Distinction Between Preparation and Attempt in Law of Attempt

Distinction Between Preparation and Attempt in Law of Attempt

The Law of Attempt states that a person is guilty of an attempt to commit a crime when his actions constitute substantial steps towards the completion of the crime intended. Under common law all attempts were punished as misdemeanors. Model penal codes, however, tend to allot punishments for attempts at some reduced level of the sentence designated for the completed crime.

The theory behind the law of attempt is to punish those who attempted but did not succeed in the crime they intended to commit. A person who tried to kill another but is unsuccessful should be held responsible, just as is the person who succeeds. The person who fails in his goal to murder another possessed the same mens rea (intent) to kill as did the person who succeeded in his task.

The Law of Attempt is intended to accomplish deterrence as well as retribution. Deterrence is very important to the criminal justice system. Courts want to make examples out of those who attempt crimes in hopes that it will deter others from doing the same. When people are aware that even if they fail in the commission of their crime they can still be prosecuted, on some level they are less likely to commit the crime in the first place. The problem with this theory, however, is that most people who are engulfed in the process of planning and carrying out a crime do not contemplate the possibility of not failure; they likely do not even think about the consequences of successfully completing their act.

By upholding the Law of Attempt, Judges are shifting the basis of punishment from one grounded in outcome to one focused on the attempt process and risk. This is very important because, as mentioned above, the steps taken during the commission of a crime can be as offensive and threatening as the crime itself. However, there is controversy about determining what the outcome would have been and if the punishment for attempt to commit that crime is justifiable. There is also the concern that the anticipated outcome might not have taken place if the defendants' actions had not been interrupted. Therefore there would be a punishment that did not fit the crime, which is unconstitutional. At some point in the commission of a crime a person has the choice to abandon or decide not to follow through with the criminal act. When a persons' commission of a crime is interrupted it is difficult to predict if that person was going to cease what he was doing by his own judgment.

There is also the difficulty of determining where preparation ends and attempt begins. Baron Parke stated for an act(s) to represent a criminal attempt rather than mere preparation "the accused must have taken the last step which he was able to take along the road of his criminal intent." (p. 564). When a would-be criminal falls short of this last step, for whatever reason whether by being prevented by the police or by deciding to repent, he still remains in the realm of non-criminal preparation. The line between preparation and attempt is, however, both vague and essentially unclear. No clear guidance is given to distinguish the line that separates attempt and preparation. There is also the possibility that the interrupted preparation would have proceeded into an attempt if the behavior had been allowed to continue. In PEOPLE v. RIZZO, 246 N.Y. 334, 158 N.E. 888, (1927), for example, the defendants were found not guilty of attempted robbery because they were arrested before they could find the person they intended to rob. However, the dissent could argue that had the not been apprehended when they were, the chances were, they would have found their intended victim and robbed him.

Without a notion of non-criminal preparation, a person might be charged with attempt before he had a chance to change his mind and abandon his criminal acts. An individual must be allowed the opportunity to change his mind; the fact remains that there is no distinct line that separates the act of attempt and preparation. "A defendant may be arrested before she has the chance to take the