Document Type

Article

Publication Date

2018

Abstract

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.

Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters.

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Criminal Law Commons

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