Inchoate Crimes at the Prevention/Punishment Divide

In this Article, I argue that inchoate crimes are best dealt with under a preventive regime. Part II argues that inchoate crimes and preparatory offenses are primarily aimed at preventing a harm and not at punishing those who deserve it. It also revisits concerns with punishing incomplete attempts that Larry Alexander and I have voiced previously. Part III considers Alec Walen's recent proposal to combat terrorism through the criminalization of threats as an inchoate offense.

It also addresses general concerns with Walen's proposal and claims that Walen does not resolve the problems with inchoate criminality set forth in Part II. Part IV addresses how to choose between the regimes if both are normatively justifiable. It argues that there is no "right to be punished" that favors punishment, nor is there any reason in principle that procedural and legality guarantees could not be extended to a preventive regime. Part IV also argues that a prevention regime can survive against the objections raised against punishment because it can be responsive to concerns about intentions' conditionality, duration, and renunciation in a way the criminal law cannot.

Finally, Part IV turns to proportionality measures and argues that prevention is clearly superior to punishment if we truly wish to intervene and detain individuals to prevent them from harming us.