Criminal attempts.

• Author: Yaffe, Gideon
• Position: IV. Trying by Asking: Solicitation as Attempt B. Act Crimes, Result Crimes: How Courts Should Decide through Conclusion, p. 124-156

2. Act Crimes, Result Crimes: How Courts Should Decide

   The solution to our problem can be reached by recognizing that in cases like Decker, the defendant's intention differs from that of the paradigmatic attempter. As we will see, despite this difference, sometimes the defendant's intention commits him to all of the components of the completed crime, and sometimes it does not. Therefore, sometimes the defendant's intention suffices for the attempt, and sometimes it does not. In other words, the distinction crucial to the resolution of hard cases is a distinction in mental state; in some such cases, the defendant has the mens rea for attempt, and in others he does not. The Guiding Commitment View tells us what intention the attempter has: an intention that commits him to each of the components of the completed crime. So it seems likely that we will be able to draw a distinction between those solicitations that rise to the level of attempt and those that do not by distinguishing between those solicitations that are motivated by an intention that commits the defendant to all the elements of the solicited crime, and those that do not.

   In hard solicitation-as-attempt cases like Decker, the defendant's relevant intention is not an intention to perform any act that would serve as the act element of the completed crime. Decker did not intend to point a gun at his sister and pull the trigger, for instance. But in all such cases, the defendant does intend that the solicited party act in some particular objectionable way: Decker intends that Holston kill his sister. A crucial question, then, for determining if the defendant's solicitation amounts to an attempt is as follows: under what conditions is an intention with that content sufficient for the intention required for the attempt?

   The answer to this question turns on the distinction between "act" and "result" elements of crimes. There is a clear distinction between what we merely cause and what we do. To do is to cause, but to cause is not necessarily to do; sometimes we cause events that we are not active with respect to in the way that is required for action. A woman calls her dog from across the street. The dog runs to her and, much to the woman's horror, is crushed by a passing car. The woman caused the dog to be crushed, but she did not crush the dog. A particular event, such as a dog being crushed, is an act element of a crime if, and only if, three things need to be shown by the prosecution to establish that the defendant committed the offense: that the event occurred, that the defendant caused the event, and that the defendant was active with respect to it. It must be shown, that is, that the event occurred and was caused by the defendant in the way that qualifies it as his doing. By contrast, if the event is a result element, it needs only to be shown that the event occurred and that the defendant caused it; the defendant need not be shown to have been active with respect to it. Circumstantial elements of crimes are those conditions that need to be shown to have been present, but do not need to be shown either to have been caused by the defendant or to have been something with respect to which the defendant was active. (47)

   The distinction between acts and results is both highly intuitive and difficult to specify with precision. When you walk into a room, you cause the temperature in the room to rise, but that is not something you do. Part of the difference between results and doings derives from facts about mental state. The things that you cause unwittingly, without any kind of prior awareness of even the possibility that you will cause them, are not things with respect to which you are active. However, intention is not required for activity; there are things that we do, but unintentionally. Further, prior awareness falling short of intention, such as awareness of significant risk, plus causation does not suffice for activity. Even if the woman, in the example just given, who calls her dog was aware of a risk that her dog would be crushed, it is not the case that she crushed her dog. In that case, what is missing is a kind of personal involvement in the crucial event--dirty hands--that is present when the event is one with respect to which the agent is active. The project of laying bare the conditions that underlie our intuitive judgments about the line between what we do and what we cause is one of the central projects of the philosophy of action. Ultimately, a proposed specification of the conditions that constitute this distinction is beholden to our intuitive judgments. To test such a proposal, we need to compare it to the verdicts that we make in ordinary contexts. We need to decide whether the events that an agent is active with respect to under the account are those that we would judge, in sober moments, to possess that extra something that we find in action and for which causation by itself is insufficient. Luckily, the law's sorting task--the task of sorting those who have committed crimes from those who have not--can be carried out to a large extent, even if not always, by appeal to the intuitive judgments to which a precise account would be beholden. We can move forward trusting that when the prosecution needs to show that a defendant was not just the cause of an event but was also active with respect to that event, juries will know activity when they see it, and will know also when it has not been shown.

   Therefore, under the Guiding Commitment View, the precise intention needed for an attempt is a function of the classification of the elements of the completed crime as act, result, or circumstance. The Guiding Commitment View tells us that what a person has attempted is a function of what his intention committed him to. Only if the defendant's intention commits him to all that is involved in the completed crime has he attempted. But what is involved in the completed crime is in part a function of the classification of its various elements as act, result, or circumstance. If the completed crime includes the act of defacing property, then for attempt the defendant's intention must commit him to property being defaced, to causing property to be defaced, and to being active with respect to the defacement of the property. By contrast, if the completed crime includes the result of property being defaced, then the defendant's intention must commit him only to property being defaced, and to being the cause of that; it need not commit him to being active with respect to the relevant event.

   While crimes have distinct act elements and result elements, the acts that the criminal law cares about are virtually always described by reference to their results. The California murder statute of relevance to Decker's crime, a statute that is perfectly typical of jurisdictions that have not adopted the Model Penal Code, reads, "Murder is the unlawful killing of a human being ... with malice aforethought." (48) Should we characterize this as a crime with the act element of killing or a crime with the result element of death? It is far from clear what the answer is to this question. (More on this below.) Still, it is natural to characterize it in the first way, given the appearance in the statute of the term "killing." So characterized, among the things that must be proven in a murder trial in California is not just that the defendant caused a death, but also that the defendant was active with respect to that death. By contrast, the Model Penal Code defines one form of "criminal mischief' like so: "A person is guilty of criminal mischief if he ... purposely or recklessly causes another to suffer pecuniary loss by deception or threat." (49)

   Here it seems that the act element is deception or threat-a guilty defendant deceived or threatened another--while pecuniary loss is a result element. (50) A guilty defendant caused pecuniary loss, but it need not be the case that he was active with respect to the other's loss of money. For a defendant to be guilty of criminal mischief under the Model Penal Code, he must have caused another to be deceived or threatened while active with respect to that condition, and must have caused another to lose something of pecuniary value. But his activity with respect to the latter condition is irrelevant; it will be present in some guilty defendants, absent in others. The broker who, through deception, takes control of another's money and loses it is guilty of criminal mischief; the defendant is active with respect to both the deception and the loss in such a case. But the person who deceives another and thereby leads him to make an investment whereby the victim loses his own money has also committed the crime; such a person has committed criminal mischief even though the defendant is not active with respect to the loss of money.

   The divide between act elements and result elements is not merely formal; it is of normative significance. It is something about which legislators ought to debate when defining a crime by statute. To criminalize the causation of a fetus's death, for instance, would be to criminalize a much larger number of acts than would be criminalized were the crime to require, instead, the killing of a fetus. If a defendant is at fault in a minor car accident with a pregnant woman that results in the death of the fetus, then he has certainly caused a fetus's death, but it is far less clear that he has killed a fetus. We can imagine cases in which activity with respect to an event is absent despite the fact that there is causation. Whether we want to criminalize such behavior under a particular statute will depend on our normatively significant goals in writing the statute and will influence what penalty we take to be appropriate for the crime we are defining. One, although not the only, relevant factor is this: when an event, like a fetus's death, figures into the description of the act required for the...