape. For instance, Connecticut General Statute Ann. §53a-51 (2016) reflects this approach (Kadish et al., 2016, p. 641).]
An attempt is akin to committing the crime in full. For instance, consider a child who, unaware of the concept of stealing, tries to take a couple of dollars from his or her parent's wallet to buy ice cream or candy without asking. We must intervene to prevent them from repeating such behavior, necessitating both punishment and an explanation as to why it is wrong. While taking a few dollars for ice cream or candy may not seem significant, allowing any attempt without consequences could enable the behavior to persist and escalate over time. While we understand that mistakes can happen, some form of punishment is necessary, even if it is relatively minor, to ensure the individual comprehends the wrongdoing.]
In support of lighter punishment for unsuccessful attempts, Professor Theodore Y. Blumoff maintains (in "A Jurisprudence for Punishing Attempts Asymmetrically," 6 Buff. Crim. L. Rev. 951, 958, 973 (2003)) that "most criminals [have] been 'profoundly disadvantaged by unjust social institutions'" and "often have suffered from bad luck which we can hardly imagine." Thus, he argues that less severe punishment for attempts that miscarry does not reward good luck but instead serves as a partial "counterweight" to the overall bad luck of the offender's social circumstances. For another defense of lesser punishment when the harm does not occur, see Michael Moore, "The Independent Moral Significance of Wrongdoing," 1 J. Contemp. Legal Issues 1 (1994); for a critique of Professor Moore's argument, see Kimberly D. Kessler, "The Role of Luck in the Criminal Law," 142 U. Pa. L. Rev. 2183 (1994). For further discussion, see Sanford H. Kadish, "The Criminal Law and the Luck of the Draw," 84 J. Crim. L. & Criminology 679 (1994); Stephen J. Schulhofer, "Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law," 122 U. Pa. L. Rev. 1497 (1974) (Kadish et al., 2016, p. 644).]
Some people have experienced bad luck. Additionally, there are individuals who may unknowingly commit a crime while trying to do something good. Applying extreme punishment may not provide a comprehensive solution; instead, it can lead to more problems. This concern has been raised by me and other students. We cannot realistically expect everyone to be aware of every intricate law and comply perfectly with all regulations. Thus, we should exercise more leniency, especially in cases of accidents, mistakes, and attempts that have not escalated too far, although this leniency should not be seen as an excuse.
According to Model Penal Code §5.01, Comment at 47 (Tent. Draft No. 10, 1960), the draftsmen concluded that the inclusion of a substantial step as a requirement for attempt liability serves two purposes. Firstly, it ensures the establishment of a firm criminal intent. Secondly, it prevents attempt liability and its severe penalties from being applied to relatively distant preparatory acts. Nonetheless, by not mandating a "last proximate act" or its various analogues, this approach allows for the apprehension of dangerous individuals at an earlier stage compared to other approaches, without granting them immunity from attempt liability.
Can an attempt to perform a legal act ever be considered criminal? To answer this question, let's examine NY Penal Law §110.10. Does this law make sense? Why or why not?
United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973)
Father Berrigan, an imprisoned Vietnam War resister, was convicted of attempting to violate a federal statute that criminalizes taking anything into or out of a federal prison contrary to regulations set by the attorney general. The attorney general had established a regulation prohibiting such traffic "without the knowledge and consent" of the prison warden. Berrigan's conviction was based on evidence showing that he had smuggled letters into and out of the prison using a courier, believing that the warden was unaware of the situation. However, it was later revealed that the warden had prior knowledge of the arrangement and had agreed to allow the courier to pretend cooperation in the plan. As a result, the court reversed the conviction.
Generally speaking, factual impossibility occurs when extraneous circumstances, unknown to the actor or beyond their control, prevent the consummation of the intended crime. A classic example is when someone tries to steal a wallet by putting their hand in the coat pocket of another, only to find the pocket empty.
On the other hand, legal impossibility arises when the intended acts, even if completed, would not amount to a crime. It applies to circumstances where (1) the motive, desire, and expectation are to perform an act in violation of the law; (2) there is an intention to perform a physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime.
If intent to break the law were the sole criterion considered in determining criminal responsibility, we could uphold the conviction. It is evident that Father Berrigan intended to send letters to Sister McAlister. Typically, exchanging letters is not a federal offense. However, when one of the senders is in prison, the sending may or may not be a criminal offense, depending on whether it is done within normal channels with the consent and knowledge of the warden. If the letter is sent without the knowledge and consent of the warden, it becomes a criminal offense, and so does the attempt, as both the intended consequence and the actual consequence are criminal.
In this case, we encounter a third situation where there is a motivation, desire, and expectation of sending a letter without the knowledge and consent of the warden, and the intended act is performed. However, unbeknownst to the sender, the transmittal is accomplished with the knowledge and consent of the warden. When applying the principles of the law of attempt to the instant case, the writing of the letters and their copying and transmittal by the courier are considered the act.
What the government did not prove—and could not prove because it was a legal impossibility—was the "external, objective situation which the substantive law may require to be present," namely, the absence of knowledge and consent of the warden. Without such proof, the consequence or result did not constitute an offense that violated the federal statute. Simply stated, attempting to do something that is not a crime is not attempting to commit a crime (Kadish et al., 2016, p. 683).
In this case, Father Berrigan attempted to send letters to Sister McAlister. Now, attempting to send a letter to an inmate secretly is a crime if the warden does not know. However, in this situation, the warden knew but looked the other way. This was not considered a crime because the warden was aware of the arrangement. The person did try to send the letters in secret for their own reasons, but the warden looked the other way.
If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as the person believed them to be (New York Laws, n.d.).
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