Attempt by Omission

Author:Michael T. Cahill
Position:Associate Professor, Brooklyn Law School

In addition to requiring subjective culpability, criminal offenses typically involve two objective features: action and harm. In the paradigmatic case, both features are present, but criminal law also allows for liability where either of them is absent. Rules governing omission liability enable punishment where the offender performs no act, while rules defining inchoate crimes (such as attempt)... (see full summary)


Associate Professor, Brooklyn Law School. For providing valuable comments and insights after reading earlier drafts of this Article, I thank participants in a workshop at the Fordham Junior Faculty Colloquium and in the "Prawfsfest" conference at Hofstra Law School in July 2008. I also thank Joshua Fetto, Brian Hecht, and Andre Nance for their capable research assistance. Work on this Article was supported by a summer research stipend from Brooklyn Law School, for which I thank the School and Dean Joan Wexler. Please direct comments, questions, and other responses to

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I Introduction

In addition to requiring subjective culpability, crimes typically involve two objective features: action and harm.1 In the paradigmatic case, both features are present, as where the act of firing a gun2 leads to the harm of a person's death. Yet criminal law also has special rules enabling liability where either of these features is absent. Rules governing omission liability enable punishment where the offender performs no act.3 Inchoate crimes, typified by attempt, impose liability where the offender causes no harm.4 In different ways, these two sets of rules establish the minimum threshold of objective conduct-to use the classic term, the minimum "actus reus"- required for criminal liability.

The absolute floor for a criminal actus reus, then, should be defined by the intersection of these two sets of rules. Liability for what this Article alternatively calls "inchoate omissions" or, perhaps more to the point, "harmless inaction" would set the outer parameters of the state's criminalization authority, at least in terms of objective or conduct-related aspects (as opposed to culpability-related aspects) of crime.5 Page 1210

The law limits the potential to impose criminal liability based on an omission even where resulting harm occurs. A person may be punished for her failure to act only where a legal duty bound her to act in order to prevent the harm.6 classic examples of criminal omission involve legal caregivers or guardians: the parent who fails to care for a child;7 the child who fails to care for an elderly, infirm parent;8 or the healthcare worker who fails to provide needed care to a patient in her charge. 9 Where these caregivers' failures to satisfy their legal duties of care lead to harm, they may be subject to liability for neglect, battery, or even homicide.10

But what if a similar caregiver showed similar neglect toward the person in his charge, yet that person somehow managed to avoid harm-perhaps only because of heroic medical intervention unsought by, and beyond the control of, the neglectful caregiver? This caregiver would be bound by the same duty, possess the same culpability, and engage in the same inappropriate behavior as the one whose victim suffers harm. only the outcome would differ, and that difference would arise from factors extraneous to the two caregivers' culpability, choices, and conduct. one might think that this second caregiver is also a suitable candidate for criminal punishment. Indeed, many criminal-law theorists seem to think Page 1211 so. 11 At the same time, the prospect of punishment in the absence of either action or harm might seem to set an unexpectedly, and perhaps disturbingly, low floor for criminal liability-particularly in situations like the typical case of harmless neglect, where not only are the usual objective requirements lacking, but the offender's mental state reflects the minimum degree of culpability (negligence) normally allowed to support criminal liability.

This Article asks whether criminal punishment for harmless inaction is ever legally possible, empirically observable, or normatively desirable-and, perhaps surprisingly, answers all three of these questions in the affirmative. In a remarkable legal sum, zero action plus zero harm can, and sometimes does, add up to a crime. Further, this Article maintains that such liability is not based on faulty math, but can be entirely appropriate, at least in some circumstances.

Part II addresses the preliminary issue of defining the boundaries of the inchoate-omission category. Parts Ill and IV explore the extent to which existing law allows punishment for inchoate omissions. Criminal codes often address inchoate conduct in two different ways. 12 First, a general attempt provision will broadly impose liability for unsuccessful efforts to commit some other target offense. Second, other particular offenses will define specific situations where conduct is criminal regardless of whether it causes harm. Part Ill explores attempt rules, and Part IV explores specific offenses whose elements require neither action nor harm. Each Part examines the existing law on the books and then investigates the enforcement of that law (where it exists) to see whether and when prosecutions are brought for offenses involving neither action nor harm. As it turns out, omission liability is widely available for both types of inchoate crime-attempts and specific offenses-but unevenly pursued as between those types: prosecution for omissions under those attempt statutes appears to be hen's-tooth rare, whereas prosecutions under more particular statutes, though hardly routine, do occur with some frequency.

Part V offers some observations about the broader legal and normative questions that inchoate-omission liability raises. Given that such liability defines the outer boundaries of criminalization authority vis-a-vis objective conduct, an initial issue is whether it should be allowed at all, and if so, whether and how its substantive scope should be restricted.

If such liability is ever appropriate, a related issue arises as to what form the criminal prohibition(s) should take-that is, whether it is desirable to address omission liability using attempt law, particularized offenses, or both. Page 1212 Criminalization via a single, capacious attempt provision reflects an effort to develop what I call a "dense" code, while adopting numerous, more specific offenses generates what I call a "sprawling" code. Part V discusses the relative advantages and drawbacks of pursuing density versus sprawl and considers the lessons of this Article's investigation of inchoate omissions for the more general questions about how to structure criminal law.

II Defining the Category

Before examining the situations in which criminal law imposes liability for inchoate omissions, it is necessary to specify more clearly what this category includes. If inchoate liability and omission liability each cover situations where some paradigmatic aspect of actus reus is missing, we must identify the usually required element that goes missing in those situations and understand why its absence might be troubling.

It is also important to recognize that the absence of either of these elements might not be troubling. Some skepticism has already been expressed about the relevance of harm13 and action14 to criminal liability. Even so, there has been little consideration of the implications of abandoning both harm and action as predicates to criminal liability, or of what objective requirements of criminality, if any, would remain if punishment could be imposed in the absence of both action and harm. Larry Alexander and Kimberly Ferzan have expressed their willingness to adopt an understanding of criminal liability based entirely on subjective culpability-demanding only culpable risk-creation and not any resulting harm or affirmative act15-but few of the other commentators who have Page 1213 criticized the independent significance of action or harm seem willing to go this far or seem to have contemplated the consequences of allowing liability where neither action nor harm is present. 16 Moreover, neither Alexander and Ferzan nor the other critics have undertaken, as this Article does, a broader exploration of the extent to which inchoate-omission liability- whether seen as good or bad-is allowed and pursued under the existing law. 17 Before embarking on that exploration, however, let us clarify what we seek to examine.

A What Is An "Inchoate" Crime?

It is possible to distinguish three types of objective conduct that may be subject to criminal sanction: harmful conduct, wrongful conduct, and conduct that threatens a harm or wrong.18 First, and least controversially, criminal law may impose liability for conduct that causes harm. 19 Probably Page 1214 the most common understanding of the general limits of criminal law applies some version of the "harm principle," under which it is at least prima facie acceptable to criminalize conduct that causes harm.20 Depending on the account offered, harm may or may not be a necessary or sufficient basis for criminalization, but it is generally understood that significantly harmful conduct and criminal conduct do and should overlap considerably. 21 Those who oppose the harm principle usually do not claim that criminal law cannot punish harmful conduct. Rather, they claim that criminal law can reach beyond harmful conduct to cover a second category: conduct that is harmless but nonetheless viewed as inherently morally wrongful or offensive. 22 Commonly proffered examples of harmless wrongdoing include breaking a gratuitous promise,23 trespassing on property without damaging it, 24 and mutilating a corpse. 25 The suitability of criminal liability for harmless wrongdoing is a matter of debate.26 Page 1215

In addition to harmful and wrongful conduct...

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