Wresting Control from Luck: The Secular Case for Aborted Attempts

Abstract

The effort to rid criminal responsibility of factors beyond the agent’s control created an opportunity for a new balance in the law of attempt between aggravated penalties and full exoneration for voluntary renunciation. The present analysis claims that the opportunity has been missed both in Israel and in the United States because of an unwarranted concern for the moral tenor of renunciation. Analysis of the difference between (rare) successes and (frequent) failures in renunciation cases is offered in support of the proposition that the proper balance between ex post and ex ante considerations is only applied where courts (and sometimes legislators) empathize with the victims of specific crimes (e.g., markets, children, judges). In other cases (e.g., rape, murder), immediate victims are readily used as means to prevent uncertain future crime. The claim is also made that concern with the moral tenor of renunciation creates an anomaly in modern criminal law. While the decision to initiate a crime act (the "go act") is judged on ever narrower pictures of character and motive, the decision to abandon it before actual harm is inflicted (the "stop act") increasingly attracts interest in the inner processes behind it. I claim that the anomaly manifests the danger of blurring the line between reality (no actual harm) and fantasy (harm imagined and willed by the defendant) when the struggle against luck is not properly checked.