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!)