Criminal Attempts and Moral Luck

1. Any doctrine or theory of criminal attempts must address a number of basic questions: At what point does an attempt begin? What is merely preparing a deed, and what is beginning to perform the deed? What kind of mens rea is required? Is intention required, or is mere belief concerning the outcome sufficient? Is the attempt basically constituted by the mental (fault) element or the physical (conduct) element of the deed? Should attempts to do the impossible be criminalized? Should the punishment be the same for an attempt and a completed (consummated) crime, or should the punishment be less severe for an attempt? I suggest that the first two questions are different from the last two. The answer to the first two questions seems to be a matter of criminal policy and conceptual convenience. The solutions adopted in different jurisdictions depend considerably on the context, the design of the criminal law system, and on how wide the legislator wants to cast the protective net of threat of punishment.