Central to Gideon Yaffe's powerful theory of the legitimate criminalization of unsuccessful attempts is his “transfer principle,” according to which, “if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” I argue that this principle, taken together with Yaffe's theory of the nature of attempts, threatens to lead to a normatively problematic conclusion in support of the legitimate criminalization of attempts that are merely a matter of thinking and do not involve action in the public space. And I argue that Yaffe's efforts to block this conclusion are themselves problematic. This leads to a proposed revision of the “transfer principle,” one that draws on plausible normative views about the nonlegitimacy of criminal sanctions in cases of attempts that are merely a matter of thinking and do not involve action in the public space.

This contribution reconstructs and assesses Yaffe's claims about what constitutes an attempt, what can count as evidence that an attempt has been made, whether abandonment is a genuine defense, and whether attempts should be punished less severely than completed crimes. I contrast Yaffe's account of being motivated by an intention and the completion of an attempt in terms of the truth of the completion counterfactual with an alternative picture of attempts as temporally extended decision trees that are complete insofar as the agent has progressed toward the final act in the tree. I suggest that this alternative scalar conception of attempt may provide a more plausible account of the defense of abandonment. I also raise questions about whether Yaffe has provided an adequate justification of his mix of luck skepticism about censure and luck realism about punishment.

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.

Yaffe's handling of two general questions is assessed in this review. The first question is why mere attempts (as opposed to successful wrongdoing) should be made punishable in a well-conceived criminal code. The second question is how attempt liability should be conceived in such a code. As to the first question, Yaffe's nonsubstantive mode of answering it (in terms of his “transfer principle”) is contrasted to answers based on some more substantive desert-bases; Yaffe's own more substantive kind of answer (in terms of a desert-base of “faulty modes of reason recognition and response”) is examined in light of the implication that the traditional requirements of trying and intending are mere proxies for faulty reason recognition and response as the basis for blaming and punishing attempts. As to the second question, Yaffe's analysis of trying in terms of a “guiding commitment view” is examined in some detail. Canvassed here are the subquestions of: (1) whether appropriate assessibility by certain norms of rationality can give the nature of intending and thus of trying; (2) whether the externally de dicto intent requirements of criminal law statutes can easily be interpreted and applied by standard, extensional methods; (3) whether the distinctions between various kinds of elements within the content of intentions, can be justified ontologically or only practically; (4) whether actors necessarily intend results of their actions that are “very close” to other results that clearly are intended, and if not, whether such actors are nonetheless just as blameworthy for those results as if they did intend them; and (5) whether intention with respect to circumstance-elements differ (in either their psychology or in their moral effect) from beliefs with respect to such circumstance-elements.

This essay replies to the thoughtful commentaries, by Michael Bratman, David Brink, Larry Alexander, and Michael Moore, on my book Attempts.