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Wednesday, April 18, 2018

Are Criminal Attempts Bumpy?

The law draws hard-to-justify lines around vague words. Those lines can lead to dramatically different consequences. In Smoothing Vague Laws, I argued that problems caused by legal vagueness can be eased in many instances by "smoothing" the law. If, for example, you have merely "prepared" to commit a crime, you have no criminal liability. When you cross the line from preparation to "attempt," however, you can have substantial liability--at least the mandatory minimum sentence for the attempt. If the attempt has no mandatory minimum, it's possible that a judge will sentence in a smooth fashion. But I suspect that judges don't think about sentencing in a smooth way. Though there should presumably be cases where a person gets a modest sentence for attempted murder or attempted rape because the crime falls right around the border between preparation and attempt, I suspect such sentences are rare because judges focus on the bumpy names of offenses rather than their often smooth underlying facts.

Doron Teichman takes issue with this discussion in his interesting recent article. Teichman argues that criminal law already uses inchoate crimes to adjust punishment to confidence in guilt in a relatively smooth fashion. For example (p. 776-777):

By adding or removing objective elements to a crime and by relaxing or enhancing the mental state associated with the crime, the state can make the prosecution’s case harder or easier to prove. . . . Furthermore, the punishment attached to these evidentiary crimes can be set lower than the punishment attached to the primary crime they aim to deal with to account for the added evidentiary uncertainty associated with them. The emerging picture is of a de facto evidentiary graded penal regime. Defendants whose guilt can be proven beyond a reasonable doubt are subject to the full punishment attached to the original crime, while defendants whose guilt is more difficult to prove are convicted of the lesser crime and are subject to a milder penalty.

There is much more to Teichman's argument, but pertinent to this post, he concludes that "contrary to Kolber’s assertion that the law of criminal attempts is bumpy because at one moment a defendant 'has no criminal liability whatsoever, and just a moment later, he has sufficient criminal liability to receive several years’ incarceration,' viewed in its entirety, attempt law turns out to be rather smooth."

I have four replies. First, some disagreement on these matters might be attributable to differences in expectations about smoothness and bumpiness and how one quantifies them. For example, I too have noted evidentiary smoothing possibilities, especially around plea bargaining (p.678-680; 874-75), while Teichman, for his part, acknowledges that attempt law can be somewhat bumpy in his n.204. So two observers looking at similar data may still draw different overall conclusions. Second, your view might depend on whether you focus on individuals versus the system as a whole. The combination of preparatory crimes and attempt law may create some evidentiary smoothing systemwide, as Teichman notes. But in any particular case, dramatically different results follow if jurors have reasonable doubts versus an iota passed that standard. Such situations may be relatively uncommon on a systemwide basis but can still be very bumpy for particular individuals (and are perhaps not so unusual in cases that actually go to trial). Third, many scholars distinguish two aspects of attempt. One is the amount of actus reus which may gradually increase as a crime progresses. The other is seriousness of intent (which may be evidenced by a defendant's statements) that doesn't necessarily change or change as much as the attempt progresses, especially when intent is very strong from the get-go. Does punishment vary with confidence in the mental state or in the expectation the acts would continue to completion? Is punishment somehow keyed to both even though they change at different rates? 

Finally, and most importantly, I have emphasized that when speaking carefully, we should identify smooth and bumpy relationships between a particular input and a particular output. If Teichman is right about matters of evidence, his conclusions about the smoothness of attempt are still too broad. Even if amount of punishment is smoothly related to confidence in guilt, there are other relationships that may or may not be smooth. Many seem to think that culpability gradually increases as one progresses along a criminal path (and perhaps harm caused as well if an attempt grows increasingly threatening over time). If they're right, punishment isn't simply about discounting expected future crimes based on our confidence they will be committed. If I'm 75% confident a defendant arrested for attempt was going to commit a crime that warrants 100 units of punishment, he wouldn't necessarily warrant 75 units now. After all, the person who does complete the offense likely engaged in additional bad acts with additional culpability that the defendant never committed, and that matters to some people. So whether or not the evidentiary relationship Teichman considers is smooth or bumpy, there are other pertinent relationships as well. (Special thanks to Doron Teichman for taking up the smooth/bumpy issue in his article which I highly recommend!)

Posted by Adam Kolber on April 18, 2018 at 02:32 PM | Permalink


All sounds good! And I like the way you put it here which I understand roughly as follows: If we're 75% sure you committed crime X, we cannot convict you of crime X. However, we can create a new crime Y which, in essence, punishes people for being in a state where they are 75% likely to commit (or to have already committed) crime X. So we should, perhaps, not consider BARD such a magical standard given that we have ways to manipulate the confidence levels that we really care about in ways that, in substance, permit us to deviate from BARD, even though the law doesn't describe it that way.

I'm grateful for your interesting and thoughtful reply! I'll plan to flag it in a future post or in my final guest post that you replied here.

Posted by: Adam Kolber | Apr 19, 2018 4:31:26 PM

Thank you so much for this discussion, Adam. As you noted, the difference in opinion between us might not be as dramatic as it looks at first, and I certainly agree with your point about individual cases (to a large degree my paper is a macro piece). Regarding your third point, while I don’t cite Israeli case law in my paper (after all, this paper was submitted at law reviews and I wanted to get it published), the analysis stems from the Israeli attitude to attempt that (de facto) collapses actus reus and mens rea on this front to a single variable. The courts will convict someone who did very little, if there is a clear ex post confession of intent. The courts will acquit someone who did a lot of bad stuff, if it’s unclear what his ultimate precise target was. The doctrine explicitly states that actus reus and mens rea are interchangeable when figuring out whether the defendant actually attempted to break the law. In a world like this, much of the complexities of the two-dimensional analysis you raise is not present.

As for you final point, I am the first to concede that my theory of punishment is derivative to a primary theory – it does not stand on its own. We must first decide what we’re doing – some type of retribution, deterrence, etc. Now, all I am arguing is that if you are “75% confident a defendant arrested for attempt was going to commit a crime that warrants 100 units of punishment,” and consequently based on your theory of punishment you think he deserves some punishment (could be more or less than 75), then my theory kicks in. Currently, under most available interpretations of the beyond reasonable doubt standard, this defendant gets nothing if criminal attempt is the only doctrine in play.

Posted by: Doron Teichman | Apr 19, 2018 4:20:22 PM

It seems to me WHO makes the ride bumpy or smooth is significant. For example, Teichman's argument that prosecutors can manipulate charging to make the ride more smooth is exactly one of the main critiques of prosecutor discretion. A prosecutor shouldn't be looking at a defendant and thinking, "hey, what can I tag this guy with?" Guilt in relationship to a specific crime is not supposed to be so malleable, it is supposed to be bumpy. The idea that there is a sliding scale of guilt is offensive to liberty. Innocent or guilty, I don't know how one smooths that.

Posted by: James | Apr 18, 2018 9:10:28 PM

Thanks, Orin! I believe the rule-standard distinction is importantly different than the smooth-bumpy distinction. See pp. 666-668 here for my attempt to answer your question: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1992034 .

You may be right that they have a similar feel though because any bit of law *can also* be characterized along the rule-standard dimension. But the smooth-bumpy distinction is about the relationship between a particular legal input and a particular legal output rather than, say, the amount of discretion a law gives or its ease of application.

For example, pure contributory negligence features a bumpy relationship between a plaintiff's level of negligence and the defendant's tort liability. Pure comparative negligence, by contrast, features a smoother relationship between the two. Now suppose we could read a plaintiff's level of negligence off of a comment bubble above his head. Both contributory and comparative negligence would be equally rule-like (because we'd just look at the number in the comment bubble), but we'd still have to decide whether we want the relationship to be smooth or bumpy. Of course, in the real world, we don't have these comment bubbles. So comparative negligence may seem more standard-like because it requires the exercise of more judgment. But conceptually, the rule-standard distinction and the smooth-bumpy distinction are different.

Posted by: Adam Kolber | Apr 18, 2018 5:12:10 PM

Interesting . You may be shocked then , by the idea , that the same punishment would be imposed , on attempt , and actual commission of offense. But , in the democratic republic of Congo for example , if just due to circumstances ,not under the control of perpetrator , the offense , hasn't been effectuated , then , perpetrator is punished at the same level , as if accomplished indeed . Here Article 4 to the Penal code ( my improvised translation from French ) :

Article 4 :
Il y a tentative punissable lorsque la résolution de commettre l'infraction a été manifestée par des actes extérieurs, qui forment un commencement d'exécution de cette infraction et qui n'ont été suspendus ou qui n'ont manqué leur effet que par des circonstances indépendantes de la volonté de l'auteur.
La tentative est punie de la même peine que l'infraction consommée.

Here I translate briefly :

An attempt can carry a sentence , when external acts have been carried out for starting to execute the offence ( showing then determination for commission) but , aborted only due to circumstances out of control of the perpetrator . As such , attempt and commission bear the same punishment .


Posted by: El roam | Apr 18, 2018 4:58:15 PM

Thanks for posting, Adam. This has the feel of the rules vs. standards debate (with "bumpy" law being akin to rules and "smooth" law being akin to standards), but with the issue the amount of liability instead of whether there is any legal liability at all.

Posted by: Orin Kerr | Apr 18, 2018 4:28:59 PM

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