Punishments for 'Attempted' crimes

[Sam Spade]

A point or two:

The point at which the actus reus is formed for intent in attempts varies, but it is usually at a point in the planning of the commission of a crime called and defined the "substantial step", or some other test depending on the jurisdiction.  Establishing where that substantial step is a part of statute and establishing whether it has been reached is a function of circumstantial evidence in the case.  If a guy shoots at someone and misses, intent can usually be inferred through evidence presented (fill-in-your-own-evidence).

Drunk driving is a bad example of an attempt crime for a kind-of-obvious reason.  Attempt crimes require an "intentional" mens rea. 

Vehicular homicide only requires a "reckless" or "criminally negligent" mens rea; henceforth, you can't intentionally commit a reckless or negligent crime, so no "attempt" to commit these crimes can be made either. 

Furthermore, a reckless crime cannot be negated by voluntary intoxication.  Intent to commit a crime can be negated by voluntary intoxication, but it lowers your crime down to the reckless level.  The only intentional act that counts in the law is your consumption of alcohol.

[Sam Spade]

Gustav:

You are presuming that I am quibling with your opinion of how "attempt" crimes should be punished.  I have not said anything on this subject.  Actually, at common law, attempt crimes were punished as misdemeanors, so your position has support in Anglo-American criminal history, not to mention for a number of policy.

What I am quibling with is your example of drunk drivers.  If there are two persons who go into a bar and get themselves voluntary intoxicated, they are both clearly doing each action intentionally.  Similarly, if each gets into a vehicle and starts driving, each one is pursuing the act intentionally, if under the influence of intoxication.

However, if one driver strikes a little girl and the other one doesn't, you cannot hold one driver for vehicular homicide or manslughter and the other for attempt.  Attempts, by their nature, require "intent" and there is no evidence that either driver intended to run over that particular little girl.  To hold that one could "intend" what is inherently a "reckless" act (driving while intoxicated) in this situation would constitute a gross miscarriage of justice.  Besides, logically, it is just facially ludicrous to make such an assertion.  You can't intend to do a reckless act.

[Sam Spade]

You're still not getting my point, though keeping a whole lot of arguments up at the same time is difficult.  I might not be making it clear enough.

First, in your example, we need to get the term "intent" off the board.  It is not present in vehicular homicide, nor any crime where voluntary intoxication is an issue.  It only confuses, it does not help.

Because "intent" is off the table, any "attempt" at a crime cannot occur, because an "attempt" requires an "intentional" mens rea.  Either the crime happens or it doesn't in that case.

Under modern standards of mens rea, three types exist:  "knowingly", "recklessly" or "criminally negligent".  Vehicular homicide is normally considered "reckless" under statute, because driving while drunk is considered dangerous to society. 

One could not knowingly commit vehicular homicide, unless one "knew" one's actions would cause the death of that specific girl, which is highly unlikely.  And then, voluntary intoxication would negate the "knowingly" mens rea.