Mitigation for Failed Attempts

Joel Feinberg once noted, “Every bona fide philosopher of law tries his hand at least once at the ancient problem of punishing failed attempts“ (37 Arizona Law Review 117 [1995]). While this is certainly true of Anglo-Americans, contempo­rary German jurists have remained surprisingly silent on the subject. In particular, the effects of failure on sentencing decisions have received little to no attention from a normative perspective. Given that the German Criminal Code stipulated mandatory mitigation until 1939 and given that it was a National Socialist law that made mitigation optional, this seems even more remarkable. The only notable challenge to date was advanced by ex­treme subjectivists in the 1970s who even sought to introduce equal punishment for attempted and completed crimes. Although a few scholars have recently pointed out similarities to the moral luck debate in legal philosophy, the vast majority of the relevant Anglo-American literature has yet to be explored in the German literature. This research project aims to fill this void. It compares criminal attempts and completed crimes from a consequen­tial­ist, retrib­utivist, and – most importantly – an expressivist point of view in order to evaluate the need for reform. In so doing, it touches on a variety of questions at the core of criminal law theory, such as the essence of wrongful­ness and the limits of responsibility.