Preventive Offenses I: Attempt

Abstract This chapter is one of the two chapters that address the topic of preventive offenses, or offenses that criminalize conduct that may be harmless on its own but has a certain relationship to harm, which is the basis for its criminalization. This chapter focuses on the crime of incomplete attempt. This chapter is more revisionist than interpretive, as it contributes to a large existing body of theoretical work on attempt and argues against the conventional understanding of incomplete attempt as an offense the wrongfulness of which consists of wrongfulness of trying to commit a wrongful act. This chapter argues that we should instead conceptualize the offense of incomplete attempt as something akin to a regulatory offense, as the purpose of laws criminalizing incomplete attempt is to reduce the amount of risk of harm that exists in society. Incomplete attempt is a disobedience offense, then, because the wrongfulness of committing an incomplete attempt does not consist in trying to engage in a wrongful act (such as harming others) but interfering with the government’s program of managing risks.