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Are Attempts Like Treason?

37 Pages Posted: 23 Nov 2009 Last revised: 22 Jan 2010

Stephen P. Garvey

Cornell Law School

Date Written: November 23, 2009


If the state can legitimately criminalize only actions that cause or risk harm, and if it respects the fact that an actor who sets out to commit a crime can always change his mind until he takes the last step, we are apt to end up with a law of attempts in which an attempt is a crime only when the actor has taken the last step, or come very close to taking it. Our dominant theories of attempt, objectivism and subjectivism, do indeed end up with such a narrow law of attempts. In contrast to these theories, I suggest that an actor who chooses to form the intent to commit a crime, who chooses to resolve to commit that crime, and who chooses to take a step in furtherance of that intention is akin to a traitor. He has chosen to obey a self-made law antithetical to the law claiming his allegiance, and the state should in principle be permitted to punish him, as it should any traitor.

Keywords: criminal law, attempts

JEL Classification: K14

Suggested Citation

Garvey, Stephen P., Are Attempts Like Treason? (November 23, 2009). Available at SSRN: or

Stephen P. Garvey (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States
607-255-8589 (Phone)
607-255-7193 (Fax)

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