Trust and Punishment: The Dilemma of Inadequate Attempt in Criminal Law


By: Jonathan Guerra Bohórquez, Specialist in Criminal Sciences and Criminology

Yuval Noah Harari argues that "a large number of strangers can cooperate successfully if they believe in common myths." This idea has been pivotal throughout human history, enabling the creation of concepts such as the State, laws, and money — all grounded in social trust.

Trust in the State allows it to regulate activities and impose standards of conduct. A clear example of this is the ius puniendi — the State's authority to sanction behavior. However, this power must be exercised with care to avoid undermining the legitimacy and trust that society places in it.

In this article, we examine the relationship between the State's power to punish and the importance of preserving confidence in its punitive system, with a particular focus on one specific concept: the inadequate attempt (tentativa inidónea).

What Is an Attempt?

The offense of attempt occurs when a person, with the intent to commit a crime, begins to carry it out but does not complete it due to circumstances beyond their control. This legal construct allows for the punishment of conduct that, even if it caused no actual harm, nonetheless violates the legal norm.

Under Colombian law, only the adequate attempt (tentativa idónea) is subject to criminal sanction. This has given rise to debate over the distinction between the adequate attempt and the inadequate attempt — the latter being one that fails to reach completion due to a lack of suitability in the conduct itself, the objects used, the victim, or the means employed.

An Example of an Inadequate Attempt

In the context of the Colombian armed conflict, consider a guerrilla group that plans an attack against an army general using C-4 explosives. The attack fails because the general's vehicle is fitted with Level 5 armor plating. Consider the following analysis:

• Ex ante: Before the attempt, the attack appears adequate — explosives have been planted and the plan is underway.
• Ex post: After the attempt, the attack proves inadequate — the explosion was insufficient to achieve the intended result.

Conclusion

An inadequate attempt should not go unpunished simply because it failed to achieve its objective. Evaluating each case from an ex ante perspective ensures that any attempt which appeared suitable before it failed may be subject to criminal sanction. That said, punishing all attempts indiscriminately risks producing unjust outcomes and eroding public trust in the State.

The State must punish in a manner that is proportionate, rational, and just in order to preserve its legitimacy and the confidence of society. While a clear-cut distinction between the adequate and the inadequate attempt may not always exist, each case must be weighed according to the seriousness of the violation and the actual need to impose a sanction.

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