Abstract

Successful criminal attempts at an intended offense and failed attempts at the same are differentially punished, which means that a successful attempt carries more punishment than the failed attempt. However, because the difference between success and failure can be decided by luck or allegedly irrelevant factors, moral and legal philosophers have opposed differential punishment on the argument that offenders are equally morally blameworthy whether or not their criminal attempts succeed. Using premises accepted by those who oppose differential punishment, I offer a justification of differential punishment grounded in a relevant moral difference between realized and unrealized criminal attempts that involves rejecting the merger doctrine in criminal law. Under this doctrine, the criminal attempt and the intended offense should merge at conviction, which means the offender is only punished for the attempt or the intended offense but not both. I argue that the merger doctrine should not always apply, especially to attempted murder. If so, murder should carry more punishment than attempted murder by the same logic that committing two crimes should carry more punishment than committing either crime alone.