Mens rea and inchoate crimes.

AuthorAlexander, Larry

I. Introduction

When a defendant engages in proscribed conduct or in conduct

that brings about a forbidden result, our interest focuses on his state

of mind at the time he engages in the proscribed conduct or the

conduct that causes the result. We usually are unconcerned with his

state(s) of mind in the period leading up to the conduct. The

narrative of the crime can begin as late as the moment defendant engages

in the conduct (or, in the case of completed attempts,(1) believes he is

engaging in the conduct).

Criminal codes do not restrict themselves to proscribing harmful

conduct or results, however, but also criminalize various acts that

precede harmful conduct. Thus, codes punish agreeing to engage in

criminal conduct,(2) Soliciting such conduct,(3) and taking a substantial

step toward engaging in such conduct.(4) Codes also elevate the seriousness

of some crimes if they are committed with the purpose of

committing some further crimes. Thus, trespass or breaking and entering

become burglary if committed with the intention to commit

other crimes on the premises.(5) Or simple assault can become a more

aggravated offense if committed with the intent to kill, to rape, or to


What mental states are required for these "inchoate crimes" -- i.e.,

crimes that are preliminary to bringing about the harms that are the

criminal law's ultimate concerns? The mental states cannot be

identical to those required for completed a" and completed attempts,

for the defendant committing an inchoate crime is aware or believes

that there is still time to desist and renounce. That awareness or

belief is at least one qualitative distinction between the mental states of

completed and inchoate crimes.

For an inchoate crime such as conspiracy, solicitation, or

incomplete attempt, criminal codes usually require that the defendant must

have the purpose to engage in the forbidden conduct. This

requirement is ambiguous in two respects. Firs, purposes with respect to

future conduct can be conditional, unlike the purposes that accompany

completed conduct, which, however conditional they once were,

become unconditional at the point of decision. The conditions attached

to purposes regarding future conduct can be either internal

(subjectively entertained by the defendant) or external (factors that, given

defendant's dispositions, would cause him to alter his purposes once

he becomes aware of them). If some but not all conditional purposes

satisfy the purpose requirement of inchoate criminality, which do and

which do not? Orthodox doctrine conceals this difficulty.

Second, the requirement that defendant have as his purpose the

commission of future criminal conduct is ambiguous with respect to

the requisite mental states for the various elements of the future

crime. Thus, if a completed crime (or attempt) requires only

negligence regarding an element, or treats the element as a matter of strict

liability, what mental state does the requirement of "purpose" for

inchoate crimes entail for such an element?

These two ambiguities in the requirement of purpose for

inchoate crimes are obviously linked whenever the defendant's purpose is

internally conditional on the nonexistence of a particular element.

Thus, if killing a cop is an aggravated murder, and the status of the

victim as a cop is a matter of strict liability, then if defendant has as his

purpose the killing of X only if X is not a cop -- and, at the moment of

the law's intervention, defendant believes X is not a cop and thus (at

that moment) intends to kill him -- does defendant have the requisite

purpose for inchoate criminality?(7)

Our plan is first to explore separately these two ambiguities in the

purpose requirement for inchoate crimes and then to explore the

linkage, if any, between them. Section II will thus address the

problem of conditional purposes; Section III will address the problem of

the relation between the mens rea required for completed crimes and

attempts and the mens rea required for inchoate crimes; and Section

IV will address the linkage between these two issues.

The mens rea discussion in Sections II-IV will disclose some deep

theoretical difficulties in the justifications for having inchoate crimes.

In Section V we shall turn normative. Should we jettison inchoate

crimes from the repertoire of the criminal law? Or should we retain

inchoate crimes and reconsider the standard justifications for

criminal punishment?

II. Conditional Purposes


    Conditional purposes in a strict sense are purposes that the

    actor -- who for our purposes will be referred to as the

    defendant -- subjectively holds to be conditional on the occurrence or

    nonoccurrence of some event, including acquiring certain beliefs. We shall

    refer to conditional purposes in this strict sense as internally conditional

    purposes, because the conditions are part of defendant's own understanding

    of his mental state.(8) Externally conditional purposes are

    purposes that will in fact be renounced by defendant if some event

    occurs but which at present are viewed by defendant as unconditional.

    Some common examples of internally conditional purposes of

    interest to the criminal law include a purpose to kill unless defendant is

    allowed to escape,(9) a purpose to rape unless the victim is a virgin,(10)

    and a purpose to steal unless there is no money in the house.(11) In all

    of these cases the defendant has as his purpose the commission of a

    crime unless some condition obtains or fails to obtain. Moreover, in

    none of these cases does the condition negate the criminality of the

    purpose. In other words, killing is still a crime even if necessary to

    effect an unlawful escape, having forcible sex is still a crime even if the

    victim is not a virgin, and stealing is still a crime even if the thing

    stolen is money.

    All purposes to engage in future criminal conduct are externally

    conditional if there are some circumstances that will cause defendant

    to desist from his plan to engage in that conduct. The counterpart

    externally conditional purposes to those in the above examples would

    be the following: defendant's subjectively unqualified purpose to kill,

    where defendant will not in fact kill if he is allowed to escape;

    defendant's subjectively unqualified purpose to rape, where defendant will

    not in fact rape if he discovers the victim is a virgin; and defendant's

    subjectively unqualified purpose to steal, where defendant will not in

    fact steal anything if there is no money. The criminal law assumes that

    externally conditional purposes are sufficient for inchoate criminality

    because in most states and under the Model Penal Code, inchoate

    crimes are renounceable, and renunciation could not occur were the

    original purpose not conditional on the event that triggers the

    renunciation.(12) Moreover, the criminal law is clear that internally

    conditional purposes can be sufficient for inchoate criminality;(13) and, given

    that, it would be very strange if externally conditional purposes were


    The conditionality of defendant's purpose is of interest only in

    cases of inchoate crimes. In completed crimes(14) the conditionality of

    defendant's original purposes is immaterial because those purposes

    have become unconditional by the time of the crime. Inchoate

    crimes, however, contemplate future completed crimes, crimes that

    have not yet occurred. In an inchoate crime, the defendant's purpose

    is to bring about a future crime, and that purpose can be internally

    and externally conditional in all sorts of ways.


    What significance, if any, should attach to the fact that

    defendant's purpose to engage in future criminal conduct is consciously

    conditional? In the following subsections we explore the variety of

    answers to this question that have been or might be proposed,

    beginning with the Model Penal Code.

    1. The Model Penal Code and the Immateriality of Conditions

      The Model Penal Code, in [sections] 2.02(6), states:

      When a particular purpose is an element of an offense, such element is

      established although such purpose is conditional, unless the condition

      negatives the harm or evil sought to be prevented by the law defining

      the offense.(15)

      In other words, the Model Penal Code treats conditions attached to

      criminal purpose as immaterial unless they negate the criminality of

      the purpose.

      The Model Penal Code's answer to our question might seem

      radical. Consider John and Jack, who agree after buying a ticket in the

      lottery that if they should win the jackpot, they will murder their wives

      and spend their millions on high living. The Model Penal Code

      would label this agreement a conspiracy to murder, despite the fact

      that John and Jack's chance of winning is infinitesimal.

      Or consider Jake, who points a loaded gun at Vickie and

      threatens her with death unless she gives him her purse. Armed robbery,

      surely. The Model Penal Code, however, would also appear to deem

      this an assault with intent to kill or even an attempted murder, despite

      the fact that Jake both hopes and expects Vickie will hand over the

      purse. After all, under [sections] 2.02(6), Jake's conditional purpose is to be

      treated as if it were an unqualified purpose to kill Vickie.

      The Model Penal Code's answer is also inconsistent with much of

      the case law. For example, in several cases involving threats to kill

      made to effect escape or some other goal, courts have reversed

      convictions of assault with intent to kill.(16) Although the courts' reasoning

      in these cases is less than transparent, and other courts have reached

      opposite conclusions, intuitively it seems a stretch to treat these cases

      as assaults with intent to, kill or as attempted murder.

      Why did the authors of the Model Penal Code take such an

      absolutist position on conditional purpose? The Comments to the Code

      do not disclose the underlying reasoning, but perhaps the authors saw

      no way to draw lines within the...

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