Attempt to Commit a Crime & Legal Defenses

Sometimes a person plans to do something illegal, but they do not complete the crime. They may have failed to execute the criminal act, or they may have been arrested or otherwise prevented from completing the crime. Either way, they may face a charge of “attempt.” This charge may raise complex factual and legal questions. Someone facing an attempt charge should not try to talk their way out of the situation on their own. Anything that they say to detectives or prosecutors could inadvertently harm a potential defense. Instead, they should exercise their right to remain silent until they get an attorney.

What Is Attempt?

Attempt is usually charged when someone plans to commit a crime and takes a step in that direction, but they don't complete the crime.

Elements of Attempt

To get a conviction for attempt, a prosecutor usually must show that the defendant intended to commit the underlying crime. However, a person cannot be punished just for thinking about committing a crime or wanting to commit a crime. The prosecutor also must prove that the defendant took a certain step toward committing the crime. For example, California defines attempt as a specific intent to commit the crime, in addition to a direct but ineffectual act done toward its commission. Illinois defines attempt as having the intent to commit a specific crime and doing any act that constitutes a substantial step toward committing the crime.

Examples of Attempt

Phil follows a tourist down the sidewalk, eyeing the wallet in his back pocket. As Phil reaches toward the back pocket, another bystander grabs his arm and prevents him from taking the wallet. Phil likely could be charged with attempted larceny.

Pam finds out that her husband has cheated on her. She mixes poison into his drink. However, Pam miscalculates the dose and puts too little poison into the drink to kill a person of her husband’s size. Pam likely could be charged with attempted murder.

Offenses Related to Attempt

Attempt is not the only “inchoate” (incomplete) crime. Here are some other examples of these crimes:

• Conspiracy: two or more people agreed to commit a crime, and at least one of them did something to put their unlawful plan into motion
• Solicitation: the defendant asked or told someone else to commit a crime
• Aiding and abetting: the defendant helped or encouraged someone else who committed a crime

Someone who completes a crime technically has also “attempted” the crime. However, they will not face punishment for both the attempt and the completed crime.

Defenses to Attempt

A defendant facing an attempt charge might argue that they did not intend to commit the crime. Perhaps they made a comment as a joke, and someone else took it seriously. They also might argue that they took no action toward the crime, or that the alleged “substantial step” had an innocent explanation.

Some (but not all) jurisdictions recognize a defense called withdrawal or abandonment in limited situations. Under the New Jersey statute, for example, a person charged with attempt has an affirmative defense if they abandoned their effort to commit the crime under circumstances showing a complete and voluntary renunciation of their criminal purpose.

Penalties for Attempt

The punishment for attempt often depends on the punishment for the attempted offense. For example, Florida provides the following hierarchy for sentencing:

• Attempt of a capital felony: first-degree felony (up to 30 years)
• Attempt of a life felony or a first-degree felony: second-degree felony (up to 15 years)
• Attempt of a second-degree felony: third-degree felony (up to 5 years)
• Attempt of a third-degree felony: first-degree misdemeanor (up to 1 year)
• Attempt of a misdemeanor: second-degree misdemeanor (up to 60 days)

Texas similarly treats a violation of the criminal attempt statute as an offense one category lower than the offense attempted. (If this was a state jail felony, which is the lowest level of felony, attempting the offense is a Class A misdemeanor.) In Pennsylvania, on the other hand, attempt is considered a crime of the same grade and degree as the most serious offense that the defendant attempted.

Federal law does not include a general prohibition against attempting a crime. However, various provisions in the U.S. Code prohibit attempts to commit certain specified federal crimes. For example, 18 U.S. Code Section 1349 provides that anyone who attempts to commit various fraud offenses will face the same penalties as those for the attempted offense.

Last reviewed November 2024