The function of the criminal system is to punish individuals who violate local, state, and federal law. The punishment may vary from monetary punishment to death (depending on the state), but the average person recognizes that severe laws that are broken result in the individual being removed from the general public for a specified period of time. Responsibility is clear when the wrongful act initiates and completes the wrongful act. However, a wrongful actor that does not complete the wrongful act may be responsible under criminal law. This is known as attempt liability, and it occurs when an actor takes a “substantial step” to complete the crime.
The Model Penal Code outlines the bounds of attempt liability in §5.01. To consider an actor’s conduct as a substantial step, the conduct would need to be strongly corroborative of the actor’s criminal purpose. Model Penal Code § 5.01. Additionally, under this section of the Model Penal Code, the following actions would be considered when the conduct is strongly corroborative of the actor’s criminal purpose: 1) lying in wait or searching for the “contemplated victim;” 2) enticing or seeking to entice the victim to go the place where the crime is supposed to be held’ 3) “reconnoitering” the place where the crime is supposed to take place; 4) unlawfully entering a structure, vehicle, or enclosure where the crime is supposed to take place; 5) possessing materials that would be used for the crime which are specifically designed for unlawful use or do not serve a lawful purpose of the actor; 6) possessing, collecting, or fabricating materials that will be used for the crime at or near the place where the crime is supposed to take place; and 7) soliciting an innocent person to engage in an element of the crime. Id.
Some states take a similar approach to the Model Penal Code in its definition of attempt liability. Under the NRS, “an act done with the intent to commit a crime, and tending but failing to accomplish it,” is grounds to hold a wrongful actor responsible under attempt. Nev. Rev. Stat. Ann. § 193.153. The statute lists several punishments for attempt liability dependent on the felony category that the crime would be if it was accomplished. Id. An attempt to commit a category A felony will result in imprisonment in state prison for a period between two and twenty years. NRS § 193.153(1)(a). An attempt to commit a category B felony in which the maximum period of imprisonment is more than 10 years will result in imprisonment in state prison for a term between one and ten years. NRS § 193.153(1)(b). An attempt to commit a category B felony in which the maximum period of imprisonment is less than 10 years is provided in NRS 193.130. Id. An attempt to commit a category C, D, or E felony results in imprisonment in the county jail for up to 364 days, a fine of up to $2,000, or both imprisonment and a fine. NRS § 193.153(1)(c)-(e). If an individual attempts to commit a misdemeanor, a gross misdemeanor, or a felony that is not dictated in the NRS, the consequence is imprisonment for up to “one-half of the longest authorized term by statute,” a fine up to “one-half the largest sum,” or both imprisonment and a fine. NRS § 193.153(2).