Preparation vs. attempt

Although every crime ever attempted obviously had a preparation phase at some point, the concept of preparation is viewed in legally distinct terms vs. The actual attempt to commit the crime. In other words, a criminal can prepare to commit a crime but not actually attempt to commit the crime. Attempts are in many instances criminalized: for example, someone who attempts but fails to successfully to complete the crime as in a case of attempted murder. Preparing to commit the crime by simply contemplating the act, however, is not necessarily a crime. Furthermore, there are additional legal distinctions drawn between an attempted vs. A successful crime. Of course, “a successful attempt to commit a crime will not support two convictions and penalties, one for the attempt and the other for the completed offense. This is for the obvious reason that whatever is deemed the appropriate penalty for the total misconduct can be imposed upon conviction of the offense itself” (Perkins 1954: 320). In other words, someone who attempts to commit a burglary will not be convicted both of attempted burglary and actual burglary. But attempted burglary is a crime even while merely contemplating a burglary in preparation to attempt the crime is not.

The fact that the concepts of preparation and attempt are not synonymous can be confusing given the extent to which this requires a determination of the individual perpetrator’s state of mind. “As one court explained the use of ‘attempt’ in the assault cases: ‘if one in anger draw back his fist to strike, being within striking distance, it is an offer; but if he draw back and make a lick and miss, it is an attempt'” (Perkins 1954: 339). The individual might be potentially charged with another crime, such as harassment because of the threat but the waved fist would not necessarily be interpreted as an attempt. In general, three components of the problem of criminal attempt have defined the issue in legal history: “(1) Should impossibility be deemed to exclude attempt and, if so, what should be considered impossibility? (2) How should the line of demarcation between attempt and preparation be drawn? (3) What significance should be attributed to withdrawal from attempt?” (Kichyun 1957: 1174).

The notion of impossibility refers to the fact that a crime must be possible for it to be attempted. The crime must be possible in the legal sense if not the actual sense (someone who shoots a gun he believes erroneously to be loaded can still be convicted of the crime of attempted murder) (Perkins 1954:333). To determine whether the defendant viewed the crime as possible, verbal indicators can be taken into consideration but these must be reasonable relative to the gesture. Proximity may be used to determine intent as well as the quality of speech. Thus “no assault was committed by the one who raised his whip within striking distance and said: ‘Were you not an old man, I would knock you down.’ He was neither attempting to commit a battery nor placing the other in apprehension of receiving a battery” (Perkins 1954: 346). If someone was far away and shouted at someone ‘I am going to get you,’ while waving his fist, the lack of proximity would mean a conviction for attempted assault would be challenging to obtain. “[But] in the case of a conditional threat…If one within striking distance threatens to strike unless something is done or omitted, and the other does as commanded in order to avoid being struck, there has been apprehension. It was the apprehension of being struck that induced compliance” (Perkins 1954: 346).

As well as a feasible threat, to prove there was an attempt to commit a crime requires defining the attempt as distinct from mere preparation. It is also noteworthy that “a distinction is made between measures taken by way of preparation for the commission of a crime and steps taken in the direction of its actual perpetration” (Perkins 1954: 325). But the actual preparation for the crime is not synonymous with the attempt. “So far as the common law is concerned there is no criminal attempt unless what was done went beyond the stage of preparation” and the “act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation” (Perkins 1954: 325). Of course, this can be difficult to define: for example, in the case of an attempted murder, making inquiries about the whereabouts of the intended victim might merely be classified as preparation while actually drawing the gun would be classified as an attempt. “The problem is to determine at what point his acts went beyond preparation and were in the nature of perpetration. The actual firing of the shot was not essential to the attempt” (Perkins 1954: 326).

The concept of attempt as distinct from preparation is designed to address the need to punish a meaningful attempt at a crime while not punishing mere fantasizing about the crime. However, the argument remains that drawing such a fine line between these two is reliant upon a determination of a state of mind to such of degree that the line drawn is meaningless. But it should be noted that the notion of the distinction between attempt and preparation does not mean that someone who merely prepares for the crime but does not take a single step to act to commit the crime cannot be convicted. For example, the crime of stockpiling weapons may be penalized as a separate crime even though it is sometimes a component of preparing to commit the attempted crime of murder. Admittedly, this is penalizing the defendant for a different, actual crime vs. The one he decided to commit but this is one possible solution to the problem of determining the mental state of the defendant — to focus on actions rather than upon intentions. Finally, there is the question of withdrawal: when the preparation is aborted, where to draw the line between an aborted preparation and a legally culpable attempt? “A voluntary withdrawal may be regarded as a ground for according immunity to the actor or as a ground for reducing his punishment or as not affecting his responsibility in any way” (Kichyun 1957: 1197).

Solutions to the problem of distinguishing between preparation and attempt have proven elusive and perhaps the best ‘solution’ of all is merely focusing on the completed crimes that have been committed (such as illegal use of a weapon, acting recklessly, invasion of privacy) that are likely to be deployed over the course of either an attempt or preparation to commit a crime. Regardless, the definition of both legal terms is likely to remain subjective and context-dependent, as well as reliant upon the challenge of defining the mental state of the defendant.

References

Kichyun, P. (1957). Contemporary problems of criminal attempts. NYU Law Review, 1170-

Perkins, R. (1954). Criminal attempt and related problems. UCLA Law Review, 319 -355.