A criminal attempt is an unfinished crime: someone intended to commit a specific offense, took real action toward carrying it out, and failed to complete it for some reason. The law punishes the attempt itself because the person has already shown both the will and the conduct to cause harm. Attempt belongs to a category of offenses called “inchoate” crimes, meaning crimes that are incomplete, and the penalties often match or come close to those for the finished offense.
The Two Elements a Prosecutor Must Prove
An attempt charge rests on two things: specific intent to commit the target crime, and a substantial step toward completing it.
Specific intent is a higher bar than what many other criminal charges demand. The person has to have actually planned to commit the particular offense. Someone who fires a gun recklessly into a crowd may be guilty of assault, but an attempted murder charge requires proof that the shooter intended to kill a specific person or people. Reckless or careless conduct, however dangerous, is not attempt. The intent must line up exactly with the crime that was supposed to happen.1Congressional Research Service. Attempt: An Overview of Federal Criminal Law
The second element is an overt act that goes beyond mere preparation. Thinking about a crime, researching how to do it, or buying supplies that have lawful uses generally doesn’t count. The act has to be far enough along that it objectively confirms what the person was trying to do. Walking into a bank wearing a mask with a demand note in hand is a substantial step toward robbery. Buying the mask a week earlier isn’t.2Congressional Research Service. Attempt: An Abridged Overview of Federal Criminal Law
Where Preparation Ends and Attempt Begins
This line is the most litigated question in attempt law, and courts don’t all draw it the same way. Two tests have emerged, and which one applies can decide whether the same conduct is a crime.
The Dangerous Proximity Test
Under the older common-law approach, courts ask how close the person came to actually completing the crime. If significant steps still remained, the conduct may be treated as preparation. A person who drives to a bank, parks, and puts on a mask is dangerously close. A person who draws a map of the bank’s interior and writes a demand note at home probably isn’t close enough.
The Substantial Step Test
Most states and the federal courts follow a version of the Model Penal Code approach, which looks at how far the person moved beyond innocent behavior rather than how close they got to the finish line. Conduct qualifies when it “strongly corroborates” the person’s criminal purpose. Examples recognized under this test include lying in wait, following an intended victim, scouting the location, unlawfully entering a building where the crime is planned, and possessing materials designed for criminal use with no lawful purpose.1Congressional Research Service. Attempt: An Overview of Federal Criminal Law
The practical difference matters. Someone who scouts a bank and assembles tools might still be in preparation under the dangerous proximity test. Under the substantial step test, the same conduct can support an attempt charge because it strongly confirms criminal intent.3United States Court of Appeals for the Sixth Circuit. Pattern Criminal Jury Instructions – Chapter 5.00: Attempts
Courts also weigh the seriousness of the planned crime. The more dangerous the intended offense, the less progress toward completion a prosecutor needs to show. Conduct that would support an attempt charge for a planned mass shooting may not be enough for an attempted theft.2Congressional Research Service. Attempt: An Abridged Overview of Federal Criminal Law
A few concrete comparisons help:
- Preparation: buying a ski mask and a crowbar from a hardware store. Both have lawful uses.
- Attempt: using that crowbar to pry open a window at a home in the middle of the night.
- Preparation: researching how a jewelry store’s security cameras work.
- Attempt: disabling those cameras and approaching the display cases after hours.
When the Crime Couldn’t Actually Be Completed
Sometimes a person does everything they think is needed to commit a crime, but the crime physically couldn’t happen. Whether that matters depends on the kind of impossibility.
Factual impossibility means the crime failed because of a circumstance the person didn’t know about. A pickpocket reaches into a coat pocket intending to steal a wallet, but the pocket is empty. Courts overwhelmingly hold that factual impossibility is not a defense. The person had the intent and took the action; the failure was essentially bad luck from the criminal’s perspective.
Legal impossibility is different. It arises when what the person actually did wasn’t a crime at all under the law, even though they believed it was. Someone who buys goods at a flea market believing they’re stolen, when the items were never actually stolen, hasn’t broken a law receiving legally obtained goods aren’t prohibited. Legal impossibility can be a valid defense, though some jurisdictions have moved toward eliminating it, particularly when the defendant’s conduct clearly showed criminal purpose.
Does Backing Out Help? The Abandonment Defense
In some jurisdictions, a person who voluntarily gives up a criminal plan before completing it has a defense to attempt. This is called voluntary abandonment or renunciation. Its availability varies sharply by jurisdiction.
The Model Penal Code recognizes renunciation as an affirmative defense when the person gave up completely and voluntarily. Both conditions must be met. Voluntary means a genuine change of heart, not a reaction to the crime becoming harder, riskier, or more likely to end in arrest. Police sirens or a security guard showing up don’t make an abandonment voluntary. Complete means the person permanently gave up the criminal goal, not just postponed it or switched targets.
Here’s the critical point for anyone facing a federal charge: federal courts do not recognize voluntary abandonment as a defense to attempt. The Sixth Circuit has held that “withdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime.”1Congressional Research Service. Attempt: An Overview of Federal Criminal Law Many states that adopted the Model Penal Code framework do recognize the defense, but it’s far from universal. Whether it helps depends entirely on where the case is prosecuted.
How Attempt Differs From Conspiracy and Solicitation
Attempt is one of three inchoate crimes. The others are conspiracy and solicitation, and the differences matter when charging decisions are made.
Conspiracy requires an agreement between two or more people to commit a crime. Attempt needs only one person. Conspiracy also demands less progress toward the crime itself; in some jurisdictions, the agreement alone is enough, while attempt always requires a substantial step past planning.1Congressional Research Service. Attempt: An Overview of Federal Criminal Law
Solicitation happens when a person encourages, requests, or commands someone else to commit a crime. Under federal law, solicitation is complete the moment the request is made with the required intent, even if the other person refuses. The federal solicitation statute at 18 U.S.C. § 373 allows a renunciation defense if the person backs off before the target crime happens, which federal attempt law does not.1Congressional Research Service. Attempt: An Overview of Federal Criminal Law
One overlap worth knowing: a person can be convicted of both conspiracy and attempt for the same underlying crime, because the elements differ. A person cannot be convicted of both attempt and the completed crime, because the attempt merges into the finished offense.
Penalties for Criminal Attempt
Attempt convictions are often more serious than people expect. There’s no general rule that attempted crimes are treated lightly.
In the federal system, most attempt statutes set the maximum penalty at the same level as the completed crime. Someone convicted of attempted fraud under 18 U.S.C. § 1349 faces the same punishment as someone who actually carried out the fraud.4Office of the Law Revision Counsel. 18 USC 1349 – Attempt and Conspiracy Federal sentencing guidelines allow a modest reduction (typically three offense levels) when the defendant hadn’t yet completed all the acts they believed were necessary, but that reduction doesn’t apply to terrorism, drug trafficking, and certain other categories.1Congressional Research Service. Attempt: An Overview of Federal Criminal Law
State approaches split. Some set the attempt penalty at the same level as the completed crime. Others reduce it, usually by dropping the offense one or two classifications or by capping the sentence at half the maximum for the finished offense. Attempted murder is frequently an exception, carrying either the same penalty as murder or a specifically designated high sentence even where other attempts are reduced.1Congressional Research Service. Attempt: An Overview of Federal Criminal Law
Failing to complete a crime does not mean facing a lesser charge. In the federal system and many states, trying carries the same sentence as succeeding.