CrimProf Blog

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

Friday, November 1, 2013

Mungan on Abandoned Criminal Attempts

Mungan muratMurat C. Mungan (Florida State University - College of Law) has posted Abandoned Criminal Attempts: An Economic Analysis on SSRN. Here is the abstract:

An attempt is 'abandoned' if the criminal, despite having a chance to continue with his criminal plan, forgoes the opportunity to do so. A regime that makes abandonment a defense to criminal attempts provides an incentive to the offender to withdraw from his criminal conduct prior to completing the previously intended offense. However, the same regime may induce offenders to initiate criminal plans more often by reducing the expected costs associated with such plans. The former effect is called the marginal deterrence effect and the latter is called the ex-ante deterrence effect of the abandonment defense. This Article formalizes a trade-off between marginal and ex-ante deterrence by using standard economic analysis. The analysis suggests, contrary to the principles encapsulated by existing legal regimes, that all abandoned attempts, voluntary and involuntary alike, ought to potentially be punished less severely than completed attempts. Furthermore, an abandonment need not be treated as either a full excuse or no defense at all; optimal punishment schemes require abandonments to be treated as mitigating factors in sentencing.

The Article then identifies two important factors that ought to be taken into consideration while determining the magnitude of mitigation: the foreseeability of the events that led to the abandonment and the information regarding the offender’s dangerousness that is revealed through the abandonment. Finally, existing laws on abandonment are briefly reviewed. This review reveals that there is significant variation among states, and that there are cases where courts (i) excuse abandoning defendants even when the law does not provide an abandonment defense, and (ii) punish abandoning defendants even where a strict reading of the law would require the defendant to be excused. I conclude by suggesting that deviations from strict readings of the law can be minimized by moving more closely towards the optimal punishment schemes identified in this Article.

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