Criminal Attempt: When Trying to Commit a Crime Becomes a Crime

In U.S. criminal law, a person can be punished even if the crime they planned never actually happens. That offense is called criminal attempt – an inchoate (incomplete) crime that targets the dangerous conduct of trying to commit another offense, such as robbery, murder, or burglary.

This article explains how attempt is defined, what prosecutors must prove, how it differs from mere preparation, how impossibility and abandonment work, and what penalties and defenses may apply.

1. What Is Criminal Attempt?

Most U.S. jurisdictions treat attempt as a separate offense that occurs when a person forms the required criminal intent and takes a significant step toward committing a specific underlying crime.

• Target offense: The crime the person is trying to commit (for example, theft, arson, or homicide).
• Attempt charge: The separate offense of trying to commit that target crime.

Many states follow the approach in the Model Penal Code (MPC), which defines attempt as conduct that, with the required level of culpability, includes a substantial step in a course of conduct planned to culminate in [the defendant’s] commission of the crime.

1.1 Attempt as an Inchoate Crime

Attempt is one of the major inchoate crimes, along with conspiracy and solicitation.

• Inchoate crimes punish dangerous behavior before the harm of the completed crime occurs.
• The law aims to allow early intervention while still limiting liability to conduct that clearly shows a decision to commit a crime.

2. Core Elements of Attempt

Although wording varies, U.S. jurisdictions generally require two core elements for criminal attempt:

• Specific intent to commit a particular crime; and
• Conduct that goes beyond preparation and amounts to a substantial or overt step toward completing that crime.

2.1 The Mental Element: Specific Intent

Attempt is an intent-based offense. Courts and statutes commonly require that the defendant specifically intended to commit the underlying crime, even when the completed version of that crime could be proved with a lower mental state.

Key points about intent in attempt law:

• The defendant must intend the criminal result or conduct of the target offense (for example, intending to kill, steal, or burn property).
• Mere recklessness or negligence, without intent to bring about the crime, usually is not enough for attempt.
• A person cannot be convicted of attempt only for thoughts or fantasies about committing a crime; there must be action.

2.2 The Conduct Element: Overt Act or Substantial Step

In addition to intent, attempt requires some concrete conduct. Jurisdictions describe this requirement in slightly different language:

• Some use an “overt act” test, requiring an outward physical act that goes beyond mere planning and comes reasonably close to completing the crime.
• Others, often influenced by the MPC, require a “substantial step” that strongly corroborates the defendant’s criminal intent.

Under the MPC, examples of conduct that may qualify as a substantial step include lying in wait for the victim, searching for or following the intended victim, or possessing materials specially designed for the crime, as long as these acts clearly demonstrate a firm purpose to complete the offense.

3. Preparation vs. Attempt: Where Is the Line?

One of the most difficult questions in attempt law is when conduct crosses the boundary from mere preparation to criminal attempt. Courts have created various tests to distinguish the two.

3.1 Mere Preparation

Generally, a person is not guilty of attempt if they only:

• Think about committing a crime;
• Talk about plans with others;
• Purchase general supplies that could be used for lawful purposes; or
• Conduct early-stage reconnaissance without a clear move toward carrying out the crime.

These actions may show bad intent but usually are considered too remote or ambiguous to justify criminal punishment.

3.2 Acts That Usually Indicate Attempt

Acts are more likely to be considered attempt when they:

• Move directly toward the commission of the crime (for example, entering a building at night with burglary tools and intent to steal).
• Show that, but for some interruption or circumstance, the crime was close to being completed.
• Use specialized tools, locations, or steps that make sense primarily in light of the planned crime.

3.3 Comparison Table: Preparation vs. Attempt

4. Impossibility: When the Crime Could Not Be Completed

Sometimes a defendant’s plan could never have succeeded: the property they meant to steal did not exist, the victim was already dead, or the act was legally incapable of being a crime. Modern American law largely rejects these arguments as defenses in attempt cases, with some important distinctions.

4.1 Factual Impossibility

Factual impossibility occurs when external facts prevent completion of the crime, even though the defendant’s plan would be criminal if things were as they believed.

• Example: Taking a wallet that turns out to be empty, or picking a pocket that has no money in it.

Most U.S. jurisdictions hold that factual impossibility is not a defense to attempt because the defendant still demonstrated dangerous intent and took substantial steps toward a crime.

4.2 Legal Impossibility

Legal impossibility traditionally refers to situations where, even if the defendant did exactly what they planned, their conduct would not actually be a crime under the law.

• Example: Attempting to import goods that the defendant mistakenly believes are illegal, when in fact they are lawful.

Some older cases recognize legal impossibility as a defense, but modern reforms and the MPC significantly narrow or reject this distinction. The MPC states that a defendant is guilty of attempt if the facts are as they believe them to be, even if completion is impossible in reality.

5. Abandonment and Renunciation

Another recurring question is what happens when someone begins an attempt but then changes their mind and walks away. Some legal systems allow a limited defense of voluntary abandonment or renunciation, while others treat abandonment as irrelevant once the crime of attempt is complete.

5.1 MPC Approach to Renunciation

Under the Model Penal Code, a defendant is not guilty of attempt if they abandon their effort or prevent the crime from being committed, and this renunciation is both complete and voluntary.

• The decision cannot be motivated solely by fear of getting caught, a change in circumstances that makes the crime riskier, or a belief that another opportunity would be better.
• Renunciation must reflect a genuine change of heart or moral decision not to commit the crime.

States vary in how fully they adopt this MPC rule.

6. Grading and Penalties for Attempt

Attempt is usually punished less severely than the completed crime, but many jurisdictions still impose serious penalties, especially when the target offense is a major felony.

6.1 Relationship to the Underlying Crime

States often grade attempt in one of two ways:

• By statute, attempt is set at a lower degree than the completed offense (for example, one degree lower than the target felony).
• In some systems, attempt may carry the same grade as the target offense, especially under MPC-influenced codes, with some exceptions.

For example, Washington law provides that attempt is classified according to the level of the underlying offense: an attempt to commit a class B felony is a class C felony, an attempt to commit a class C felony is a gross misdemeanor, and so on.

6.2 Typical Consequences

Depending on the jurisdiction and target crime, consequences for an attempt conviction may include:

• Substantial prison or jail time;
• Fines and restitution;
• Probation with strict conditions;
• Permanent criminal record indicating an attempt to commit a serious crime;
• Collateral consequences, such as immigration issues or loss of professional licenses.

7. Common Defenses to Attempt Charges

Defending an attempt case often focuses on challenging either the alleged intent or whether the defendant’s conduct truly amounted to an attempt.

7.1 No Specific Intent

If the defense can show that the defendant did not intend to commit the target crime, the attempt charge usually fails.

• Evidence that the defendant’s statements or actions were misunderstood.
• Proof that the conduct was consistent with a non-criminal purpose.
• Attack on prosecution witnesses’ credibility about alleged statements of intent.

7.2 Conduct Was Only Preparation

Another key strategy is arguing that the defendant never took a substantial or overt step toward completion of the crime.

• Showing that acts were preliminary, such as shopping for ordinary items or browsing online without moving toward execution.
• Emphasizing lack of proximity in time or space between the conduct and possible criminal harm.

7.3 Impossibility Arguments

Depending on local law, a defendant may raise arguments about impossibility, especially legal impossibility. However, modern statutes and cases are often skeptical of this defense and focus instead on the defendant’s beliefs and intent.

7.4 Abandonment (Where Recognized)

In jurisdictions that recognize abandonment or renunciation, the defense may argue that:

• The defendant voluntarily and completely renounced the criminal plan; and
• The renunciation was not driven only by fear of arrest or by external obstacles.

8. Attempt in the Model Penal Code and State Laws

While each state writes its own criminal code, many have been influenced by the Model Penal Code’s approach to attempt.

• MPC Section 5.01 defines attempt and lists examples of substantial steps, emphasizing conduct that strongly corroborates the actor’s criminal purpose.
• MPC Section 5.05 addresses grading, ordinarily aligning the seriousness of attempt with that of the target offense, with some downgrading for the most serious crimes.
• State statutes, such as Washington’s criminal attempt law, adopt their own grading schemes but similarly tie penalties to the seriousness of the underlying crime.

9. Practical Takeaways

Understanding attempt is critical because it applies to a wide range of criminal cases, from attempted theft to attempted homicide. Some practical points include:

• Attempt charges can arise even when no harm ultimately occurs.
• The prosecution must prove both specific intent and a significant step toward committing the crime.
• Impossibility and abandonment defenses are limited and highly dependent on jurisdictional law.
• The penalties for attempt frequently mirror, or are just one level below, those for the completed offense, especially for serious felonies.

Frequently Asked Questions (FAQs)

Q1: Can I be convicted of attempt if the crime was never even close to happening?

Possibly. The key question is whether you took a substantial or overt step that clearly moved beyond preparation. If your actions were still remote from carrying out the crime, you may not meet the legal threshold for attempt, but this is a fact-specific judgment for the court or jury.

Q2: Is it a defense that the crime was impossible to commit?

Generally, factual impossibility—such as the victim not being present or the property not existing—is not a defense. Many modern statutes and the Model Penal Code also limit or reject legal impossibility, focusing instead on what the defendant believed and intended.

Q3: What if I changed my mind before anything happened?

In some jurisdictions, voluntary and complete renunciation can be a defense if recognized by statute, particularly under MPC-influenced codes. In others, once you have taken a sufficient step toward the crime, simply changing your mind does not automatically erase criminal liability.

Q4: Are attempt penalties always lower than for the completed crime?

Often, yes—many states grade attempt one level below the underlying offense. However, some codes influenced by the MPC treat attempt as the same grade as the target crime, especially for lesser felonies or misdemeanors, or subject to specific statutory rules.

Q5: Do I need a lawyer if I am charged with attempted crime?

Attempt charges can carry severe penalties and involve complex issues of intent, impossibility, and abandonment. Legal standards vary significantly by state, so it is important to consult a qualified criminal defense attorney in your jurisdiction.

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medha deb

 

Medha Deb is an editor with a master's degree in Applied Linguistics from the University of Hyderabad. She believes that her qualification has helped her develop a deep understanding of language and its application in various contexts.

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