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28 Law and Philosophy 109 (2009)


When the legislature defines a crime—when it specifies a punishment for a person shown beyond a reasonable doubt to have acted in a certain way in certain circumstances and with certain results—it succeeds in defining a second crime as well, namely the crime of attempting to commit the crime defined. The legislature could choose specifically not to proscribe the attempt to commit a crime defined, but in the absence of an explicit statement to that effect, by defining the crime the legislature grants the state the power to punish also for the attempt. Why do we have this practice? What problem are we solving by having a system in which it is automatically a crime to attempt almost every crime explicitly defined? It is natural to answer that we are solving a problem of inequality: since there is no difference in desert between the person who completes the crime and the person who tries but fails, and since there is often no other good reason to treat them differently, there ought not to be a difference in treatment by the state. A system that does not punish attempts to commit crimes treats equally deserving citizens differently and for no good reason.

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