What constitutes an attempted crime?

This post is meant only as an overview of the subject of criminal attempt, is not a comprehensive examination of the topic. It does not, for example, address issues such as the question of impossibility as a defense against a charge of attempted criminal activity. Anyone facing an accusation of attempting to commit a crime should retain legal defense counsel experienced with criminal defense cases without delay.

“No harm, no foul” is an expression that is alien to the field of criminal law when it comes to crimes that for some reason do not reach full fruition. Anyone who sets out to commit a criminal act, but fails to fully realize it, may still be subject to prosecution for an attempted crime.

For the prosecution to successfully convict a person of an attempted crime under Kentucky law, it must prove three things:

• That the accused had the specific intent to commit the crime in question;
• That he took at least some action to carry out the crime; and
• That he failed to actually commit the crime.

Intent is important to distinguish an attempted criminal act from an act of negligence or other mistake. If, for example you hit a pedestrian with your car accidentally but did not intend to run that person over, then you did not have the intent to commit vehicular assault.

Similarly, the action taken toward the commission of the crime must be one that would be readily linked to the crime itself and not be merely “preparatory”  in nature. So buying a gun in contemplation of murdering someone is not sufficient to serve as the basis for a charge of attempted murder,  but taking that weapon with you and lying in wait for the intended victim would much more likely suffice.

The failure to actually commit the crime is a necessary element in that it is the distinguishing feature of an attempt.  Logically, if you successfully carried out the intended crime then you would be subject to prosecution for the crime itself and not for the attempt.

Punishments for attempted crimes are different than those for completed crimes, and depend on what the sentence would be had the crime been committed. Kentucky law generally makes attempt punishable to a degree one step below the actual crime (for example, a Class A felony for a committed crime would be a Class B felony for an attempt conviction).