Criminal attempts.

AuthorYaffe, Gideon
PositionIntroduction through IV. Trying by Asking: Solicitation as Attempt A. The Insufficiency of Accomplice Liability, p. 92-124

ARTICLE CONTENTS INTRODUCTION I. THE SOURCE OF AN ATTEMPT'S CRIMINALITY: THE CRIMINALITY OF COMPLETION A. The Transfer Principle B. The Wide and Narrow Senses of "Try" C. Taking Stock II. INTENTION A. The Rationally Constituted Nature of Intention B. Intention-Based Commitments and Responsibility C. Broadening Our Perspective on Intention-Based Commitments D. Taking Stock III. THE LEGALLY RELEVANT SENSE OF "TRY" A. The Guiding Commitment View B. Guidance and "Mere Preparation" C. Neither "Subjectivism" nor "Objectivism" D. Taking Stock IV. TRYING BY ASKING: SOLICITATION AS ATTEMPT A. The Insufficiency of Accomplice Liability B. Act Crimes, Result Crimes: How Courts Should Decide C. Taking Stock V. CIRCUMSTANCES AND "IMPOSSIBILITY" A. Clearing Ground and Setting Aside Legal and Factual Impossibility B. Belief and the Rebuttable Presumption C. Recklessness and the Relevance of the Facts D. Taking Stock VI. ABANDONMENT AND CHANGE OF MIND A. The Problem B. Mitigating Factors and the Ceiling on Attempt's Sanction C. Why Abandonment Mitigates D. The Motive for Abandoning E. Taking Stock CONCLUSION INTRODUCTION (1)

For good reason, attempts to commit crimes are themselves crimes in every mature legal system. A bungled robbery, a missed shot, a beating that fails to kill despite the perpetrator's best effort, a would-be rape fought off by the intended victim, a smuggling stopped at the border, and many more failed efforts besides possess the marks of wrongful conduct to which the state should respond with criminal penalties. And yet courts and commentators have consistently failed to explicitly offer a coherent theory of this fundamental area of criminal law. Struck by the difficulty of discovering--and the darkness surrounding-principled solutions to adjudicatory problems about attempts, Jerome Hall wrote in 1940:

Whoever has speculated on criminal attempt will agree that the problem is as fascinating as it is intricate. At every least step it intrigues and cajoles; like la belle dame sans merci, when solution seems just within reach, it eludes the zealous pursuer, leaving him to despair ever of enjoying the sweet fruit of discovery. (2) Despair no longer. This Article offers a framework for thinking about attempts that solves important problems of adjudication--problems to which we currently lack principled solutions despite the great frequency with which defendants charged with criminal attempts appear in courtrooms.

The simple intuitive appeal of the idea that attempts are to be punished belies the complexity and confusion that surround their adjudication. Some cases are black and white, to be sure, but a startling percentage are not. We have a much less clear idea than we need of what, exactly, we have criminalized in criminalizing attempt. It is therefore often very difficult to tell if a particular defendant has committed a criminal attempt; the courts do not know exactly what they are looking for. (3) This confusion manifests itself, for instance, in the many and various descriptions of the conditions that must be met in order for the defendant's conduct to constitute more than "mere preparation," several of which are metaphorical ("direct movement towards" completion, for instance). (4) But it also comes up in many other places, often in contexts in which the problems seem, at first glance, to be more tractable than courts have actually found them to be. Consider three well-known problems.

First, the problem of specifying the line between solicitation and attempt: Ronald Decker paid Wayne Holston $5000 to kill Decker's sister. When Holston asked Decker if he was sure this is what he wanted, Decker replied, "I am absolutely, positively, 100 percent sure, that I want to go through with it. I've never been so sure of anything in my entire life." (5) Unfortunately for Decker, Holston was not a hitman but an undercover cop. (6) Decker clearly solicited murder, a crime for which he could be sentenced for up to nine years in prison in California, where he lived. (7) But did Decker attempt murder? If so, he could be sentenced to life in prison. When does asking someone to commit a crime amount to attempting it?

The court in Decker noted that a long string of decisions in California use the term "slight acts" to refer to conduct in furtherance of a criminal intention that suffices for attempt of the intended crime. (8) Reasoning that since Decker made a down payment, he engaged in such "slight acts," the court convicted Decker of attempted murder. But, of course, the question of whether an act is "slight" or less than slight (whatever that might mean) is no easier to answer than the question of whether Decker tried to kill his sister. The justices' problem was that while they were convinced that Decker tried to kill his sister, they were powerless to explain why that was true, and so they used a bit of entirely uninformative legal terminology to hide their confusion.

Second, the problem of so-called "impossibility": the defendant in United States v. Crow had multiple conversations in an Internet chatroom with someone going by the name of "StephieFL." (9) During the course of their conversations, StephieFL claimed to be a thirteen-year-old girl. In fact, the messages were written by an undercover (adult) police officer. Crow was charged with attempting sexual exploitation of a minor because he tried to convince StephieFL to send him sexually explicit photographs of herself. (10) The completed offense requires a showing that the person exploited is indeed a minor. Did Crow attempt sexual exploitation of a minor, or does the fact that it was an adult he was actually in contact with show that he did not? After all, given that Crow was chatting with an adult, there was no chance at all that his conduct would succeed in sexually exploiting a minor. Under which conditions do the circumstantial elements of the completed crime need to be in place for the attempted crime? And what mental state need the attempter have with respect to those elements when they are absent?

On appeal, Crow noted that the jurors had not been instructed that for guilt they must find that the person Crow was attempting to sexually exploit was in fact a minor. (11) As this is an essential element of the completed crime of sexual exploitation of a minor, Crow claimed that it was also an essential element of the attempt, and so the trial verdict could not stand. (12) Crow was raising a general question to which an answer is required: do circumstantial elements of completed crimes need to be in place for attempts of those crimes (and if not, why not)? But the court, having no idea how to answer this question, did not even try to give a reason for its answer, simply asserting that Crow's argument failed. (13) The judges' problem was that they were quite certain that Crow was trying to sexually exploit a child in the sense of relevance to criminal responsibility. What they were ill equipped to explain was how that is consistent with the fact that the only person Crow was trying to sexually exploit, namely the one he was chatting with, was an adult. (14) The result is that the court lacked the tools it needed to explain why it decided the case as it did.

Third, the problem of determining the relevance or irrelevance of change of mind to attempt: George Taylor forced his way into the apartment of a stranger and, "threatening her with a knife, he made aggressive sexual advances." (15) The court describes what happened next:

Because of her fear of the knife, [the victim] sought to dissuade him--rather than fighting him or screaming--by "trying to make him believe he could be [her] boyfriend and he did not have to do it this way." Despite these efforts, he carried her into the bedroom where he continued to touch and rub himself against her and tried to pull down her pants. After [the victim] "told him he could come to [her] house anytime," he relented and they "went back to the living room and started talking." He took off the surgical gloves he had been wearing during the attack, saying that he was "not going to be needing these anymore." (16) A bit later, the victim convinced Taylor to accompany her to a liquor store where they could get a bottle before returning to her apartment. On the way out, she ducked back into the apartment and locked the door behind her, leaving Taylor in the hall. Taylor knocked on the door and tried without success to get her to open it. She then called the police. (17) Does the fact that Taylor changed his mind matter to the case? Does it relieve him of guilt for attempted rape? Or does it provide a reason for mitigation of sentence? Or neither?

The court in Taylor is in the same lamentable position as the courts in Decker and Crow. Although the judges are confident that in whatever sense Taylor changed his mind it was not the sense that matters to attempt, they have no idea in what sense change of mind does matter. Hiding their confusion with a legal term, they insist that Taylor's change of mind, while "voluntary," was not "complete." (18) The court then appeals to a definition of "complete" offered by the Model Penal Code, and adopted in New York, according to which renunciation is incomplete if the defendant chose merely to wait till a later time to commit the crime. (19) The problem is that there is no reason at all to think that when Taylor stopped his attack and removed his surgical gloves, he was planning to rape the victim later. He seemed convinced that they would have consensual sex. But the court ignores this glaring fact--perhaps because it can see no other ground on which to reject Taylor's abandonment defense, and the judges are convinced (with good reason, as will be shown in this Article) that it should be rejected.

Judges in the domain of attempts appear to be behaving in the way that legal realists have for years taken to be endemic to judicial behavior: the judges seem to decide first and...

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