It is often the case that a person convicted of attempted murder receives a lesser punishment than if they had been successful in committing the crime. As far as I am aware, there are four main reasons for punishing criminals: 1) deterrence 2) incapacitation 3) rehabilitation 4) retribution.

The fourth reason seems to be the least popular, and if one does subscribe to this as a reason for criminal punishment, then I can see why they would view attempted murder as a lesser crime than murder.

Now as for 1): Since one cannot plan an attempted murder (I mean since succeeding in this would result in no murder at all) the incarceration of attempted murderers is used as a deterrent against people who plan to murder. So I am not sure how one can use the deterrence reason for punishment as a justification for attempted murder being a lesser crime than murder.

For 2): I am not sure that attempted murderers are any less of a threat to society than murderers. I suppose you can argue that murder gets easier with each kill, and so a murderer is actually more dangerous than an attempted murderer, though I am not sure that's true. One might be able to make the argument that in some cases an attempted murderer is actually more dangerous than a murderer, since the murderer might have killed the only person he wanted to kill, whereas the attempted murderer may try to finish the job.

For 3): Perhaps this is where the strongest argument for attempted murder being a lesser crime than murder comes from. All else being equal, it does seem like it would be easier (or at least no harder) to rehabilitate attempted murderers than murderers, in the sense that if one is looking to reintegrate back into society, it seems like it would be easier to do so knowing that you haven't committed such a foul crime. If I tried to do something bad but failed, then I wouldn't feel as bad about having done what I did, and I could move on quicker.

  • 2
    I find it hard to find out what's being asked here. You present your arguments, but the question is kind of missing, or is it something like "am I right?"
    – iphigenie
    Commented Mar 16, 2013 at 11:16
  • 1
    I'm also a little unclear on what the specific question here might be about :) Is there any chance we might be able to persuade you to share a little more about the context and motivations of your problem? What (theories, works) might you be reading about or studying that might have made this an interesting or urgent concern? What have you found out so far? What sort of answer are you looking for?
    – Joseph Weissman
    Commented Mar 18, 2013 at 16:28
  • Something I think has been overlooked: these four main reasons for punishing criminals are not the same factors used to determine the methods of punishment.
    – KnightHawk
    Commented May 30, 2014 at 1:05
  • "one cannot plan an attempted murder" - It is certainly not common, but yes, one can plan an attempted murder. X hires Y to kill Z, but otherwise provides that the murder cannot happen. So Y really intends to murder Z, under the orders of X, but X has planned... an attempted murder. Commented Jul 29, 2016 at 10:26

9 Answers 9


How does one tell if attempted murder is actually an attempt at murder or at something else unless it succeeds? Once you give up perfect knowledge of intent (and perhaps even admit that true intent is either ill-defined or not always known even to the agent), all four points shift more heavily against the murderer and a lot of the philosophical difficulties melt away.

(Better for people to know even stopping themselves at the last minute will be better off for them, so it provides a last-second deterrent; the person may be too inept or squeamish to need incapacitation by incarceration; the person may already be trying to rehabilitate; the actual harm was less so in eye-for-an-eye style the retribution should be less.)

Given ideal conditions (perfect knowledge, etc.) it is a thorny issue indeed, but sometimes being a pragmatist (as judges typically must be) saves you from thorns.

  • Even a last-second subconscious feeling may cause an attempt to fail. We can't judge intent even from perfect knowledge of the attempted murderer's conscious mind. Commented May 29, 2013 at 1:32
  • 3
    Is it not equally likely for a murder to be the result of the perpetrator doing more harm than intended - an assault gone wrong? Intent strikes me as a separate axis from achievement, as demonstrated by the legal distinction between "involuntary manslaughter" and "murder."
    – Annabelle
    Commented Aug 1, 2014 at 4:04
  • 1
    @Annabelle - That's a good point, but I don't think that intent trumps achievement; rather, at least legally, we reserve the most severe punishments for cases where there seem no redeeming features.
    – Rex Kerr
    Commented Aug 1, 2014 at 6:46
  • "How does one tell..." One brings the case in front of the judge, and the judge just tells one.
    – gnasher729
    Commented Jul 30, 2016 at 19:28
  • I think that when you convict someone for attempted murder the intent has been quite clarified within the process. We cannot create our laws thinking "yeah but what if they didn't do what we're convicting them for?"; if we did, we shall not convict anyone.
    – Elvis
    Commented Jun 2 at 0:06

My best guesses:

  1. To prevent perverse incentives: in the heat of the moment you shoot and miss, but if attempted murder and murder have the same penalty, then after the miss, perhaps when you have cooled down and can act more rationally, why not take another shot to get rid of the witness? Answer (given by the legal system, not personal morality): because the penalty for killing is higher, than the penalty you are already facing. So, the lesser penalty prevents the "might as well be hanged for a sheep as a lamb" problem.

  2. If there is no actual death, then there is greater uncertainty about the events that took place - did you really mean to kill someone, et cetera - and so we reduce sentences to account for this doubt.

  3. Crime is considered to incur a debt, with justice being seen as a repayment (hence the phrase: "repaying your debt to society"), and if you did not actually kill someone then you caused, as a matter of fact, regardless of your intent (and any associated cost of societal moral staining), less damage and so there is less debt to be repaid.

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    – J D
    Commented Dec 2, 2020 at 15:14

Should attempted murder be a lesser crime than murder ?

This is a conundrum in ethics theory. This is a particular issue of a more general moral problem. For Kant and others, moral judgement ought not unfairly to depend on factors not under the agent’s control. Reflection on our actual judgements, however, reveals their widespread determination by various kind of luck.

Luck affects morality in four ways. The first is ‘constitutive luck’, luck in the kind of person one is, which depends, at least partially, on factors beyond one’s control such as heredity and environment. The second is ‘circumstantial luck’, luck in the kind of problems and situations one faces. For example, some young Germans who were morally lucky to have left Germany in the early 1930s. Had they stayed, they would have been faced with a terrible moral test which many of them would probably have failed. Thus, according to Nagel, whether or not a person became a Nazi murderer was, to a significant extent, a matter of circumstantial luck. The other two ways luck is believed to influence morality have to do with the causes and effects of actions. If determinism is true, then our very choices are beyond our control, and thus a matter of good or bad luck. The other and last kind of luck, sometimes referred to as ‘resultant luck’, is luck in the outcome of one’s actions and projects. This includes cases of decisions made with uncertainty, as when a political leader decides to go to war knowing full well at the time of the decision that if the venture fails, the decision can never be justified retroactively; and cases as the driver who neglects to check his brakes and is guilty, if no harm ensues, of mere negligence. But if through bad luck the driver kills a child in his path, he is judged and judges himself more harshly, even though his input is the same. The independence of these different kinds of luck from one another makes life difficult for critics of moral luck. To sustain the alleged immunity of morality to luck, they have to show that each and all of them have no effect of morality.

The estimation of moral worth, and notions such as responsibility, justification, and blame, are indeed subject to luck, and hence morality is also threatened by luck. Since every aspect of our moral life results from factors which are beyond our control, there seems to be nothing left for us to be responsible for and the area of genuine agency. We constantly morally evaluate people for things which are not under their control. There aren't principles of choice which would guarantee that if we follow them, we will have no reason to reproach ourselves later, whatever happens.

All physical events are caused and determined by the sum total of all previous events. Given an initial set of conditions external and internal to the mind, only one “choice” or behavior will result. Thus, given any set of actual initial conditions in this world, any person’s “choice” could not have been otherwise. In terms of daily “choices,” most people appear to already accept deterministic principles. We assume that certain events or choices will result in causally determined consequences. Multiple effects or choices to potentially emerge from a single cause or set of causes seem to violate the relationships we observe with all other causal sequences in the universe. It does not seem very plausible that the deterministic, causal relationships that existed in the universe for billions of years would suddenly suspend themselves to accommodate the relatively recent development of the brain’s nerve clusters. How can non determined choices potentially emerge from a single cause or set of causes provide people with any control over their behaviors?

The orthodox view is that those who act immorally are to blame for their actions because they were free to choose otherwise. Since they are to blame, we are then entitled to punish them in proportion to their crime. But is a kid brought up in the ghetto really free to choose? Isn't he just a victim of his environment? Naturalists see no need to accept the way problems were structured by the folk wisdom of our ancestors, a natural explanation of the notion of blame and desert doesn't hinge on how we explain free will.

Presumably the principle on which our social contract works is that legal or social punishments are determined according to some prior notion of moral responsibility. Presumably, people hang on to this idea because they believe that taking a more realistic attitude to the attribution of blame and desert will lead to the collapse of our moral institutions.

Determinism don't say that the level of punishment we administer to defaulters is never determined by the extent they were in control of the events leading up their crimes. On the contrary, such cases are clearly the norm, because an efficient social contract won't call for penalties to be inflicted when the circumstances under which the crime was committed are such that inflicting the penalty won't deter similar deeds. But there are plenty of exceptions, as with the continuing execution of mentally ill criminals in Texas. The paranoid schizophrenic executed someday subscribed to the same folk wisdom as his executioners: “I knew it was a mistake. I have no one to blame but myself.”

If it can be demonstrated that Abel's death at the hand of Cain was accidental by pointing to the immediate cause of the crime, we don't need to follow the practice of our predecessors by holding Cain to blame. But when the causal chain is uncertain, our social contract needs to be ruthless. All of us, for example, are held to be guilty until proved innocent when it comes to paying tax.

The extent of the damage suffered by a victim is often largely outside the criminal's control. For example, a mugger may hit two victims equally hard, but he will only be tried for murder if one of them happens to have an unusually thin skull. Nearer to home, how many of us have escaped imprisonment and ruin as a consequence of negligent driving only because we happen not to have hurt anybody? Therefore the doctrine that the seriousness of a crime is determined by the consequences to the victim also fits the same pattern: when the causal chain is uncertain, our social contract needs to be ruthless.

Our prisons are already full of youngsters from deprived backgrounds whom everyone agrees “never had a chance”. A social contract that doesn't discourage antisocial behavior won't survive, and so deviants have to be punished for the same reason that we quarantine those suffering from dangerous diseases. Quarantine is to be found in the social mechanism traditionally used to control the outbreak of a dangerously infectious disease like scarlet fever. We recognize that being quarantined is unpleasant, but we don't ask whether people got infected by accident or through negligence before temporarily imprisoning them. We isolate them, because the alternative is that the disease will spread, and we don't want healthy people to catch it.


You've provided the answer in your question: in practice the law does (still) include retribution as a consideration, even though many philosophical theories of how the law should work would remove that feature from consideration. This is one aspect of how legal is not identical with moral (or illegal with immoral). Reconciling the retributive and consequentialist bases of law is part of its ongoing evolution.


Punishment for murder is meted out for the action, the deed, of killing someone, not for the intent to do so, demonstrated by the attempt to murder:

Intent to kill is reprehensible, but no physical harm has been inflicted on the intended victim. So morally, the iniquity is less than when the deed has been committed and the intended harm is inflicted on the victim. Therefore attempted murder is a less severe crime.

As a less severe crime, it is moral and just that the punishment for attempted murder be less than murder itself.

  • I must strongly contradict. Being the target of an attempted murder will most likely have a very strong negative effect on you. Even being the target of a death threat is deeply traumatic.
    – gnasher729
    Commented Nov 24, 2014 at 22:33
  • 1
    @gnasher729 - sure, and the answer by far exaggerates the idea that a murder attempt is harmless (it could result in anything between nothing and a permanent disability). But I would say that death is still more harmful than any other consequences that may follow from an attempted murder. Commented Jul 29, 2016 at 10:31
  • @gnasher729 - the answer addresses the question, which is built on a false premise and somewhat dangerous premise, as explained: Murder is an action with a clear physical manifestation and outcome. Intent to murder and its ramifications are highly subjective - must not be judged in the same manner as the act of murder. ( I edited to "physical harm" to assuage your reservations).
    – Vector
    Commented Aug 5, 2016 at 17:17

You ought consult books on Criminal Law Theory. I quote Jonathan Herring's Criminal Law Text Cases & Materials (2022 10th edition), pp. 798-9.

6 The Theory of Criminal Attempts

6.1 Why Do We Punish Attempts?

Although you might at first think it is obvious that the law should punish attempts, further thought reveals that it is not a straightforward issue. After all, normally in an attempt no one has actually been harmed, and yet harm is normally seen as an essential element of an offence. In the following extract, George Fletcher sets out some of the difficulties in approaching this issue: ←3 (p.765)

G. Fletcher, Basic Concepts of Criminal Law (New York: OUP, 1998), 172–4

Historically, the attempt derives from the completed offense. But once attempts came to be recognized as a staple of nineteenth-century criminal prosecutions, theorists began to wonder whether with regard to at least some crimes, the attempt might indeed be the more basic offense. In cases of bringing about harmful consequences—homicide, arson, destruction of property—the actor might do everything in his power to [bring about the] result without succeeding. He might shoot to kill and hit the wall. She might throw a fire bomb with the intent of burning down a house and the bomb turns out to be a dud. He might swing an axe at his enemy and miss. This element of accident in cases of harmful consequences makes one wonder whether the attempt should be regarded as the basic offense and the completed homicide, arson, or battery merely an adventitious after effect of attempting with intent.
          Our ordinary sensibilities tell us that, of course, it is worse to kill than to shoot and miss. The successful killer deserves a greater penalty than the unsuccessful attempter. At least that is what the woman on the street—or the man in the Clapham bus, as the English say, thinks. In law as in basketball, the rule usually is: No harm, no foul. No one with ordinary sensibilities would advocate the death penalty for someone who merely tried to kill. And yet many of the leading theorists of criminal law, at least in the English-speaking world, hold the view that the consummation of an intended offense is merely a matter of chance and therefore not a proper basis for aggravating the penalty designated for the attempt. The basic argument for this position begins with the sensible premise that punishment should be imposed on the basis of blameworthiness or culpability. There follows a more controversial point: The only fair basis for culpability is the actions under one’s control—that is, what can one be sure of bringing about with the extensions of one’s body. This includes basic actions such as speaking, pulling the trigger of a gun, putting poison in coffee, planting a bomb. It does not include the consequences of these actions that depend on intervening forces of nature. It follows, according to the logic of this argument, that these consequences should not be charged to the account of the culpable actor. This is the reasoning that leads so many thoughtful writers to support the view that the attempt—which is supposedly within the control of the actor—should be the primary offense. The basis for punishment should, therefore, be the attempt and not its fortuitous after effects.
          The more traditional way of thinking about crime and responsibility starts with the bringing about of harm and inquires: Who is responsible for this wrong and to what extent? The attempter merely approaches the harm, merely creates a risk of the harm, and therefore should be held liable for a lesser degree of wrongdoing. A lesser degree of wrongdoing implies mitigated punishment.
          The search for the primary or basic offense implies, then, two different concepts of crime. The culpability-centered theory focuses exclusively on the actor who has formulated a criminal intent and has started to act upon it. Whether there is an actual victim, whether the action disturbs the peace, is irrelevant. What counts is the potential of the attempt to bring about harm, if it is not halted in its progression toward execution. The evil of the attempt lies primarily in its defiance of the legal norms designed to protect the interests of others.
          The harm-centered conception of crime focuses on the victim. The evil of the offense lies in killing, raping, burning, destroying, maiming, threatening—in general in bringing about harm to a concrete individual. When there is no actual but only a potential victim, there is by definition a lesser wrong.
          It is true that those who merely attempt but do not cause harm have lesser grounds for remorse and guilt. In Crime and Punishment Raskolnikov is properly haunted by the thought of having killed an old lady to take her money. If he tried to kill her and failed, it would be curiously neurotic for him to suffer the same pangs of guilt. Recognizing the role of remorse testifies to the close connection between wrongdoing and victimhood. That there is an actual victim—an irreversible harm to another human being—produces a human response that differs radically from the sense of impropriety that comes simply from violating a norm of the legal system.

We will now pick up some of the points that Fletcher makes in his extract. The first is the ‘problem of moral luck’.

Now I quote Jeremy Horder's Ashworth's Principles of Criminal Law (2022 10th edn), pp. 514-5.



It might be thought that if there is a justification for making the doing of ‘X’ criminal, then there must automatically be a justification for criminalizing an attempt to do ‘X’; but matters are not so straightforward.4 Let us begin with three examples: (a) X goes to the house of his rival, V, with a can of petrol, some paper, and a box of matches; he soaks the paper in petrol and is about to push it through the letter box when he is arrested before he can do anything more; (b) Y drives a car straight at V, but V jumps out of the way at the last moment and is uninjured; (c) Z is offered money to carry a package of cannabis into Britain; she accepts and brings the package in, but on her arrest it is found that the package contains dried lettuce leaves. These are all cases in which there may be a conviction for attempt.5 The first feature to be noticed is that no harm actually occurred in any of them—no damage was done, no injury caused, no drugs smuggled. Normally, criminal liability requires both culpability and harm: X, Y, and Z may appear culpable, but they have caused no harm. Why, then, should the criminal law become involved? One answer is that harm does indeed have a central place in criminal liability, but the concern is not merely with the occurrence of harm but also with its prevention. According to this view, the first decision for legislators is exactly which harms and wrongs should properly be objects of the criminal law (see Chapter 3). Once this has been decided, and taking the aims of the criminal law into account, the law should not only provide for the punishment of those who have culpably caused such harms but also penalize those who are trying to cause the harms. A person who tries to cause a prohibited harm and fails is, in terms of moral culpability, not materially different from the person who tries and succeeds: the difference in outcome is determined by chance rather than by choice, and a censuring institution such as the criminal law should not subordinate itself to the vagaries of fortune by focusing on results rather than on culpability. There is also a consequentialist justification for the law of attempts, inasmuch as it reduces harm by authorizing law enforcement officers and the courts to step in before any harm has been done, so long as the danger of the harm being caused is clear.


What makes an attempted murder successful is the absence of accidents which would otherwise make it unsuccessful.

Since there are no accidents in the commission of a crime which are exculpatory, there should be no distinction under the law between murder and attempted murder.


An attempted murder may have failed for a number of reasons. One possibility is that the potential murderer had a strong conscience that prevented the attempted murder from being realized. Compare this situation to that of a psychopath who has little to no restraint from the desire to murder. The latter obviously needs more deterrent, incapacitation, and rehabilitation than the former.


We're tying ourselves up in knots over such things as "(im)perfect knowledge of intent" and the possibility that "last second restraint" led to the failure to actually kill. In a system where the single crime of "murderous action" (regardless of outcome) replaces both "murder" and "attempted murder" (a position I wholeheartedly endorse), those would be matters to be determined by the trier of fact (jury or judge). Let the accused who was clearly heard by all his hostages screaming out "Die you filthy animal!" as he shot two rounds point-blank into the skull of one hostage try to make the case that the victim's survival was due to "last second restraint" rather than the heroic efforts of a world-class brain surgeon, and that his action was thus merely an "injurious action" or a "threatening action".

A person found guilty of "murderous action" has declared himself to be an enemy of society to equal extents in all outcome scenarios, and society's subsequent reaction should be based solely on actions and events that took place up to the point at which the accused is found to no longer have had control or influence over what followed. The idea that the eventual random results of the criminal's actions should weigh into his fate smacks of religious thinking, something like "If God had meant for him to be a murderer, He wouldn't have saved the victim" -- we might as well go back to Trial by Ordeal!

  • This read kinds of like a tirade. Can you reformat it to be about the ideas you are trying to present and less about "We're tying ourselves up ...", "... I wholeheartedly endorse...", "Let the accused ..." , "We might as well go back"
    – virmaior
    Commented May 25, 2014 at 15:24
  • @virmaior While I am neither ignorant of nor insensitive to the rules of learned debate, I find that a little hyperbole helps drive points home with a little "spice", but okay:
    – Jacques
    Commented May 25, 2014 at 16:37
  • @virmaior (cont'd) "we're tying ourselves up in knots over ..." == "We need not worry overmuch about ...", "I wholeheartedly endorse ..." == "a position with which I tend to agree", "Let the accused ..." == "Opportunities will be available at trial for the accused ...", "we might as well go back to ..." == "a concept tantamount to ...", but you already knew all that. :-) Any comments on the substance?
    – Jacques
    Commented May 25, 2014 at 16:43
  • that's a complete misunderstanding of what I am pointing out. This is philosophy.se -- not positions.se. The goal is precisely not to present our personal views but rather to explain in terms of frameworks what would make something distinct or why such a distinction ought to be rejected. And that's the opposite of the style you are using here.
    – virmaior
    Commented May 25, 2014 at 21:39

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