CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 3, 2009

Garvey on Attempts and Treason

Garvey-Stephen Stephen P. Garvey  (Cornell Law School) has posted Are Attempts Like Treason? on SSRN. Here is the abstract:

If the state can legitimately criminalize only actions that cause or risk harm, and if it respects the fact that an actor who sets out to commit a crime can always change his mind until he takes the last step, we are apt to end up with a law of attempts in which an attempt is a crime only when the actor has taken the last step, or come very close to taking it. Our dominant theories of attempt, objectivism and subjectivism, do indeed end up with such a narrow law of attempts. In contrast to these theories, I suggest that an actor who chooses to form the intent to commit a crime, who chooses to resolve to commit that crime, and who chooses to take a step in furtherance of that intention is akin to a traitor. He has chosen to obey a self-made law antithetical to the law claiming his allegiance, and the state should in principle be permitted to punish him, as it should any traitor.

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So a person finds out his wife has cheated on him, decides in his flash of anger he's going to kill her, puts a gun in his car and starts driving toward her work is guilty of attempted murder?

There's intent and a couple concrete actions toward the furtherence of the crime.

If he comes to his senses halfway there, stops, goes home, puts away the gun and and decides to try to work it out (and get therapy for his anger issues) he's just as morally guilty of attempted murder as if he finished the drive, shot at her and missed?

That's ludicrous.

Posted by: Matthew Carberry | Dec 3, 2009 1:52:13 PM

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