What Does Criminal Attempt Mean in Criminal Law?
Criminal attempt generally means taking a significant step toward committing a crime while intending to complete it, even though the crime is not finished. The exact legal test and possible penalties vary by state and by offense. In U.S. criminal law, courts often focus on two questions: what the person intended and how far the person went beyond preparation. Knowing how those elements work can clarify why an unsuccessful plan may still lead to criminal charges.
What Criminal Attempt Means
In criminal law, an attempt is an incomplete offense: the defendant allegedly intended to commit a particular crime and took action toward carrying it out, but the completed crime did not occur. A person may be charged with attempted burglary, attempted robbery, or attempted murder, for example, if the evidence meets the jurisdiction’s requirements.
Attempt is usually treated as an inchoate offense. “Inchoate” means the crime is not complete, but the law may still punish conduct that creates a meaningful risk of harm. The underlying offense—the crime the person allegedly tried to commit—is sometimes called the target offense.
Attempt does not require the target crime to succeed. A person can potentially commit attempted theft even if nothing is taken, or attempted arson even if a fire never starts. But a failed outcome by itself does not establish an attempt. Prosecutors generally must prove the required intent and a sufficiently substantial act under the applicable law.
The Two Main Elements of Criminal Attempt
Although statutory wording differs across the United States, attempt commonly involves criminal intent and an overt act or substantial step toward the target offense. Both elements matter. Suspicious behavior, preparation, or a bad outcome alone may not prove attempt.
Intent to commit the target crime
The prosecution generally must show that the defendant intended to commit the specific crime alleged. For example, attempted burglary usually requires evidence of an intent to commit a crime inside a structure, not merely evidence that someone approached or entered it. The required mental state depends on the target offense and the relevant statute.
Intent is often proved through circumstances rather than a direct statement. A court or jury may consider conduct, communications, tools, planning, the location, and what the defendant did immediately before being stopped. These facts can support an inference, but they do not automatically prove guilt; the prosecution must meet its burden of proof.
Some crimes can be committed with mental states such as recklessness or negligence, but attempt law often requires a higher level of intent because the defendant must mean to bring about the target crime. How that rule applies can depend on the offense and the jurisdiction. A specific-intent requirement should not be assumed to resolve every case without examining the governing statute and court decisions.
An act beyond mere preparation
The defendant must usually do more than think about a crime, discuss it, or gather ordinary supplies. The law requires conduct that crosses a line from preparation toward execution. The exact line is one of the central questions in attempt cases.
For example, purchasing a tool that could be used in a burglary may be lawful on its own. Going to a particular building at night with the tool may provide more evidence, but might still fall short under some legal tests. Trying to force a window or disabling an alarm may be much closer to carrying out the offense. The full context matters, including intent, conduct, and applicable law.
How Courts Decide Whether an Act Is Enough
States and courts use different approaches to decide when conduct becomes an attempt. A widely influential approach appears in the American Law Institute’s Model Penal Code, but the Model Penal Code is a model—not a law that automatically governs every state. State statutes and case law control in a particular case.
Substantial-step test
Under the Model Penal Code approach, a person may be guilty of attempt if the person acts with the required culpability and takes a substantial step toward committing the crime. The step must strongly corroborate the person’s criminal purpose. This test can allow intervention before the defendant reaches the final moments of the offense, while still requiring conduct that provides persuasive evidence of intent.
Examples listed in the Model Penal Code include lying in wait for a potential victim, trying to lure someone to a location where a crime is planned, or possessing materials specially designed for the offense in circumstances that do not serve a lawful purpose. These are examples, not automatic rules. Their significance depends on the statute, facts, and jurisdiction.
Proximity and other common-law approaches
Some jurisdictions use tests associated with common law, such as whether the defendant came dangerously close to completing the crime or whether the conduct had moved beyond preparation into a direct effort. Different courts phrase and apply these tests in different ways. A test focused on closeness to completion may require more advanced conduct than a substantial-step test.
Courts may also consider whether the defendant’s conduct would have resulted in the crime if no one had interrupted it, or whether an important step remained. These considerations are not necessarily separate elements everywhere. They help explain why similar behavior can be treated differently under different legal rules.
Examples: Preparation Versus Attempt
The boundary between preparation and attempt depends on the crime, evidence, and jurisdiction. The examples below are general illustrations, not legal conclusions about any particular case.
| Conduct | Possible legal significance |
|---|---|
| Thinking about a robbery | A thought alone is generally not an attempt because no outward act has occurred. |
| Discussing a plan or buying ordinary supplies | May be preparation; the conduct may not show that the person has begun carrying out the target crime. |
| Traveling to a specific location with equipment and a detailed plan | May provide evidence of intent and movement toward the offense, but whether it is enough varies. |
| Trying to open a locked door to enter and steal property | May support an attempted-burglary charge, depending on the required intent and local law. |
| Firing at a person but missing | May support attempted murder if the evidence establishes the required intent and other elements. |
| Trying to take property but being stopped before obtaining it | May support attempted theft or robbery, depending on the conduct and target offense. |
These examples also show why the same act can have different meanings. Carrying a crowbar is not inherently criminal. Carrying it while trying to pry open a specific home, combined with evidence of an intent to steal, presents a different set of facts.
When the Crime Fails or Is Impossible
An attempt can still be charged when the intended crime fails because of an interruption, a mistake, or an unexpected obstacle. A person who is stopped by security before reaching the intended target may have taken enough steps under the local test. Whether the conduct qualifies remains a question of law and fact.
Attempt law also addresses factual impossibility. This generally refers to a situation where the person intends a crime but a fact unknown to the person makes success impossible—for example, trying to steal from a pocket that turns out to be empty. In many jurisdictions, factual impossibility is not, by itself, a defense to attempt.
Legal impossibility is different. It generally refers to conduct that the person believes is criminal but that would not actually constitute a crime under the law. The distinction can be difficult, and jurisdictions may describe or apply it differently. A lawyer must examine the precise conduct and the relevant statute rather than rely on the label alone.
Abandonment and Renunciation
Some people stop before completing a planned crime. Whether stopping provides a defense depends on the jurisdiction and timing. Under the Model Penal Code, a defense may apply when the defendant voluntarily and completely renounces the criminal purpose. Renunciation generally cannot be based only on a temporary postponement, a decision to commit the crime another time, or a change of plan prompted by an increased chance of being caught.
Many states have different rules, and some do not recognize a general abandonment defense once an attempt is complete. A person’s reason for stopping can therefore matter. A voluntary decision to abandon a plan may be treated differently from stopping because police arrived, the intended target disappeared, or the plan became too difficult.
How Attempt Differs From Other Crimes
Attempt versus preparation
Preparation consists of getting ready to commit an offense. Attempt generally requires a step closer to execution. The boundary is not universal: a substantial step under one jurisdiction’s statute may be considered preparation under another jurisdiction’s test.
Attempt versus solicitation
Solicitation generally involves asking, encouraging, or commanding another person to commit a crime. A person can potentially be charged with solicitation even if the other person refuses. Attempt focuses on the defendant’s own conduct toward completing the target crime, although a case may involve more than one charge.
Attempt versus conspiracy
Conspiracy generally involves an agreement between two or more people to commit a crime, and many laws require an additional act to advance the agreement. Attempt does not necessarily require another participant or an agreement. One course of conduct can potentially support both attempt and conspiracy charges, subject to rules against improper multiple punishment and other limits.
Penalties for Attempted Crimes
Penalties depend on state or federal law, the target offense, the defendant’s record, and case-specific factors. Attempt is often punished less severely than the completed crime, but that is not universal. Some statutes set a separate penalty for attempt; others tie the punishment to the target offense or create exceptions for particular crimes.
As one federal example, 18 U.S.C. § 1113 provides penalties for attempted murder or manslaughter within the special maritime and territorial jurisdiction of the United States. This illustrates why the specific statute matters: federal penalties may differ from state penalties, and a federal statute’s scope is limited to the circumstances it covers.
An attempt conviction can also have consequences beyond a sentence, including probation conditions, restitution where authorized, and effects on future criminal proceedings. The actual outcome depends on the charge, applicable sentencing rules, plea or trial results, and the individual facts.
What Evidence May Matter in an Attempt Case
Evidence may include messages, recorded conversations, surveillance video, witness accounts, physical objects, location data, and the defendant’s actions before and after the alleged offense. Prosecutors may use such evidence to argue that the defendant had the required intent and took a substantial step. The defense may challenge the reliability, meaning, or legality of that evidence.
Important questions can include whether the evidence establishes intent to commit the specific target crime, whether the defendant’s conduct went beyond preparation, and whether the government can prove each element beyond a reasonable doubt. In some cases, the parties may dispute whether the conduct was a genuine attempt, a misunderstanding, or lawful behavior interpreted without sufficient context.
Why the Governing Law Matters
There is no single attempt rule that resolves every U.S. case. State statutes, federal statutes, and court decisions can define the act requirement, defenses, and penalties differently. Even the same conduct may be assessed differently depending on the alleged crime and where the case is brought.
For general legal reference, the Cornell Legal Information Institute’s overview of attempt explains the basic concept, while the U.S. Code provides federal statutory text. The American Law Institute’s Model Penal Code is an influential model, but it is not a substitute for checking the law that applies in a specific jurisdiction.
In short, criminal attempt usually requires both an intent to commit a crime and conduct that has moved beyond mere preparation. The precise threshold, available defenses, and potential sentence depend on the target offense and the law governing the case. General information cannot determine whether particular conduct meets those legal requirements.