Criminal Attempts

The question Kadish and Schulhofer seek to answer is “when is impossibility a defense?” This comes up for so-called attempts, meaning failed attempts to commit a crime such as murder, smuggling, and so on. Mere attempts are often treated as crimes in their own right, though they are frequently punished less harshly than successful attempts are. Some attempts fail because what is being attempted is impossible. The question at hand is when the impossibility of the attempted action amounts to an excuse.

Kadish and Schulhofer’s official answer is that what they call factual impossibility is not an excuse but that legal impossibility is. That is, someone whose attempt at committing a crime fails because she is mistaken about the facts will not be excused. Lady Eldon, for instance, is guilty of attempted smuggling, according to Kadish and Schulhofer, even though it was impossible for her to break the law, given that she actually had English lace and not the French stuff that she thought she had. By contrast, someone whose attempt fails because he is mistaken about the law will be excused, according to Kadish and Schulhofer’s standard. If I go dancing falsely thinking that it is illegal, I am not guilty of a criminal attempt. It is legally impossible for me to break the law by going dancing since the law says nothing about dancing.

Having made the case for drawing a distinction between factual and legal impossibility, Kadish and Schulhofer turn around and present an objection to that very distinction: the case of Mr. Fact and Mr. Law. The fact that they both defend the distinction and raise objections against it can be confusing on, say, an exam.

Our discussion

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.

Adrián made a point about the objective conception of intent that was new to me: if you treated what people in fact do as being equivalent to what they intend to do, you will wind up punishing people for innocent mistakes. For instance, a surgeon whose patient dies will be guilty of murder. It’s what actually happened that determines what the surgeon meant to happen, according to the objective conception of intent, and the patient actually died, so the surgeon must have intended for the patient to die. That, of course, is ridiculous. Nice point Adrián!

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).

Jerry put the basic case for this distinction between mistakes of fact and mistakes of law quite well. The idea 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.

“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.

We also talked extensively about so-called pathetic attempts. These are acts where the factual impossibility is so extreme that it seems ridiculous to even call them attempts. For example, suppose I think I can kill you by pointing my fingers and saying “bang.” If I do that, does that count as attempting to kill you?

Samuel said that pathetic attempts seem closer to insanity. If so, we can handle them by using the standards we talked about last week. Antonio asked what the difference is between trying to kill someone with a voodoo doll and trying to kill someone with a defective bomb. The murder is impossible in either case; impossible does not come in degrees, after all. And someone (sorry, I can’t remember who) said that what counts as a pathetic attempt may vary from culture to culture. If you live in a place where people sincerely believe that voodoo dolls can kill someone, poking one might count as a serious attempt.

Key concepts

  1. How the case of Lady’s Eldon’s lace works: what did Lady Eldon do, what point in law does it illustrate, and so on.
  2. The case of Mr. Law and Mr. Fact.


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.