Attempt and Conspiracy

In California, the punishment for conspiracy is the same as the the punishment for the target crime. If two men conspire to do a robbery, the punishment for the conspiracy is the same as the punishment for robbery. The conspirators get the full punishment even if they don’t complete the robbery itself. Merely making one overt act completes the crime as to all conspirators, even if it was only done by one conspirator and even if no harm resulted. (Pen. Code, § 182.)

California law treats attempt very differently. The punishment for attempt is half the punishment for the completed crime. (Pen. Code, § 182.) There are exceptions to this rule, such as attempted murder, but it holds for the vast majority of crimes. Attempt requires “a direct but ineffective step toward committing” the target offense. (CALCRIM 460, (Pen. Code, § 21a.)

Two things are worth noticing about these laws. First, it is much easier to prove a conspiracy than it is to prove an attempt. Second, the punishment for conspiracy seems to have a different philosophical underpinning than the punishment for attempt.

Why Are Conspiracies Easier to Prove Than Attempts?

The overt act requirement is very easy to prove. It merely requires “more than the act of agreeing or planning.”

An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.

(CALCRIM 415.)

The proof needed for an attempt, by contrast, is much more difficult.

direct step requires more than merely planning or preparing to commit [the target offense] or obtaining or arranging for something needed to commit [the target offense]. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit [the target offense]. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

(CALCRIM 460.)

In other words, a slight act, such as buying a pistol, can be an overt act that would prove a conspiracy. But the same act would not qualify as an attempt if it were done alone. Buying a pistol is not the kind of act “that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan hand not interrupted the attempt.” (CALCRIM 460.) After all, the criminal can abandon the attempt after buying the pistol, but the conspiracy is complete.

This kind of distinction has been fodder for law school exams for many years. As one textbook put it, “conduct can be punishable as a conspiracy at points much farther back in the stages of preparation than the point where liability begins to attach for attempt. In other situations an overt act must be proved, but the act may fall well short of the kind of conduct sufficient to constitute an attempt.”

Scholars justify the difference by pointing to the function of the overt act requirement. “The function of the overt act in a conspiracy prosecution is simply to manifest ‘that the conspiracy is at work’ …and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence.” (Yates v. United States (1957) 354 U.S. 298, 334.) Oliver Wendall Holmes is worth quoting at length:

An attempt, in the strictest sense, is an act expected to bring about a substantive wrong by the forces of nature. With it is classed the kindred offense where the act and the natural conditions present or supposed to be present are not enough to do the harm without a further act, but where it is so near to the result that, if coupled with an intent to produce that result, the danger is very great. But combination, intention, and overt act may all be present without amounting to a criminal attempt,—as if all that were done should be an agreement to murder a man 50 miles away, and the purchase of a pistol for the purpose. There must be dangerous proximity to success. But when that exists the overt act is the essence of the offense. On the other hand, the essence of the conspiracy is being combined for an unlawful purpose; and if an overt act is required, it does not matter how remote the act may be from accomplishing the purpose, if done to effect it; that is, I suppose, in furtherance of it in any degree.

(Hyde v. U.S. (1912) 225 U.S. 347, 387–388 [internal citations omitted.)

Perhaps conspiracy “fills the gap” left by the high standard to prove an attempt.

Since we are fettered by an unrealistic law of criminal attempts, overbalanced in favour of external acts, awaiting the lit match or the cocked and aimed pistol, the law of criminal conspiracy has been employed to fill the gap. If there are two persons involved, legal sanctions can be applied to the actor’s intentions; this can seldom be done if only one person is involved and if he is wise in the ways of the law but acts unsuccessfully alone.

(Note, 14 U. Toronto Fac. L. Rev. 56, 61-62.)

These distinctions are relevant to the practicing prosecutor. When two or more defendants are involved in a crime, it is often much easier to prove that they conspired to do the crime than that they attempted it. And as we have seen, the punishment in California is twice as stiff.

We Punish Conspiracy Differently Than Attempt

When someone tries to commit a crime in California and fails, they only receive half the punishment for the completed crime. By contrast, conspiracies are punished the same as if the conspirators had completed the target offense. Why do we lower the punishment for attempt? James Fitzjames Stephen, a man with four first names and a ton of experience in criminal law, has a theory.

If two persons are guilty of the very same act of negligence, and if one of them causes thereby a railway accident, involving the death and mutilation of many persons, whereas the other does no injury to anyone, it seems to me that it would be rather pedantic than rational to say that each had committed the same offence, and should be subject to the same punishment. […] Both certainly deserve punishment, but it gratifies a natural public feeling to choose out for punishment the one who actually has caused great harm, and the effect in the way of preventing a repetition of the offence is much the same as if both were punished.

(James Fitzjames Stephen, A History of the Criminal Law (Vol. 3) (1883) at p. 331.)

Law professor Theodore Y. Blumoff has a more controversial take. He argues that “most criminals [have] been ‘profoundly disadvantaged by unjust social institutions,'” and “often have suffered from bad luck which we can hardly imagine.” Thus, less severe punishment for failed attempts does not really reward good luck but instead serves as a partial “counterweight” to the overall bad luck of the offender’s social circumstances. (See Theodore Blumoff, A Jurisprudence for Punishing Attempts Asymmetrically (2003) 6 Buff. Crim. L. Rev. 951, 958, 973.) Professor Blumoff practiced corporate law before going to academia but has never tried a criminal case.

The California Legislature must agree. They are in a good place to tell what “natural public feeling” requires. But most scholars, including my beloved H.L.A. Hart, disagree. He argues that two person who are guilty of “the very same act” should be punished in the very same way, regardless of their good or bad luck. Put another way:

[C]riminal blame and punishment […] are the most stigmatizing and afflictive impositions of state power. […] Whether or to what degree people should be branded as criminals and imprisoned, or even put to death, should not be a matter of a lottery.

(Stephen J. Morse, Reason, Results, and Criminal Responsibility (2004) U. Ill. L. Rev. 363, 385.)

If you’ve read all the way through these lengthy quotes you probably understand the point. Even when there is evidence of both a criminal conspiracy and an attempt to commit a crime, prosecutors might have an easier time proving a conspiracy than an attempt.

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