Should we punish unsuccessful attempted crimes as well as the successful ones? Most of us say yes.
Our readings for these sessions covered some prominent problems surrounding our treatment of unsuccessful attempts. The handout, taken from an article by Larry Alexander, gives a brief summary of the standard treatment of unsuccessful attempts in the law.
Kadish and Schulhofer go over the reasons why it seems legitimate to punish unsuccessful attempts. They also touch on some difficulties.
In particular, they present the argument for drawing a distinction between mistakes of fact and mistakes of law. Then they criticize this distinction with the example of Mr. Fact and Mr. Law.
Alexander, the author of the material in the handout, gives a great example in favor of drawing the distinction between mistakes of fact and mistakes of law. This is the example of the people who think that dancing is illegal. They intend to break the law, but it sounds weird to say that they’re guilty of anything.
Lewis tackles a different issue: whether it is just to punish unsuccessful attempts less often and less harshly than successful ones.
Lewis’s argument relies on treating punishment as a kind of lottery. People are subjected to risks of punishment that mirror the risks they imposed on others.
But if you’re like Fowler in thinking that all crimes are attempts, you might find this unsatisfactory. In fact, most people will find it at least unsettling and Lewis himself suspects that it’s unjust. But it’s devilishly difficult to say why.