Mens rea and inchoate crimes.
Author | Alexander, 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
maim.(6)
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
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INTERNALLY AND EXTERNALLY 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
not.
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.
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THE SIGNIFICANCE OF PURPOSES BEING INTERNALLY CONDITIONAL
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.
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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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