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By its sentencing guidelines (the world over?), murder is considered a more serious crime than attempted murder.

If intent to kill has indeed been proven, does the latter crime reward incompetence with leniency? i.e. shouldn't the incarceration of such a criminal be intended to either rehabilitate them, or to protect the public from them? So if the intent for an attempted vs. successful crime is the same, wouldn't it take the same effort to rehabilitate them, or require the same precautions to contain them?

bdb484
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Tom Bowers
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  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Jul 24 '20 at 22:37
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    This really ought to have been posted over in Politics.SE. Law.SE is for questions about what the law actually is. Questions about why it is that way are questions about political decision making in legislatures, and hence belong on Politics. Having said that, this question has had some good answers here so its not useful to move it at this stage. – Paul Johnson Aug 18 '20 at 08:12
  • @TomBowers Can you please tag your jurisdiction? –  Aug 18 '20 at 21:09
  • I would ask if this was always the case. In England theft really was punished by death and in the same time period (pre 1800 or so) surely attempted murder, esp. with bodily harm, could have also resulted in the death penalty and if not, I am sorely puzzled. Today, fraud is punishable by death in China -- but assaulting someone with intent to kill or even plain assault where severe bodily harm is caused is never punished by death? Surprising indeed. – releseabe Jul 15 '23 at 05:54

9 Answers9

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Your question is the subject of longstanding and ongoing debate that has generated countless articles and books and dissertations, so you're probably not going to get a fully satisfactory answer here.

But here's the short version: Different systems operate on different assumptions. Your question suggests you are not a retributivist, i.e., someone who views sentencing as a means for taking retribution for the criminal's offenses. Some systems (most, I imagine) are built around that idea, but some view criminal sentencing primarily as a means of preventing recidivism, or as a means for achieving rehabilitation, the interests you indicated you see as more important.

And even within those systems, there are still different ideas about what you're actually trying to do. Again, you've indicated that you subscribe to an intent-based system (a punishment keyed to what the criminal intended to do), but that approach competes with harm-based sentencing (punishment for the harm the criminal actually caused).

While equal punishments make sense from an intent-based approach, they are less justifiable from a harm-based approach. Few would say that attempted murder inflicts the same amount of harm as completed murder, and so that system does not call for the same amount of punishment.

Because there are different approaches, sentencing guidelines vary from jurisdiction to jurisdiction. The U.S. Federal Sentencing Guidelines, which I would classify as adopting a harm-based retributivism, treat attempts less severely than completed offenses, but other systems treat them equally.

bdb484
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    If I took such an approach with my son, I'd have to wait for him to actually hit me with his porridge before I punished him for the attempt. Of course, it's important to teach him the lesson, whether or not he has achieved good spoon control yet. Thanks for putting some proper terms to the subject for me! – Tom Bowers Jul 22 '20 at 06:51
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    @TomBowers Intent based punishments make sense when you are focussed on the morality of the offender, which naturally you are here as a parent. However, I would suggest that if (God forbid) some harm came to your son through someone else's negligence, you would not think lack of intent was the most important thing. – richardb Jul 22 '20 at 08:05
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    @richardb brings up an interesting point: the intent vs harm debate also applies to the opposite case, if I kill someone but didn't intend to, it is still manslaughter and I can't just get off scott free for my recklessness unless my actions can be justified. So in that case, intent-based retributivism would say I don't deserve punishment, but harm-based retributivism would say I do. Especially since it's impossible to read minds and it's easy to lie ('i didn't mean it, honest!'), from the practical point of view harm-based retributivism is easier to implement. – stanri Jul 22 '20 at 08:17
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    Since ultimately the consequences of our actual actions are much more solid than the intentions behind those actions, and people killed, intentionally or otherwise, still have family members who want justice. But I'm not a lawyer and this is just my layperson take on the matter. – stanri Jul 22 '20 at 08:19
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    "Your question suggests you are a retributivist" -- I don't see this at all. OP explicitly argues based on rehabilitation and incapacitation ("protect the public from them"), not retribution. And the nice thing is that unlike retribution (which is a matter of moral intuition), rehabilitation and incapacitation can be evaluated somewhat objectively and empirically -- how much does the incarceration reduce crimes that would otherwise have occurred during and after its term? – nanoman Jul 22 '20 at 13:13
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    One study could be: Do attempted murderers who are factually guilty but acquitted on a technicality go on to commit less or less-serious crime than similarly situated actual murderers? This would establish whether the baseline need for rehabilitation and incapacitation is different. – nanoman Jul 22 '20 at 13:14
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    There's also the burden of proof issue - if you successfully murder someone, there's solid evidence of the crime - a body, presumable forensic evidence or witnesses to connect you to the murder, etc. If you intended to murder someone but failed, you can often claim that murder was never your intent, you just wanted to rough them up a bit or something. They can't read your mind to tell that was a lie. – Darrel Hoffman Jul 22 '20 at 14:07
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    Probably tangential, but the whole concept of "harm-based retributivism" seems logically inconsistent with the definition of first-degree murder, which in the US requires intent. If you care about the intent in prosecution, the intent must have some role in the sentencing. It does seem much easier to implement harm-based retributivism. – Z. Cochrane Jul 22 '20 at 18:15
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    Intent retains a role in harm-based sentencing; it just isn't the initial or primary consideration. – bdb484 Jul 22 '20 at 19:16
  • @stanri Manslaughter is often "you intended to harm them, but not kill them, and ended up killing them". Like, you punch someone in a brawl, they fall over and hit their head. Negligent Homicide is when you should have known better that your actions would cause lethal harm, but didn't even intend to harm them. If you took due care and your actions regardless killed someone, that usually isn't called manslaughter. (Terms are almost certainly wrong: but the point is that these 3 cases are treated differently) – Yakk Jul 22 '20 at 20:17
  • "Harm done" vs "intent" for determining punishment seems to be the key element in OPs question, and I'd like their clarification. At the extreme, I could have full intent to destroy all life on earth, confess to that intent, but be utterly incapable of harming anyone due to circumstance. Clearly the punishment for my intent/failed-attempt should/would be different than my success. – JesseM Jul 22 '20 at 20:51
  • @JesseM You're correct that I'm trying to validate the relative weights of harm vs intent in deciding punishment. I am not arguing for either side particularly. In fact, from the answers so far, I'd agree that it's a complex question, and the answer needs to find a balance between a number of factors, such as punishment, recognition of harm, community protection, deterrence, rehabilitation, accountability, denunciation. – Tom Bowers Jul 22 '20 at 23:36
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    @l0b0 Yes, that was my clunky wording. I've adjusted it. – bdb484 Jul 23 '20 at 01:02
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    @TomBowers If you see your son about to fling porridge at you, you could respond with "Don't!" But once he's done it, you would have to reason with him in an age appropriate way to explain why porridge flinging is bad and why he shouldn't do it. I should also point out that children's sense of morality is still developing, so he might still fling porridge at you anyway. Punishment might not be appropriate. – CJ Dennis Jul 23 '20 at 02:28
  • It was more a joke than a reflection of my parenting style, though you raise an interesting point. Intent seems to become more relevant in the case of a minor, or the mentally ill. I find it interesting that culpability follows capability in these cases, which could be taken to imply that harm is not the most important factor. As @bdb484 suggested though, it might be difficult to get a completely satisfactory answer to something so subjective. – Tom Bowers Jul 23 '20 at 02:53
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    Intent vs Harm gets even more complex if your intent is good. If you gave the wrong medicine and it killed them, the harm is that they're dead, but the intent is that they get cured. – Nelson Jul 23 '20 at 02:57
  • @Yakk thanks for the clarification. I hesitated over the use of the word when I commented because I wasn't 100% clear on the differences between homicide vs manslaughter, but I figured it would still get the point across. – stanri Jul 23 '20 at 12:34
  • @nanoman Very correct -- my error. I've adjusted my explanations to better capture the OP's assumptions. – bdb484 Jul 24 '20 at 17:27
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You may get more effective murderers that way

I would frame the question from the perspective from the criminal.

If they know they will be punished equally from attempted murder from actual murder, they will try harder to get the results they want. More if is this common knowledge.

By rewarding incompetence, you may end with a incompetent murder instead of a competent one. It probably easy to rehabilitate the former.

André LFS Bacci
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  • please back up your answer with some legal theory – Trish Jul 22 '20 at 15:48
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    Do you have any evidence that this argument was made by those drafting the laws? – Brian Jul 22 '20 at 16:35
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    I don't know if this answer was based on the law or just a guess, but it's definitely correct. The Florida Supreme Court addressed this question in State v. Iacovone, 660 So. 2d 1371 (1995) ("The penalty for the completed crime should be greater, not less, than the penalty for the attempt. Otherwise, a criminal who attempts to murder a law enforcement officer would have a substantial incentive to complete the act in order to avoid exposure to the harsher penalty. The State's interpretation thus would seem to encourage, not discourage, lethal attacks. This is an irrational result.") – bdb484 Jul 22 '20 at 19:24
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    @bdb484 of course completing the act shouldn't have a lesser penalty than an attempt, but we're discussing equal penalties. – Aubreal Jul 22 '20 at 20:18
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    Wouldn't someone afraid of the consequences simply not attempt murder instead of planning one that will fail? – Aubreal Jul 22 '20 at 20:23
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    @AlexandreAubrey the example given only works because the victim is a police officer. The assailant might be willing to risk life-or-limb to avoid a full murder sentence but not for a shorter attempted murder sentence. If the punishment is equal the assailant has an incentive to make sure the police officer is dead and thereby potentially avoid the sentence entirely. The general extrapolation where the victim isn't a police officer doesn't work in my mind with this reasoning, though the case cited was specifically about a police officer victim. – gormadoc Jul 22 '20 at 20:56
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    Note that making sure the victim is dead can also increases your chance of getting away with it if the victim is not a police officer. For example, it reduces the number of witnesses! – Josiah Jul 22 '20 at 21:16
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    To look at this a different way, suppose you are trying to kill some one, make the attempt and haven't succeeded yet, and start to regret your actions. You now have the opportunity to stop the attempt. If the consequences for attempted murder are not less than successful murder you might brush off your regret and decide to continue your attempt anyway, because if you don't, at the very least, (as @Josiah said) if you will almost certainly have a credible witness against you. – Andy Jul 22 '20 at 21:50
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    "It probably easy to rehabilitate the former." Imagine the argument, "Hmm, all 3 of your victims lived. You're not a very effective serial killer, so maybe you should try a different career." :-) – jpaugh Jul 23 '20 at 21:51
  • Darwinism at work :) – Hagen von Eitzen Jul 24 '20 at 13:03
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    This is also why the punishment for murder in general must always be greater than the punishment for any other type of assault. Otherwise you might as well kill your victim once you've done committing the other offense. – JonathanReez Jul 24 '20 at 18:39
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The legal theories regarding homicides have changed a lot, but there has not always been some kind of distinction between the attempt and the result. It's the distinction between an assault with a deadly instrument and the resulting killing. And not all jurisdictions look at things the same way! The aspect of killings under the aspect of Law in History is a very interesting question:

Republican Roman Law dictated to torture all slaves of a killed landowner to find out if any of the slaves were in league with the killer because Law dictated slaves were needed to be tortured so their testimonial was admissible in court. And then, all that were found to have not protected their owner could be summarily executed1. The very same state also said that not all killings were equal: Killing your own father or close relative was seen as more heinous and was punished by a more cruel death than killing your neighbor while inflicting death upon your own slave was without punishment, slaying someone's else slave was a civil dispute where you destroyed a thing.1 But Roman law did not have murder per se, only homicide, which was defined by the intent and the item used - it didn't matter if you did succeed at once, or if he died later from the wound:

On the other hand the Roman law had but one crime of this nature, viz., homicidium (with its aggravated form of parridicium or slaying of a relative) and this originally .was purely a crime of intent.15Hunter, Roman Law, 1069 Thus, fatally wounding another with a sword was homicidium; but striking him with an .iron key was not, even though the result should prove equally fatal. 16Justinian's Digesta, XLVIII, VIII, I, III.

Negligence resulting in death is mentioned as early as the Twelve Tables, but not as a crime, nor was it visited with a serious penalty. "One who slays another accidentally," it is declared, 19XII Tables, VIII, 24 "shall provide a ram to be sacrificed in his stead." 2

The same document quoted here also shows some insight in other areas where the distinction between different types of killings comes from, for example in Japan:

Chapter XXVI of the Japanese Penal Code treats of (intentional) homicide which may be given capital punishment.37Japanese Penal Code, Art. 199. But Chapter XXVIII covers "involuntary (accidental) homicide" which is "punished with a fine not exceeding one thousand yen."38ld. .Art 210.

This refers to the Japanese Penal Code, which also lists in the 1960 edition:

Article 199　A person who kills another shall be punished by the death penalty or imprisonment with work for life or for a definite term of not less than 5 years.

Article 201　A person who prepares for the commission of a crime prescribed under Article 199 shall be punished by imprisonment with work for not more than 2 years; provided, however, that the person may be exculpated in light of circumstances.

Article 202　A person who induces or aids another to commit suicide, or kills another at the other's request or with other's consent, shall be punished by imprisonment with or without work for not less than 6 months but not more than 7 years.

Article 203　An attempt of the crimes prescribed under Article 199 and the preceding Article shall be punished.

Here we see that murder is not defined. Just "you kills somebody, you get punished" under 199, 201, 202, or 203. Attempt here is apparently punished just like the deed itself, even preparing a killing is a crime.

A totally different approach has modern Germany under StGB 211, prescribing always life in prison as the sentence for the done deed. As it is a Verbrechen to commit murder, the StGB 22 does make it's attempt punishable, in principle also with the same punishment. However, the judge can use StGB 23 Abs. 2 to lessen the punishment to 3-15 years as StGB 49 dictates, and total incompetence (like... attempting to stab somebody to death with a rubber knife held between the teeth while having the feet tied together) can allow to not punish at all or any other lesser sentence under StGB 23 Abs 3. But Germany also has a single article in its Grundgesetz, which carves out a hole in the normal laws:

(4) Gegen jeden, der es unternimmt, diese Ordnung zu beseitigen, haben alle Deutschen das Recht zum Widerstand, wenn andere Abhilfe nicht möglich ist.

(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order if no other remedy is available

This has been discussed as possibly including a carte blanche to murder of a dictator, but so far hasn't been invoke ever.

Trish
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To add to the existing arguments, consider this from the point of view of crime deterrence, i.e., you view the sentence as a means to deter people from murdering others.

Specifically, suppose that Alice attempted to murder Bob but failed. If Bob has noticed, Alice is confronted with the risk that he secures evidence, alerts the authorities, and eventually she gets sentenced for attempted murder. In many situations, the most feasible way for Alice to avoid this is to murder Bob. For example if Alice tried to shoot Bob and missed, her best option to avoid a sentence is often to try to shoot Bob again. Now, in a system where the sentence for murder is the same as for attempted murder, there is no legal incentive for Alice to not attempt to murder Bob again: The worst that can come from murdering Bob is the same sentence she would be facing for attempted murder, while at best a successful murder allows her to cover up her crime. This is obviously bad for Bob.

In general, this is one reason to sort the punishments of crime by severity as far as possible. For example, if the punishment for theft is the same as for robbery, there is no incentive for the thief not to use violence if caught in the act. Or, if the punishment for rape is the same as for murder, there is no legal incentive for a rapist not to murder his victim to cover his tracks.

Wrzlprmft
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  • On a related note, countless "attempted" crimes are thwarted by the criminal's conscience; the actual number is unknowable, but depending upon how broadly one characterizes "attempted" crimes, may represent a majority of "attempts". People whose conscience would prevent them from actually completing a crime may be more likely to be caught than people without a conscience, despite the fact that the latter would represent a greater danger to society. – supercat Aug 14 '23 at 20:44
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Why is ...

Not sure about US/UK laws, but based on German laws, this question is a highly opinion-based question so my answer will be opinion-based.

I also have to say that I'm not a lawyer, so my answer is not an expert's answer.

Why is murder considered a more serious crime than attempted murder?

Background

German law (§23 StGB) states that ...

  • ... an attempted crime "can" be punished less hard than the "successful" (*) crime; however, the word "can" means that it is also possible to punish the attempt as hard as the "successful" crime.
  • ... an attempted crime may even be left unpunished if the success was absolutely impossible from the beginning. For example if somebody tries to stab another person with a gun instead of a knife.

I know that German courts do punish less hard if the criminal made mistakes and therefore the crime was not successful. They would punish an attempted murder the same way a murder is punished if the murderer did everything "correctly" and it is not the murderer's "fault" that the victim is still alive.

My personal interpretion of this rule is:

The fact that a murder "failed" because the murderer made stupid mistakes is an indication that the murderer did not really want to commit the murder.

Therefore, the attempted murder is punished less hard.

However, if there are no signs that the murderer did not really want to commit the murder, the attempted murder is punished the same way as "successful" murder.

And "same punishment" also means that the attempted murder is not seen as less serious than successful murder.

(*) German law really uses the word "successful" here.

Martin Rosenau
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  • German law really uses the word "successful" here. – Well, German law does not use an English word. And even ignoring that, I would not translate vollendet with successful, but completed or similar. – Wrzlprmft Jul 23 '20 at 13:31
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    @Wrzlprmft In other parts of the law you'll find the expression "*Erfolg der Straftat*". I'm referring to that expression. – Martin Rosenau Jul 23 '20 at 13:33
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I guess it depends on the jurisdiction.

I can tell you that here in Switzerland, in principle, there is no difference between murder and attempted murder when it comes to sentencing.

In the end, it all boils down to the reason why it remained just an attempt, and we differentiate different types of attempts. Particularly, an attempt can be completete or incomplete, and furthermore it can be failed or inadequate.

Say, for example, the felon waited for you in the house, with the intention to kill and the rob you, shot you in the face, then left you for dead - and still, by some huge stroke of luck you survived. The sentencing would not be impacted by your survival. He meant to murder you, and all he did would have normally sufficed to reach his goal. The attempt was completed and the used method adequate.

On the other hand, if the same felon in the end just shoots you in the foot once, not because he missed (inadequate attempt) or refrains from shooting at all (attempt not completed), or he shoots you in a way that could actually kill you if left alone but he immediately regrets it, tends to your wound and calls an ambulance, and you survive (attempt completed with immediate and true remorse)... well, it's understandable that this won't and should not be sentenced the same as a cold blooded murder.

vic
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In response to the comment that Wrzlprmft wrote below about no incentive to stop attempting to murder a person, I'm not sure I agree about that. For one thing, possibly every time an attempt is made, an additional element of risk is introduced into the would-be-murderers life, whether or not the attempt is successful. I would argue most crimes are of this nature. Whether or not you actually sell some drugs, offering them on the street is bound to be risky. The same with prostitution, spousal abuse, and probably even terrorism. (Even if your bomb is a dud, placing it in the Embassy is risky...) So your incentive for not trying to murder a person again is that you are less likely to get caught. Am I missing something there?

I can imagine situations where a person has an uncertain amount of planning and intent to commit a crime. We aren't robots... well, maybe we are; that is to say our actions are determined by the laws of chemistry/quantum mechanics- just like robots and computers. But we ourselves have insufficient introspective power to know how we will act on particular contingencies.

My father was murdered in Costa Rica about a decade ago; and for a long time I tried to hunt the killer down with the intent to commit retributive violence on him. The townspeople were of very little help, and the trail got cold fast despite my offer of a $8K cash reward for information. (All I could scrape together at the time.) All this time, while I did more than occasionally fantasize about "making him pay", another line of thought became dominant where I merely demanded to know why he killed my father, who was reading a book under a tree when his killer snuck up and shot him in the back of the head. (This according to the OIJ, eg the Costa Rican FBI.) So my "plans" were largely unformed, and hinged on further information about the killer. Maybe my father threatened to assault them or their family. (Super unlikely- he was an incredibly shy and introspective musician.) Because I was unable to assess the motive, I didn't know how I would react emotionally to a confrontation with the killer if it was to occur. They didn't even take anything from his backpack after killing him- so theft probably wasn't on the menu.

I think most murders aren't cold-blooded (eg pre-meditated) but are rather crimes of passion. Sort of like road-rage. An already unhinged gun nut (I mean owner), when beaten up at a bar for cheering for the wrong soccer team, might drunkenly return with their firearm to "make them pay". And similarly to myself; they might not even know what "making them pay" entails. It is pretty disheartening thinking "some people with guns just like to kill other people for no particular motive other than it being as easy as point-and-click" - but that seems to be the most likely scenario. At least with knives or fists, there is more effort required to kill a person; and I think possibly in the middle of beating a guy up a possible killer might think "this is pretty hardcore. Maybe he learned his lesson already" - even if their intent was originally to punch the guy to death.

For this reason I think success should be a major part of the sentencing system. Many of the posts here seem to indicate a little bit of .. well, philosophical abstraction from the realities of planning/thinking about a thing versus actually doing it.

Noah Edelson
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Other answers list quite valid points, but miss the following one:

No penal system is perfect.

A reasonable system would account for its own imperfections.

A murder is quite easier to prove than an attempted murder.

fraxinus
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How broadly can you define "attempted"?

If a murder is successful, there is certainty that the punishments are warranted given the crime.

But what counts as "attempted" will always require a degree of interpretation both of actions and intent. A lighter punishment concedes this uncertainty.

Rhetorically, should those accused of attempted murder be eligible for the death penalty? Given that the death penalty already has uncertainty associated with wrongful convictions, introducing greater uncertainty by applying it to people who have not actually murdered a person seems unwise.

Pat W.
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Richard
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    "interpretation of actions and intent" -- isn't that why there is a trial? I believe this question is abstracted from the details, and we should start by assuming the guilt has been determined at trial already. – Ross Presser Jul 22 '20 at 19:10
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    @RossPresser If a trial would always get the full truth, and a judgement properly tailored to all the specifics of the crime(s) without any biases and wrong assumptions, why would there be any guides and bounds for punishment in the law itself at all? – Deduplicator Jul 23 '20 at 13:06