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Published online by Cambridge University Press: 07 August 2013
This contribution reconstructs and assesses Yaffe's claims about what constitutes an attempt, what can count as evidence that an attempt has been made, whether abandonment is a genuine defense, and whether attempts should be punished less severely than completed crimes. I contrast Yaffe's account of being motivated by an intention and the completion of an attempt in terms of the truth of the completion counterfactual with an alternative picture of attempts as temporally extended decision trees that are complete insofar as the agent has progressed toward the final act in the tree. I suggest that this alternative scalar conception of attempt may provide a more plausible account of the defense of abandonment. I also raise questions about whether Yaffe has provided an adequate justification of his mix of luck skepticism about censure and luck realism about punishment.
1. Gideon Yaffe, Attempts (2010). Parenthetical references in the text are to pages in this book.
2. Execution failure, as Yaffe explains, involves the failure to execute something one is competent to do, as in Austin's famous illustration of failing to execute a short golf putt that one is able to make (94). See Austin, J.L., Ifs and Cans, in Philosophical Papers 218 (1979)CrossRefGoogle Scholar.
3. See, e.g., Joshua Dressler, Understanding Criminal Law (5th ed. 2009), at 380.
4. Model Penal Code §5.01(1)(c).
5. See Michael Bratman's contribution to this symposium.
6. There is disagreement within the common law and between some strands in the common law and the Model Penal Code about whether to measure completeness by the distance traveled from the first act or the distance remaining to the last act. Cf. Dressler, supra note 3, at 397–402; and Model Penal Code, §5.01 cmt. at 329. However, it is not clear why these two different perspectives cannot converge on a result.
7. If the extended and scalar dimensions of attempts can be squared with Yaffe's version of the guiding-commitment view, then the discussion here could be read as a recommendation to acknowledge these dimensions more clearly and explore their significance more fully.
8. See Dressler, supra note 3, at 411–412; and Model Penal Code §5.02.
9. Joshua Dressler, Cases and Materials on Criminal Law (4th ed. 2003), at 800.
10. See James Fitzjames Stephen, A Digest of Criminal Law (1883), §49.
11. The modern debate started with classic papers by Williams and Nagel. See Bernard Williams, Moral Luck, in Moral Luck (1981); and Thomas Nagel, Moral Luck, in Mortal Questions (1979). See also Feinberg, Joel, Equal Punishment for Failed Attempts: Some Bad But Instructive Arguments against It, 37 Arizona L. Rev. 119–121 (1995)Google Scholar; Michael Moore, Placing Blame (1997), ch. 5; and Larry Alexander, Kimberly Ferzan, & Stephen Morse, Crime and Culpability (2009), ch. 5. For a useful overview of the debate, see Dana Nelkin, Moral Luck, in Stanford Encyclopedia of Philosophy (2013), available at http://plato.stanford.edu/entries/moral-luck.
12. Cf. Dressler, Understanding, supra note 3, at 381 and 418–419; and Model Penal Code §5.05(1). The Model Penal Code makes an exception and provides differential sanction for first-degree felonies (murder, kidnapping, rape, and robbery), insisting that an attempt to commit a first-degree felony constitutes a second-degree felony.
13. See, e.g., Moore, supra note 11; and Alexander, Ferzan, & Morse, supra note 11. Elsewhere, I defend a view I call predominant retributivism, which claims that culpable wrongdoing is the desert basis of punishment—determining whom we should punish, why we should punish them, and how much we should punish them—but allows that forward-looking consequential considerations (such as rehabilitation and deterrence) can play a role in answering the question of how we should punish. See Brink, David O., Immaturity, Normative Competence, and Juvenile Transfer, 82 Tex. L. Rev. 1555 (2004)Google Scholar; and Brink, David O., Retributivism and Legal Moralism, 25 Ratio Juris 496 (2012)CrossRefGoogle Scholar.
