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The law of inchoate offenses, and of attempts particularly, is especially rich philosophically, as it embraces an unusually thick nest of normative and conceptual difficulties and puzzles. In this paper I want to discuss a problem in the law of attempts that has received somewhat less recent attention from philosophers than other aspects of attempt law. Comparing the following two cases will help bring out the difficulty upon which I want to focus.
(a) In People v. Dlugash,1 the defendant was convicted of attempting to murder a person whom evidence established was dead at the time of the attempt (though the defendant may have believed the victim still to be alive). Dlugash stood over his target and fired several shots in and around the victim's head and face-the victim had previously been shot by Dlugash's associate. Though it is disputed whether one should be convictable of an attempt to murder a corpse, one thing is clear: Dlugash did everything he could, given our ordinary understanding of how the world works, to bring about the result he evidently intended.
(b) In People v. Miller,2 the defendant was acquitted of attempted murder after informing witnesses that he intended to kill a man working as a laborer at a nearby farm. Carrying a .22 caliber rifle, Miller entered the field where the intended victim worked and advanced toward him. At a distance of about 100 yards, Miller stopped and appeared to load the rifle, though he did not lift the weapon as if to take aim. The victim fled and Miller relinquished his weapon, which had been loaded with a high-speed cartridge. Miller, it is clear, failed fully to execute his apparent plan.
These cases are instructive in several ways. First, they illustrate some of the familiar puzzles about attempts. Much of the recent literature on attempts, for example, has fixed on such questions as these: (a) Why should attempts be punished differently simply depending on whether they are successful? Doesn't this unjustifiably rest liability on an element of "moral luck"?3 (b) Why should "harmless" attempts be punished at all if what the actor sought to do was "impossible" under the circumstances: picking an empty pocket; shooting into an empty bed; recovering one's own property (thinking it stolen);...