Impossibility, Subjective Probability, and Punishment for Attempts
![handle is hein.journals/legstud20 and id is 183 raw text is: IMPOSSIBILITY, SUBJECTIVE PROBABILITY,
AND PUNISHMENT FOR ATTEMPTS
DAVID D. FRIEDMAN*
STEVEN SHAVELL, in his recent article Deterrence and the Punishment
of Attempts,' raises the question of whether people should be punished
for attempted crimes that are impossible-that have zero probability of
succeeding. Two examples are the person who attempts to commit mur-
der by voodoo and the pickpocket who attempts to pick an empty pocket.
His conclusion is that we can reformulate the idea of 'impossible' at-
tempts so that it corresponds to those acts that carry with them a negligi-
ble probability of harm. Such acts should not be punished because there
is no need to deter them.
In his analysis, Shavell considers the objective probability that an act
will succeed and the (subjective) probabilities held by the court. He does
not consider probabilities from the standpoint of the offender. The pur-
pose of this note is to argue that it is crucial, in analyzing the question
of punishment for impossible attempts, to consider the subjective proba-
bilities of the offender-his beliefs as to what methods of committing the
crime work.
Obviously, if the offender knows that the method he is using will not
work, he will not use it-or, if he does, he is not in fact attempting to
commit the crime. The important case is the one where the court knows
that the method is impossible but the offender does not. If the offender
is aware of his own ignorance and rationally allows for it in his decision,
then, as we will see, punishing impossible attempts does in fact deter
offenses. If, however, the offender believes that he has perfect knowledge
* John M. Olin Visiting Fellow in Law and Economics, University of Chicago Law
School.
' Steven Shavell, Deterrence and the Punishment of Attempts, 19 J. Legal Stud. 435
(1990).
[Journal of Legal Studies, vol. XX (January 1991)]
© 1991 by The University of Chicago. All rights reserved. 0047-2530/91/2001-0002$01.50](ViewImageLocal?handle=hein.journals/legstud20&div=12&collection=&method=preview&ext=.png&size=3)
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Impossibility, Subjective Probability, and Punishment for Attempts
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