§ 27.09 MODEL PENAL CODE

• Jurisdiction: United States

§ 27.09. Model Penal Code¹⁸⁸

[A] Introductory Comments

According to the Commentary to Section 5.01 of the Model Penal Code, which is the Code provision on criminal attempts:

The literature and the decisions dealing with the definition of a criminal attempt reflect ambivalence as to how far the governing criterion should focus on the dangerousness of the actor's conduct, measured by objective standards, and how far it should focus on the dangerousness of the actor, as a person manifesting a firm disposition to commit a crime.¹⁸⁹

That is, the law has struggled with the competing principles of objectivism and subjectivism. The drafters of the Code, however, are not ambivalent: "[T]he proper focus of attention is the actor's disposition. The Model Code provisions are accordingly drafted with this in mind."¹⁹⁰

The Model Code's approach to criminal attempts—indeed, to all inchoate offenses—is subjectivist nearly throughout. It defines a criminal attempt in a manner that "make[s] amenable to the corrective process those persons who have manifested a propensity to engage in dangerous criminal activity."¹⁹¹ Its treatment of defenses to criminal attempts (it abolishes the defense of hybrid legal impossibility, but recognizes the defense of abandonment), and the punishment it imposes for inchoate offenses (in general, it grades an inchoate crime at the same level as the completed offense), are similarly motivated by subjectivist goals.

Section 5.01 has had significant impact on American attempt law. Most federal courts apply its doctrines, although Congress has not enacted the provision; and a large number of states have adopted the Code provision in its entirety or in part.¹⁹²

[B] Criminal Attempt: In General

[1] Elements of the Offense

Generally speaking, a criminal attempt under the Code contains two elements: (1) the purpose to commit the target offense; and (2) conduct constituting a "substantial step" toward the commission of the target offense. These elements are explained more fully in subsections [C] and [D] below.

[2] Explaining Subsection (1)

Section 5.01, subsection (1), which defines a criminal attempt, is a complicated provision. It reads:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

To analyze an attempt issue under subsection (1), it is necessary to ask and answer one or two questions. First, does the case involve a complete or incomplete attempt? Second, if the case involves a complete attempt, is the target offense a "result" crime (e.g., murder) or a "conduct" crime (e.g., driving an automobile under the influence of alcohol)?

Subsections (1)(a) and (1)(b) pertain to completed attempts. Specifically, subsection (1)(a) should be considered when the target offense of the completed attempt is a so-called conduct crime; subsection (1)(b) applies to result crimes. If the prosecution involves an incomplete attempt, subsection (1)(c) is used. However, this subsection must be read in conjunction with subsection (2), which elaborates on the meaning of "substantial step."

[C] Mens Rea

In general, a person is not guilty of a criminal attempt unless it was her purpose, i.e., her conscious objective, to engage in the conduct or to cause the result that would constitute the substantive offense.

There are two exceptions to the requirement of purpose. First, subsection (1)(b) expressly and subsection (1)(c) implicitly¹⁹³ provide that a person is guilty of an attempt to cause a criminal result if she believes that the result will occur, even if it was not her conscious object to cause it. For example, if D plants a bomb on an airplane in order to kill V, her husband, and the bomb fails to go off or is defused, she is guilty of attempted murder of V, because it was D's conscious objective to take V's life; but she would also be guilty of attempted murder of the other passengers in the airplane if she believed that they would die in the bombing.¹⁹⁴ The common law outcome in this case is uncertain.¹⁹⁵

Second, the Commentary to Section 5.01 explains that the prefatory phrase in subsection (1) — "acting with the kind of culpability otherwise required for the commission of the crime"—means that the mens rea of "purpose" or "belief" does not necessarily encompass the attendant circumstances of the crime.¹⁹⁶ For "attendant circumstance" elements, it is sufficient that the actor possessed the degree of culpability required to commit the target offense. For example, if D would be guilty of statutory rape on proof that he was reckless as to the girl's age (the attendant circumstance), then he may be convicted of attempted statutory rape if he was reckless, but not if he was negligent or innocent, as to the girl's age. If the material element of the girl's age is one of strict liability, i.e., D may be convicted of statutory rape although he reasonably believed that she was old enough to consent, then he may also be convicted of attempted statutory rape although he lacked a culpable mental state as to this attendant circumstance. The common law rule on this matter is uncertain.¹⁹⁷

[D] Actus Reus

[1] In General

In a significant departure from the common law, the Model Penal Code shifts the focus of attempt law from what remains to be done, i.e., the actor's proximity to consummation of the offense, to what the actor has already done.¹⁹⁸ In incomplete attempt cases, subsection (1)(c) provides that, to be guilty of an offense, an actor must have done or omitted to do something that constitutes a "substantial step in a course of conduct planned to culminate in his commission of the crime." The premise of the Code is that one who engages in such purposive conduct is sufficiently dangerous to justify state intervention, even if she is not yet close to consummation of the offense. The "substantial step" standard is intended to "broaden the scope of attempt liability."¹⁹⁹

Section 5.01(2) provides further content to the imprecise term "substantial step." First, it indicates that conduct is not a substantial step unless it strongly corroborates the defendant's criminal purpose. This language is meant to reduce the risk of conviction of innocent persons. It incorporates some...