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YAFFE ON ATTEMPTS
Published online by Cambridge University Press: 25 October 2013
Abstract
Gideon Yaffe's Attempts is a masterfully executed philosophical investigation of what it means to attempt something. Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on and be used to criticize the law's understanding of those crimes. I focus exclusively on the relevance of Yaffe's philosophical analysis of attempts to the criminal law of attempts. I assume that Yaffe's account of what it is to attempt something is basically correct and ask whether the criminal law uses “attempt” in the way Yaffe uses it, and whether it should use Yaffe's conception of an attempt. I conclude that a lot of criminal-law doctrine, including, very importantly, the influential Model Penal Code's treatment of attempts, is inconsistent with Yaffe's conception of attempts. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law's treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe's chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission is insufficient. I find Yaffe's argument to this effect opaque and therefore unconvincing.
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References
1. Yaffe, Gideon, Attempts: In the Philosophy of Action and the Criminal Law (Oxford University Press, 2010)CrossRefGoogle Scholar. All references to pages in the book appear in the text in parentheses.
2. “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he . . . when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part.” Model Penal Code §5.01(1)(b) (emphasis added).
3. See id.
4. “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.” Model Penal Code §5.01(1)(a) (emphasis added). The Commentary to the Code makes it clear that the emphasized language is meant to be inculpatory only. See Model Penal Code and Commentaries, Part I, General Provisions §§3.01 to 5.07 (American Law Institute 1985), 301–302.
5. See id.
6. Id.
7. “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he . . . purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Model Penal Code §5.01(1)(c).
8. See supra note 4.
9. See Larry Alexander & Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (2009), at 69–85.
10. Id. at 198–216; See also Alexander, Larry & Ferzan, Kimberly Kessler, Danger: The Ethics of Preemptive Action, 9 Ohio St. J. Crim. L. 637, 642–658 (2012)Google Scholar; Alexander, Larry & Ferzan, Kimberly Kessler, Risk and Inchoate Crimes: Retribution or Prevention?, in Seeking Security: Pre-Empting the Commission of Criminal Harms (Sullivan, G.R. & Dennis, I. eds., 2012), 103, 105–119Google Scholar.
11. See Alexander & Ferzan, supra note 9, at 25–65.
14. See Model Penal Code and Commentaries, supra note 4, at 315–320.
15. Id. at 318.
16. The source of the hypothetical is S. Kadish & M. Paulsen, Criminal Law and Its Processes (3d ed. 1975), at 367.
17. People v. Jaffe, 185 N.Y. 497 (1906); People v. Dlugash, 41 N.Y. 2d 725 (1977).
18. One might disagree with this conclusion with respect to Dlugash for the following reason. If Dlugash believed Geller was most likely dead, then he could not have had the intention to kill him. An assassin's taking a shot at his intended victim—whom he wants to kill—a shot that the assassin believes has only a 10 percent chance of killing the victim, is an intentional killing if the shot does kill the victim; however, that is different from the assassin's taking a shot that he believes will be certain to kill a victim if the victim is alive when the assassin believes the victim is only 10 percent likely to be alive. The assassin's estimates of the probabilities of killing are identical in both cases, but only the first is an intentional killing if it succeeds. Therefore, if the shots fail to kill in both cases, only in the first has the assassin attempted murder.
I believe this argument is in error. Because the odds of killing (from the assassin's viewpoint) are the same in both cases, and the assassin's reasons for firing the shot are the same in both cases, both cases should come out the same way—intentional homicide if the victim is killed; attempted homicide if he is not, whether because the bullet misses or because he is already dead.
If Dlugash acted not with the purpose of killing Geller but only with the belief that were Geller alive, the shots fired would kill him, then Dlugash is no different from one who fires a shot that he believes might kill someone but who lacks the intent to kill. In the absence of a sufficient justification for imposing the risk, he is reckless in firing whether or not the shot kills, and if it does not, whether because it misses a live victim or penetrates a victim who was already dead.
19. Lady Eldon is the creation of Sanford Kadish. See Kadish & Paulsen, supra note 16, at 362–366.
20. See Alexander, Larry, Facts, Law, Exculpation, and Inculpation: Comments on Simons, 3 Crim. L. & Phil. 241, 243–245 (2009)Google Scholar.
21. See Alexander, Larry, What's Inside and Outside the Law?, 31 Law & Phil. 213, 219–224 (2012)CrossRefGoogle Scholar.
22. See Model Penal Code §5.05(2).
23. See Model Penal Code and Commentaries, supra note 4, at 490–491.