Kadish and Schulhofer 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 Schulhofer’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 false: there is a difference between what you mean to do and what you actually do. The law punishes intent all the time. And it is 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 Schulhofer’s principle.
the innocuous character of the action actually done (innocuous in the sense that it could not constitute a crime under the actual circumstances) will not save her from an attempt conviction if she believed that the circumstances were otherwise, and, had her belief been correct, what she set out to do would constitute a crime. (Kadish and Schulhofer 1989, 672)
As they understand it, this principle 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).
However, as Leo pointed out, it is not at all obvious from the wording of the principle that it actually has this implication. I think what they mean was “had her belief about the facts about what she was doing been correct, what she set out to do would constitute a crime.” In this case, her belief about the facts about what she was doing was a belief about where the lace in her luggage was made.
In any event, the basic case for this distinction between mistakes of fact and mistakes of law 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. Kadish and Schulhofer quote Glanville Williams as making the point.
as Professor Williams has pointed out, “if the legislature has not seen fit to prohibit the consummated act, a mere approach to consummation should a fortori be guiltless. Any other view would offend against the principle of legality; in effect the law has left the situation outside the ambit of the law.” (Kadish and Schulhofer 1989, 673)
However, the case of Mr. Law and Mr. Fact throws the distinction into question (see Kadish and Schulhofer 1989, 674). 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.
Kadish, Sanford H., and Stephen J. Schulhofer. 1989. “The Case of Lady Eldon’s French Lace.” In Criminal Law and Its Processes, 699–75. Boston: Little Brown and Company.