Risk and Inchoate Crimes: Retribution or Prevention?
University of San Diego School of Law
Kimberly Kessler Ferzan
University of Virginia, School of Law
September 8, 2011
SEEKING SECURITY: PRE-EMPTYING THE COMMISSION OF CRIMINAL HARMS, Forthcoming
San Diego Legal Studies Paper No. 11-064
In this book chapter we give a definition of inchoate crimes and argue that inchoate crimes, so defined, are not culpable and do not deserve punishment. Our argument against the culpability of inchoate crimes is based on several points: the ability of the actor who intends a future act that might be culpable if performed to change his mind prior to the act’s performance; the conditionality of all future-oriented intentions; uncertainty regarding the culpability-enhancing or culpability-mitigating circumstances that will exist at the future time of performance; and the roles of vacillation and duration in assessing culpability. We argue that punishment for inchoate crimes should be regarded as preventive rather than retributive.
Number of Pages in PDF File: 28
Keywords: risk, culpability, inchoate crimes, prevention
JEL Classification: K10
Date posted: September 9, 2011