NCJ Number
58037
Journal
American Bar Foundation Research Journal Volume: 1977 Issue: 4 Dated: (FALL) Pages: 845-879
Date Published
1977
Length
35 pages
Annotation
THE THESIS THAT INCHOATE CRIME IS MORE THAN MERELY ANTICIPATORY GUILT AND MENS REA A COMPONENT OF THE DANGER OF CRIMINAL HARM THAT DETERMINES NEED FOR INTERVENTION IS DEVELOPED.
Abstract
INTENT TO COMMIT A CRIME HAS LONG BEEN CONSIDERED AN ELEMENT OF THE DETERMINATION OF GUILT FOR A COMPLETED CRIME. BUT THE PART OF MOTIVATION IN ASSESSING THE GUILT IN A CRIMINAL ATTEMPT IS QUESTIONABLE. MURDER, WITH INTENT TO CAUSE DEATH OR TO COMMIT AN ACT WHICH COULD LOGICALLY CAUSE DEATH, IS CONSIDERED IN DETERMINATIONS OF CASES IN WHICH ACTUAL DEATH OCCURS, BUT ONLY INTENT TO CAUSE DEATH AND NOT COMMISSION OF A POTENTIALLY FATAL ACT, IS CONSIDERED IN CASES OF ATTEMPTED MURDER. ATTEMPT, BY DEFINITION, IS THE FAILURE TO CARRY THROUGH A CRIMINAL ACT AND THE FAILURE MAY BE DUE TO A VARIETY OF CAUSES RANGING FROM MISCALCULATION ON THE PART OF THE PERPETRATOR OR PREVENTION BY SOME EXTERNAL SOURCE TO INABILITY OR UNWILLINGNESS OF THE ACTOR TO GO THROUGH WITH THE CRIME. IN BETWEEN ARE AREAS SUCH AS THE PERSONS' POSSIBLY NOT INTENDING TO CAUSE FATAL INJURY, INABILITY OF THE PERSONS TO CONTROL HIS IMPULSES, ETC. ATTEMPT DIFFERS FROM SUBSTANTIVE CRIME, THEN, IN THAT IT COMBINES MENS REA OF INTENT WITH AN UNDEFINED CRIMINAL CONDUCT. PUNISHMENT IS JUSTIFIED BY THE FACT THAT THE ACTOR'S HARMFUL INTENT IS NOT MERELY THE BASIS FOR ASCRIBING TO HIM CULPABILITY BUT IS ITSELF THE SOURCE OF POTENTIAL HARM. ATTEMPT TO COMMIT A CRIME SHOULD BE DEFINED AS ENGAGING IN CONDUCT WITH THE SPECIFIC INTENTION TO PRODUCE FORBIDDEN CONSEQUENCES WHILE AWARE OF THE POSSIBILITY THAT THE CIRCUMSTANCES WHICH RENDER SUCH CONSEQUENCES CRIMINAL MAY EXIST. A PERSON WHO SO ACTS PURSUES HIS OWN INTERESTS AT THE EXPENSE OF OTHERS AND RISKS THEIR INJURY TO A DEGREE THAT JUSTIFIES INTERVENTION WITH LEGAL FORCE. ANYTHING LESS, 'RECKLESSNESS' FOR INSTANCE, DOES NOT WARRANT THE USE OF LEGAL FORCE AT THE INCHOATE STAGE. REFERENCES ARE PROVIDED. (KCP)