Wednesday, October 7, 2009
Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the ‘‘moral character’’ or ‘‘intentional structure’’ of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the ‘‘continuity thesis,’’ according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.
The piece does a nice job responding to some of the defenses of the traditional approach. It also notes that the purpose requirement is more easily defended in the case of incomplete attempts, where it serves to screen out truly innocent conduct.