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> In an imaginary perfect criminal justice system, charges/penalties are based on damage done.

Hell no. Otherwise you could just set up one gigantic crime by comitting a bunch of small "no damage done" crimes along the way-say, stealing a string of credentials one at a time, but not actually using them until you have all of them together and then you commit your major heist/crime.

Mens rea is an important consideration so it's not just about damage done (though the fear a key could be used in pursuit of a worse crime is also a harm) but the intent/recklessness of an act.

Well, the imaginary perfect criminal justice system would probably arrest you right as you had completely committed to causing the damage, instead of afterwards. But it should still be justifying the arrest based on the act that caused damage, not the harmless acts that set you up to be ready to do it.

Ah, like Minority Report

The crime in this hypothetical degrades from Burglary to Trespass, not "no crime."

A burglar might kill someone, book them on home invasion charges even if the house was empty.

Lesser punishment doesn't mean no punishment. Furthermore, you can always argue that the intent is to commit a major crime.

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