# Why the distinction between murder and attempted murder? **URL:** \ **Category:** Factual Questions\ **Created:** [August 3, 2005, 9:21pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480 "2005-08-03T21:21:37Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Absolute](https://avatars.discourse-cdn.com/v4/letter/a/b2d939/32.png) [@Absolute](https://boards.straightdope.com/u/Absolute)\ **Post date:** [August 4, 2005, 6:01pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/41 "2005-08-04T18:01:14Z")
> [@Balthisar](#): > > Negligence isn’t illegal. So instead of having Sears fire the guy for leaving the floors wet, we make it a legal issue? Okay, I didn’t know negligence wasn’t illegal. I was sure I had heard people charged with “Gross Negligence”, but whatever. I was just addressing the situation that **continuity eror** brought up. We don’t have to make it a legal issue. That’s an issue for the legislature. What I’m saying is that if we punish Joe Janitor for leaving a slippery floor that someone fell and died on, we should punish everyone leaving a slippery floor the same way. If we don’t punish everyone leaving a slippery floor, we shouldn’t punish Joe Janitor. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [August 4, 2005, 9:22pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/42 "2005-08-04T21:22:20Z")
> [@Balthisar](#): > > ? > You could apply this to speeding. Going 5mph over isn’t a danger to yourself or anyone else if there’s no one else on the road (and conditions are good, blah blah blah). Attempted manslaughter? The term you are searching for is Reckless Endangerment. It is impossible, by definition, to “attempt” manslaughter. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [August 5, 2005, 12:23am UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/43 "2005-08-05T00:23:16Z")
> [@Blalron](#): > > The term you are searching for is Reckless Endangerment. It is impossible, by definition, to “attempt” manslaughter. And to **Rysto** : that was the very point I was trying to make. ---
**Author:** ![Gary\_Robson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gary_robson/32/3448_2.png) [@Gary\_Robson](https://boards.straightdope.com/u/Gary_Robson)\ **Post date:** [August 5, 2005, 12:26am UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/44 "2005-08-05T00:26:44Z")
> [@Balthisar](#): > > So if I understood this thread correctly, we’re saying that (1) we should eliminate the crime and charge of “murder” and then (2) _only_ have attempted murder. This really does make a lot of logical sense. [marginally-on-point hijack] It’s like open container laws, which are being implemented in Montana for the first time this year. Under the new laws, if I bring a bottle of wine to your house, and we drink one glass each with dinner, I can’t take the other half home in my Jeep (no trunk and I can reach the whole vehicle from the driver’s seat). It will be legal to drink 2 beers at the bar and drive home (at my size, that puts my BAC at about 0.06%), but illegal to buy a single beer and drink it on the way home (giving me a BAC of 0.03%). The only rationale I’ve seen for open container laws is that it makes it easier to commit the crime of driving under the influence. Applying that to murder laws, we can just take this a step farther. Drunk people are more likely to get angry and kill someone, right? Therefore, anyone who gets drunk could be charged with attempted murder. [/marginally-on-point hijack] Back to the point, murder laws deal with what people try to do and succeed. Attempted murder laws deal with what people try to do and fail. Manslaughter laws deal with what people do that they weren’t trying to do. Conspiracy laws deal with what people plan to do even if they never actually do it (or even try to do it). ---
**Author:** ![Absolute](https://avatars.discourse-cdn.com/v4/letter/a/b2d939/32.png) [@Absolute](https://boards.straightdope.com/u/Absolute)\ **Post date:** [August 5, 2005, 10:49am UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/45 "2005-08-05T10:49:21Z")
> [@InvisibleWombat](#): > > [marginally-on-point hijack] > Applying that to murder laws, we can just take this a step farther. Drunk people are more likely to get angry and kill someone, right? Therefore, anyone who gets drunk could be charged with attempted murder. No, that’s not what I’m saying at all. I’m not saying we should make it possible to charge someone for the most severe thing that might possibly result from their actions. I’m saying that the punishment for their action should not depend on what the results were. Now, if you run a stop sign and kill someone, you’re charged with manslaughter. But you haven’t done anything more wrong than the thousands of people each day who run a stop sign, avoid all obstacles, and get away with a traffic ticket. I’m not saying that every person who runs a stop sign should be charged with manslaughter. I’m saying that every person who runs a stop sign should be charged solely with running a stop sign, **regardless of what the consequences of running it were**. It doesn’t matter if they killed three people or ran over a caterpillar, they would be punished identically. And the punishment for running the sign would take into account all possible consequences of the action, properly weighted for their probability of occurring. Now, with stop sign violations, we have thousands of people in the US committing the same crime every day, but all the blame, all the punishment is directed on the few unlucky individuals who did nothing differently from anyone else, but got into an accident when crossing the intersection. ---
**Author:** ![zev\_steinhardt](https://avatars.discourse-cdn.com/v4/letter/z/97f17d/32.png) [@zev\_steinhardt](https://boards.straightdope.com/u/zev_steinhardt)\ **Post date:** [August 5, 2005, 2:06pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/46 "2005-08-05T14:06:44Z")
I actually [asked this very question](http://boards.straightdope.com/sdmb/showthread.php?t=48564) a while back. Zev Steinhardt ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [August 5, 2005, 3:10pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/47 "2005-08-05T15:10:48Z")
> [@Bricker](#): > > Here’s a fun legal quiz… > > Let’s say Joe misses the neighbor, but the shot travels into the neighbor’s back yard and kills the gardener. > > You’re all set to charge Joe with murder, when he points out that he had no intent whatsoever to kill the gardener. It was an accident! And since he had no intent to kill the gardener, but the gardener died as the result of an accident, manslaughter is the right charge, says he. > > Well? This is a classic bar review question, isn’t it? The intent is transferable. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [August 5, 2005, 4:23pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/48 "2005-08-05T16:23:16Z")
I’ve heard the argument that that if you have the intent, without the act, it’s attempted murder,and when you have the act, without the intent, it’s manslaughter - and that it’s logically consistent to have both be a seperate crime from murder (intent, and act). I’m sure whoever stated this when I read it put it a lot more eloquently. ---
**Author:** ![Tabby\_Cat](https://avatars.discourse-cdn.com/v4/letter/t/6a8cbe/32.png) [@Tabby\_Cat](https://boards.straightdope.com/u/Tabby_Cat)\ **Post date:** [August 5, 2005, 5:01pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/49 "2005-08-05T17:01:25Z")
> [@acsenray](#): > > This is a classic bar review question, isn’t it? The intent is transferable. I believe it’s transfer of malice, or somesuch. If you intend to commit a crime, but the victim is accidentally changed, it doesn’t make a difference. Another problem, however, would be if you intended to smash a glass window with a brick, but instead end up accidentally smashing in a bystander’s head. Is there a crime? Of course, none of this is ontopic. 😛 In the English system, attempted crimes have the same penalties as the crime itself. Of course, this means that the judge gets some leeway in deciding, and may well take the fact that the crime was not completed as a mitigating factor in sentencing… ---
**Author:** ![Annie-Xmas](https://avatars.discourse-cdn.com/v4/letter/a/ecc23a/32.png) [@Annie-Xmas](https://boards.straightdope.com/u/Annie-Xmas)\ **Post date:** [August 5, 2005, 8:30pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/50 "2005-08-05T20:30:19Z")
Anyone else remember the case of Charles Rothenberg, the father who threw kerosene on his 6 year old son David and set him on fire, causing 3rd degree burns on 90% of his body? Because the child did not die, Rothenberg got the maximum of 7 years in prison! Some laws need to be changed. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 5, 2005, 9:18pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/51 "2005-08-05T21:18:30Z")
> [@acsenray](#): > > This is a classic bar review question, isn’t it? The intent is transferable. Bingo! The doctrine of transferred intent is your friend here, and lets you charge first degree murder instead of second degree felony murder. ---
**Author:** ![Reloy3](https://avatars.discourse-cdn.com/v4/letter/r/c68b51/32.png) [@Reloy3](https://boards.straightdope.com/u/Reloy3)\ **Post date:** [August 5, 2005, 9:33pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/52 "2005-08-05T21:33:11Z")
Just to echo what has been posted by a few before - in my state, and in most states I’m aware of, an attempted felony - any felony - carries the same penalty as if the attempt were successful. Also, I was a little late, but I was totally going to nail the transfered intent thing. honest ---
**Author:** ![pinkfreud](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pinkfreud/32/17603_2.png) [@pinkfreud](https://boards.straightdope.com/u/pinkfreud)\ **Post date:** [August 5, 2005, 9:48pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/53 "2005-08-05T21:48:56Z")
There is a case pending in my town in which a gang member shot at a member of a rival gang. The bullet missed its intended target and hit an infant in a nearby car, killing the child. As one might expect, the perp and his attorney are calling this “a tragic accident.” ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [August 6, 2005, 3:18pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/54 "2005-08-06T15:18:52Z")
> [@pinkfreud](#): > > There is a case pending in my town in which a gang member shot at a member of a rival gang. The bullet missed its intended target and hit an infant in a nearby car, killing the child. As one might expect, the perp and his attorney are calling this “a tragic accident.” There’s a justifiable difference here according to public opinion. Who cares if a gang banger kills another rotten gang banger? He probably deserved it anyway, and the killer will eventually buy it, too, when someone else fullfills the vendetta. But killing a baby? That’s a tragedy. Gang bangers aren’t sociopaths; they don’t want any part in that. So of course it was a tragic accident. Uh, keep in mind that public opinion isn’t necessarily my opinion. ---
**Author:** ![Fuel](https://avatars.discourse-cdn.com/v4/letter/f/df705f/32.png) [@Fuel](https://boards.straightdope.com/u/Fuel)\ **Post date:** [August 6, 2005, 5:12pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/55 "2005-08-06T17:12:30Z")
didn’t read the replies but the simple logical answer is that it would undoubtedly be argued that he only meant to scare the guy instead of put a slug in him. In fact, a lot can be argued, such as at the last second, his subconscious mind would not allow his body to do such a morbid deed, so he missed “on purpose”, chickened out and put his gun away, shaken up by what he almost did. Good question, but it has some obvious answers if you think about it. I did a horrible job of explaining, but you get the idea hopefully. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [August 6, 2005, 5:44pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/56 "2005-08-06T17:44:13Z")
> [@InvisibleWombat](#): > > [marginally-on-point hijack] > It’s like open container laws, which are being implemented in Montana for the first time this year. Under the new laws, if I bring a bottle of wine to your house, and we drink one glass each with dinner, I can’t take the other half home in my Jeep (no trunk and I can reach the whole vehicle from the driver’s seat). It will be legal to drink 2 beers at the bar and drive home (at my size, that puts my BAC at about 0.06%), but illegal to buy a single beer and drink it on the way home (giving me a BAC of 0.03%). The only rationale I’ve seen for open container laws is that it makes it easier to commit the crime of driving under the influence. > > [/marginally-on-point hijack] Continuing the marginal hijack (with soon will be some kind of attempted thought crime punishable by the mods) open container laws obviously aren’t designed to make committing the traffic offense of driving under the influence easier; rather, they are designed to make it easier to convict the driving while drinking driver of something! If you’re drinking while driving, and not weaving or speeding and have a BAC of .03, the only thing the cops can get you on is the open container offense. If that’s the best charge the cops can hang on you, they’ll take what they can get. ---
**Author:** ![Balthisar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/balthisar/32/2825_2.png) [@Balthisar](https://boards.straightdope.com/u/Balthisar)\ **Post date:** [August 6, 2005, 7:12pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/57 "2005-08-06T19:12:53Z")
> [@zamboniracer](#): > > If you’re drinking while driving, and not weaving or speeding and have a BAC of .03, the only thing the cops can get you on is the open container offense. If that’s the best charge the cops can hang on you, they’ll take what they can get. Because of course we all know that cops don’t already have enough to do, we have to give them something else! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 6, 2005, 7:33pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/58 "2005-08-06T19:33:23Z")
> [@Absolute](#): > > But the purpose of the justice system is not revenge (is it?). We punish people under the (perhaps deluded) idea that they will learn from their actions and be rehabilitated. And a failed murderer needs just as much rehabiliation and learning as a successful murderer. As I said, all that distinguishes them is luck - they share whatever mental deficiency led them both to attempt murder in the first place. The fact that one of them did not actually succeed seems totally irrelevant. Actually, several theories get combined when states justify punishment for crime: 1. Rehabilitation–This one is problematic as a justification. If our sole goal is rehabilitation, certainly [this](http://www.cnn.com/2005/LAW/06/21/mississippi.killings/) guy seems unlikely to reoffend. Why punish him at all? Moreover, the rehabilitation theory seems to imply that there should be no minimun or maximum sentences. Criminals could be sent for rehabilitation, and released when the state decides they are no longer a threat to society. Kinda like Brat Camp. 😉 2. Deterrence. Another reason frequently offered for punishing criminals is that punishing them will deter future crime. There are two versions of this theory. One (weak deterrence) holds that the punishment will deter the criminal from future crime. The other (strong deterrence) holds that the example of this criminal being punished will deter others from future crimes. There are many problems with these theories. For example, if it can be scientifically established that incarcerating criminals for long periods of time increases the probability that they will reoffend, then the deterrence theory does not justify punishing them in that way. As for strong deterrence, this theory proves too much. If we merely seek to deter others from committing crimes, why limit punishment to the guilty? And why limit it to punishment that is not cruel or unusual. Wouldn’t these be the best deterrents? 3. Prevention/Incapacitation. This theory holds that punishment is justified because it prevents future crime in a more direct way–by limiting the criminals’ access to potential targets. If the criminal is in prison, the theory goes, the criminal can’t commit crimes. But this theory proves too much, too. If incapacitation is our justification, why not make all penalties for life–or death? Why let criminals back out, when they are likely to reoffend? [Incapacitation and Just Deserts as Motives for Punishment by Paul H. Robinson, Kevin M. Carlsmith, John M. Darley :: SSRN](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=678963) 4. Just deserts. Based on the work of Immanuel Kant, the just deserts theory justifies punishment, not based on benefits or costs to anyone but the criminal. We punish them because they deserve to be punished. Many of our sentencing guidelines seem based on this theory: They look at the quality of the crime and the quality of the criminal, and try to mete out punishment based on how wicked the act and actor are. [Incapacitation and Just Deserts as Motives for Punishment by Paul H. Robinson, Kevin M. Carlsmith, John M. Darley :: SSRN](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=678963) 5. Retribution. The oldest theory of all: An eye for an eye. While this theory is morally problematic to many, it is still around. Judges and legislators talk about it, especially when they are seeking office. Some countries still base their punishments on it (cutting off the hand of a thief). Again, this theory proves too much, at least in this country. It suggests that simple execution could be too easy a punishment for those who kill multiple people, or torture. Yet the family of the victime gets to make an impact statement at most sentencing hearings. This only makes sense if we consider retribution a part of the equation. 6. Other theories. A philospher named Quinn suggested a theory based on delayed self-defense: If you tried to kill me, I’d certainly be justified in shooting you first, Quinn suggests. And if for some reason, my gun went off after you killed me, few people would feel sorry for you, or moral outrage at me. So what if I built a robot that defended me, but the robot was a little slow on the draw. Quinn suggested that our criminal justice system is a lot like that robot. Utlimately, our system runs on a combination of theories, then. And remember, too, that there is a lot of variation among jurisdictions. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [August 6, 2005, 8:15pm UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/59 "2005-08-06T20:15:16Z")
What we have identified here is the problem of [inchoate crime](http://faculty.ncwc.edu/toconnor/293/293lect05.htm) . Some have suggested that we don’t punish thoughts and that is probably true. OTOH, we come pretty close in some cases. We punish attempts, conspiracies, and solicitations because without these, we’d have less crimes. They were originally punished as misdemeanors, but now we take them more seriously. Why? Because, as others, have indicated, we don’t think failure is a good reason to excuse bad behavior. [http://www.daviddfriedman.com/Laws\_Order\_draft/laws\_order\_ch\_7.htm](http://www.daviddfriedman.com/Laws_Order_draft/laws_order_ch_7.htm) [http://www.daviddfriedman.com/Academic/Impossibility\_attempt/Impossibility\_attempt.html](http://www.daviddfriedman.com/Academic/Impossibility_attempt/Impossibility_attempt.html) Punishing incomplete crimes creates some conundrums. For example, what about an impossible attempt? [http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/SCT/20010727\_S116967(57)\_Thousand.Jul27.PDF](http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/SCT/20010727_S116967(57)_Thousand.Jul27.PDF) (pdf) [http://www.cps.gov.uk/legal/section12/chapter\_h.html](http://www.cps.gov.uk/legal/section12/chapter_h.html). And what about attempts to stack inchoate offenses–attempt to conspire, for example? _See_, Ira P. Robbins, Double Inchoate Crimes, 26 Harv. J. on Legis. 1 (1989); [http://www.armfor.uscourts.gov/opinions/2001Term/01-0077.htm](http://www.armfor.uscourts.gov/opinions/2001Term/01-0077.htm) (attempted conspiracy to commit a crime under the Uniform Code of Military Justice is a military offense under Article 80, UCMJ). Also, as others have pointed out, the fact that the crime has a different name does not require that the punishments be different. For instance, here is Michigan’s attempted murder statute: > [@](#): > > 750.91 Attempt to murder. > > Sec. 91. > > Attempt to murder by poisoning, etc.—Any person who shall attempt to commit the crime of murder by poisoning, drowning, or strangling another person, or by any means not constituting the crime of assault with intent to murder, shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years. [http://www.legislature.mi.gov/mileg.asp?page=getObject&objName=mcl-750-91](http://www.legislature.mi.gov/mileg.asp?page=getObject&objName=mcl-750-91) Michigan does not have the death penalty. The actual sentence that an offender receives will be determined by a cluster of factors, described here: [http://courts.michigan.gov/mji/resources/sentencing-guidelines/2005\_PDFs/person2005.pdf](http://courts.michigan.gov/mji/resources/sentencing-guidelines/2005_PDFs/person2005.pdf) (pdf) and here: [http://courts.michigan.gov/mji/resources/sentencing-guidelines/sg.htm](http://courts.michigan.gov/mji/resources/sentencing-guidelines/sg.htm) Other jurisdictions have other rules, of course. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [August 7, 2005, 6:36am UTC](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480/60 "2005-08-07T06:36:38Z")
> [@zamboniracer](#): > > If you’re drinking while driving, and not weaving or speeding and have a BAC of .03, the only thing the cops can get you on is the open container offense. If that’s the best charge the cops can hang on you, they’ll take what they can get. So in other words, if you’re not legally drunk, and you’re not driving unsafely, they still need to bust you on something, because apparently some crime is being commited? [Previous page](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480.md?page=2) [Next page](https://boards.straightdope.com/t/why-the-distinction-between-murder-and-attempted-murder/315480.md?page=4)