Risk and Inchoate Crimes: Retribution or Prevention?

SEEKING SECURITY: PRE-EMPTYING THE COMMISSION OF CRIMINAL HARMS, Forthcoming

San Diego Legal Studies Paper No. 11-064

28 Pages Posted: 9 Sep 2011  

Larry Alexander

University of San Diego School of Law

Kimberly Kessler Ferzan

University of Virginia, School of Law

Date Written: September 8, 2011

Abstract

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.

Keywords: risk, culpability, inchoate crimes, prevention

JEL Classification: K10

Suggested Citation

Alexander, Larry and Ferzan, Kimberly Kessler, Risk and Inchoate Crimes: Retribution or Prevention? (September 8, 2011). SEEKING SECURITY: PRE-EMPTYING THE COMMISSION OF CRIMINAL HARMS, Forthcoming; San Diego Legal Studies Paper No. 11-064. Available at SSRN: https://ssrn.com/abstract=1924477

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

Kimberly Kessler Ferzan

University of Virginia, School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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