Kadish and Shulhofer make the case for treating at least some failed attempts as crimes. More precisely, they argued that it can be legitimate to have laws punishing people for merely attempting to break a law, even if they do not succeed in doing so.
They propose that failures resulting from mistakes of fact are liable to criminal penalty but failures due to mistakes about the law are not.
Then they turn around and present an objection to that very distinction: the case of Mr. Fact and Mr. Law.
Warning: the fact that they both defend the distinction and raise objections against it can be confusing on, say, an exam.
We went through Kadish and Shulhofer’s defense of punishing failed attempts pretty quickly. The three arguments they considered against punishing merely attempted crimes were not very compelling. The objective conception of intent is silly: as our friend Oliver Wendell Holmes noted, “Even a dog distinguishes between being stumbled over and being kicked.”The Common Law (1909), p. 3. The law punishes intent all the time. And it’s at least possible to come up with excellent evidence of someone’s intent even with a failed attempt.
With the decks cleared for punishing mere, failed attempts, we moved on to Kadish and Shulhofer’s principle. This draws a distinction between attempted crimes that fail due to mistakes of fact (I thought the gun was loaded) and mistakes of law (I thought dancing was illegal on Saturdays).
The basic case for this distinction is that in the case of mistakes of law there is no law that they might have broken. Assuming that we can only punish people for violations of the law, there’s no basis for punishment.
However, the case of Mr. Law and Mr. Fact throws the distinction into question. Mr. Law and Mr. Fact each wrongly believe they are breaking the law by going hunting on October 15. Mr. Law is wrong because he believes that the hunting season doesn’t start until the first of November when it actually began on the first of October. He is mistaken about the law. Mr. Fact is wrong because he looked at the wrong page on the calendar and believes it is September; he knows that hunting season begins on October 1 but is mistaken about the facts, such as the date. Drawing a distinction between them, such that Mr. Fact can be liable to criminal sanction while Mr. Law cannot, seems arbitrary.
It’s an interesting dispute and I myself don’t know exactly what I think.
Emma sends us to the New York Times where the Ethicist answers questions about our favorite subject: unsuccessful attempts! Thanks Emma!