Model Penal Code Attempt

Model Penal Code Attempt

The proximity test measures a defendant's progress from the finished crime backward, counting what still separates the defendant from completion. Section 5.01 of the Model Penal Code measures from the other end. It asks what the defendant has already done toward carrying out the plan, and it treats the further steps that remain as no bar to liability.¹ That reversal makes the Code the principal modern alternative to dangerous proximity. The substantial-step language appears in the great majority of attempt statutes enacted in the modern recodifications, and courts in several jurisdictions have adopted the Code approach even where the legislature did not.² One count puts jurisdictions using a comparable test at roughly half the states and two-thirds of the federal circuits.³

The preceding discussion traced the main cost of a line drawn near completion to timing: police who intervene early may have nothing to charge. The Code's drafters set out to reduce that cost, and their commentary identifies three departures from the older tests. The inquiry shifts from what remains to be done to what the actor has already done, so that major steps still to come do not prevent the steps already taken from being substantial, and the drafters expected this to broaden attempt liability. The Code asks for some firmness of criminal purpose but does not require a finding that the actor would probably have gone on rather than desisted. And it is easier for the prosecution to satisfy than the res ipsa loquitur, or equivocality, approach, which demands that the conduct itself reveal the criminal purpose.⁴ The drafters concluded that a substantial-step requirement still screens out relatively remote preparatory acts, and that by dropping the demand for a last proximate act it lets the law apprehend dangerous persons earlier than the other approaches allow.⁵

An earlier line has its own cost, and the Code's design makes sense only with that cost in view. Reaching farther back into preparation helps the police stop a person who is firmly committed to a crime before the last act, but it also raises the risk of convicting someone who has not firmly decided to go through with it.⁶ The Code's safeguard is Section 5.01(2), which provides that conduct is not a substantial step unless it is strongly corroborative of the actor's criminal purpose.⁷ The filter matters because steps taken early are usually ambiguous: buying a tool or visiting a building fits a plan and an ordinary errand equally well. So the Code does not swap the distance test for no test at all. It swaps it for a test of how clearly the conduct reveals a settled purpose, which ties liability to the offender's demonstrated determination rather than to nearness to success.⁸

Courts have adopted the Code openly, and for reasons of administrability as well as policy. In State v. LaTraverse the Rhode Island Supreme Court declined to add anything to what has been described as the preparation-attempt “quagmire,” adopted Section 5.01 as the sensible approach, and noted that it was following the Second and Fifth Federal Circuits and the high courts of Ohio and Washington.⁹ The federal formulation in United States v. Mandujano runs in two tiers. The defendant must have acted with the kind of culpability otherwise required for the crime charged, and must have engaged in conduct amounting to a substantial step toward it, meaning conduct strongly corroborative of the firmness of the defendant's criminal intent.¹⁰ Another state court, in rejecting the proximity, probable desistance, and equivocality approaches, found the substantial-step test clearer, sounder, more practical, and easier to apply to the many different fact patterns that attempts produce.¹¹

Section 5.01(1) is built from one lead-in and then a set of alternative routes to liability. The lead-in provides that a person is guilty of attempt if, acting with the kind of culpability otherwise required for commission of the crime, the person does one of the things that follow.¹² It borrows the mental state from the target crime, so the prosecution cannot prove an attempt with a weaker mental state than the completed offense demands merely because the offense was never finished. The routes then add their own demands of purpose or belief. A prosecutor needs to establish only one of them, and they differ in what they require of the defendant's conduct:¹³

• Subsection (1)(a) reaches a defendant who purposely engages in conduct that would constitute the crime if the attendant circumstances were as the defendant believes them to be.¹⁴
• Subsection (1)(b) applies when causing a result is an element of the crime, and reaches a defendant who does or omits to do anything with the purpose of causing, or the belief that it will cause, that result without further conduct.¹⁵
• Subsection (1)(c) reaches a defendant who purposely does or omits to do anything that, under the circumstances as the defendant believes them to be, is a substantial step in a course of conduct planned to culminate in the crime.¹⁶

The practical difference from proximity shows up in conduct that the older test treats as preparation. In a California decision, People v. Gibson, a prospective burglar was convicted of attempted burglary after being apprehended in an alley with burglar tools, even though the defendant had not yet decided which of the nearby buildings to burglarize.¹⁷ Much still had to happen before any burglary, since a building had to be chosen and entered, yet the conduct counted because of what it already showed about the defendant's purpose. The Code's own list works the same way. It names searching for the contemplated victim among the conduct that cannot be held insufficient as a matter of law if strongly corroborative, and that is the kind of conduct the proximity decisions, Rizzo among them, treated as preparation.¹⁸

The Code asks about conduct already done, and that is the question students most often reverse. A court will sometimes recite the substantial-step test and then reject the attempt by listing what the defendant had not yet done, which is the proximity question in different words.¹⁹ A defendant who has not yet entered the building, found the victim, or picked up the weapon may still have taken a substantial step, because the Code asks whether what the defendant has already done strongly corroborates a firm criminal purpose, and steps that remain do not by themselves defeat that finding.²⁰ The next three sections take the routes in order, beginning with the route for a defendant who has engaged in all the conduct the crime requires while the circumstances differ from what the defendant believed.

Completed Conduct Attempts

Subsection (1)(a) is the first of the Code's three routes to attempt liability, and it asks the most compact question of the three. A person who acts with the kind of culpability the target crime requires is guilty of attempt if he purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be.²² Attendant circumstances are the facts an offense definition makes part of the crime apart from the defendant's own act, such as that goods are stolen or that a building is a dwelling. The clause tells the court to adopt the defendant's belief about those facts as the setting for the conduct, and then to ask whether, in that setting, what the defendant purposely did would be the crime. A defendant who has done everything the offense demands, and who differs from a completed offender only because the world did not match the picture in the defendant's mind, is reached by this clause.

The route suits crimes defined by conduct, such as receiving stolen property or possessing contraband, because for those offenses the defendant's own act, placed in the believed circumstances, is the entire crime. Crimes defined by a result, such as homicide, are not complete until the result occurs, so subsection (1)(b) supplies their route, and the next section takes it up.²³ The reason for measuring by belief, and not by the facts as they turned out, is that a fact outside the defendant's knowledge is something the defendant's purpose cannot reach. A person who purposely does what is believed to be a crime has shown the same criminal determination, and presents the same danger, as one whose belief happened to be accurate. A rule that let some undisclosed fact decide liability would make the outcome turn on luck. The Code instead ties attempt to the defendant's demonstrated criminal determination, which is the quality that makes an attempter dangerous.²⁴

The two scenes isolate a single variable. In each, the defendant knowingly performs an act of acquiring goods, and what decides the result is whether the believed facts would make that act a crime. That is why the defendant's belief, not the actual facts, sets the benchmark for this route.

Why a mistaken belief about the circumstances matters, for example when the buyer thinks the goods are stolen and they are not, belongs to a later reading on impossibility, so it is only flagged here.²⁵ For present purposes the working method is to restate the facts as the defendant believed them and then ask whether the defendant's purposeful conduct would be the target offense in that picture. If it would, subsection (1)(a) applies. If the believed picture is innocent, the defendant lacks the purpose to commit a crime, and the same belief language in the other two subsections leaves no alternative route.²⁶

Result Crimes and Last Acts

Subsection (1)(b) is the second of the Code's three routes, and it covers the narrowest ground. It applies only when causing a particular result is an element of the crime, and it reaches a person who does or omits to do anything with the purpose of causing that result, or with the belief that it will cause that result, without further conduct on his part.²⁸ As with every route, the actor must also have the kind of culpability otherwise required for the target crime.²⁹ A result element is a harm that the offense definition requires the defendant's conduct to bring about, as death is for homicide. An offense defined by the act alone, such as receiving stolen property, has no result for this route to aim at, so attempts to commit it are tested under the other two subsections.

The clause has three working parts, and each does its own job. The result limit confines the route to offenses like homicide, where the crime is not complete until the harm occurs, which is why an actor whose shot misses has not committed the offense and needs an attempt theory at all. The mental-state part requires either the purpose to cause the result or the belief that the act will cause it, so the route reaches the actor whose aim is the harm itself and also the actor who believes the harm will follow. The third part requires that no further conduct remain on the actor's part, and it gives the route its character as the last-act case, because it asks whether, in the actor's own understanding, anything is left for him to do. Omissions count as well as acts, since the text reaches one who omits to do something, so an actor whose deliberate failure to act is the means of causing death is covered if nothing further remains for him to do.³⁰

The Code states this case separately because a defendant who has done everything he believes necessary has crossed the line under any theory of attempt. Only chance or someone else's intervention now stands between him and the completed crime, so he is as near to success as a defendant can be, and his conduct is as firm a sign of criminal determination as conduct can be. Naming the case outright removes any argument that a defendant who has finished his last act is still only preparing. It is generally accepted that an actor who has engaged in the last proximate act has committed an attempt.³¹ Suzy, in one illustration, meant to kill Bob. She bought a gun, learned to use it, lured Bob to a spot where a shooting could pass as an accident, aimed at his heart, and pulled the trigger of a pistol she believed was loaded. Unknown to her, the shells were blanks. She acted with the purpose of causing death and did the last act she thought necessary, so she committed attempted murder even though nobody was hurt.³² Whether the blanks give her a defense is the impossibility question that a later reading takes up.

Reading the route as the last-act case invites the opposite error, which treats a last act as a condition of every attempt. The last-proximate-act test asks whether the defendant performed the final act necessary to commit the offense, such as pulling the trigger rather than merely aiming.³³ An early English decision, Reg. v. Eagleton, hinted at that requirement, but the same court rejected it within the year, and it is doubtful that any jurisdiction would follow it literally today because it would virtually abolish the offense.³⁴ The reason is that a shooter whose shot missed always has more to do, namely fire again, so a literal last-act test would acquit nearly every attempted shooter. Likewise, the first dose in a plan to kill by repeated doses of poison is attempted murder even though it is plainly not the last act.³⁵ The Code avoids the difficulty by looking at the actor's purpose and belief at the moment he acts. A shooter who fires intending this shot to kill has acted with the purpose of causing death without further conduct on his part, and the later possibility of a second shot does not change that. Subsection (1)(b) is therefore a sufficient but not necessary route to attempt liability: a defendant who has not reached his last act is not freed, but is tested under the substantial-step route instead.³⁶

Step three does the real work. Once the last act has occurred, the conduct is complete by definition, so the contest in a (1)(b) case is usually over the defendant's purpose or the evidence of it, and rarely over how far he got. The harder cases arise when further conduct remains, as when Mickey has only bought the gun, and those are where the Code's substantial-step language does its work in the next section.

The Substantial Step Standard

Subsection (1)(c) is the heart of the Code's attempt provision and the form most often litigated, because it governs the defendant whose plan is still under way when the police step in, as with Mickey once he had only bought the gun. An actor who has the kind of culpability the target crime requires is guilty of attempt if he purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.³⁸ The language about a planned course of conduct measures the act against the whole project the defendant has in mind, so the court asks how far along that project the defendant has gone. A substantial step is a meaningful advance in the plan, which excludes remote preparatory acts, and it works together with a second requirement found in § 5.01(2): the conduct is not a substantial step unless it is strongly corroborative of the actor's criminal purpose.³⁹ This section takes the two requirements one at a time, beginning with the step itself.

The first requirement looks at distance already traveled. Under the proximity approach the question is how much remains to be done before the crime is complete, while under subsection (1)(c) the question is what the actor has already done, and the fact that further major steps must still be taken does not prevent a finding that the steps already taken are substantial.⁴⁰ The reason lies in what the Code treats attempt law as being for. It aims at restraining dangerous people, and it measures dangerousness by the actor's criminal determination instead of by closeness to completion.⁴¹ A rule that waits for the crime to become imminent makes the police watch a plan ripen, which pushes the moment of lawful intervention toward the moment of greatest danger to the victim, while a rule that looks at what has been done permits an earlier arrest without freeing the dangerous actor from liability.⁴² The word substantial still limits the reach. The Code's drafters expected it to keep attempt liability, with its heavy penalties, from attaching to relatively remote preparatory acts, so a trivial step does not count even when the defendant's purpose is plain.⁴³

The line falls much earlier than dangerous proximity would put it, and modern law reflects that: the substantial-step language appears in the great majority of recodified attempt statutes, and courts in several jurisdictions have adopted it without one.⁴⁴ In People v. Gibson, a prospective burglar apprehended in an alley with burglar tools was convicted of attempted burglary even though he had not yet decided which building he would burglarize.⁴⁵ Under a proximity test that defendant would face the objection that he was far from entering any particular building. In Young, a state court weighed the competing approaches, set aside the proximity, probable-desistance, and equivocality approaches, and chose the substantial-step test as clearer, sounder, more practical, and easier to apply across varied facts.⁴⁶ It then found attempted armed robbery proved on what the police had watched develop: Young cased banks in a manner unusual for law-abiding people, parked behind the bank he apparently meant to rob, disguised himself with an eyepatch, sunglasses, and a pulled-down knit cap, put on rubber surgical gloves, and wore on his belt a scanner tuned to a police bank frequency.⁴⁷ He had not entered the bank, yet his conduct showed a plan well under way.

The second requirement guards against the cost of drawing the line so early. Under § 5.01(2), conduct cannot be a substantial step unless it is strongly corroborative of the actor's criminal purpose, and the federal formulation adopted in United States v. Mandujano states the same idea as conduct strongly corroborative of the firmness of the defendant's criminal intent.⁴⁸ The reason follows from how early the line falls. When a defendant has done little, that conduct is often the main objective evidence that a crime was ever intended, and an act that fits an innocent plan as well as a criminal one proves almost nothing about purpose. Convicting on such an act risks punishing someone who never settled on the crime, and the risk grows when a doubtful confession is allowed to fill the gap.⁴⁹ Corroboration restores the reliability that an earlier line gives up: the less the defendant has done, the more that conduct must reveal about the defendant's resolve. The Code does not require a finding that the actor would probably have desisted before completing the crime, since it asks whether firmness of purpose is shown.⁵⁰ It also allows the conduct to be assessed in light of the defendant's own statements, so a purchase that is ambiguous alone can gain meaning from what the defendant said about it.⁵¹

In the Nero facts both requirements point toward liability. Assembling every material the arson requires is a large advance in the plan, and because nothing innocent explains the collection, it strongly corroborates the purpose. A proximity test would likely reach the opposite answer, since much remains to be done before the building burns, which is why the example measures how much earlier the Code reaches. In the mask facts the second requirement does the defeating work, because a step that is debatable as an advance and ambiguous as evidence cannot carry an attempt conviction. The added statement shows that corroboration is a question about the whole picture, so an act that is weak alone can become strong when read with evidence of what the actor planned.

Step four decides most contested cases, because by the time the police intervene a defendant has usually done something that looks like a step. Students lose this issue when they stop after finding an act and never ask what else the conduct could mean. Step three matters in the other direction: a defendant whose purpose is plain still escapes attempt liability under this route if the act is only a remote preparation, and the question becomes whether another subsection reaches the facts.

The corroboration requirement is easier to apply once the kinds of conduct the Code itself singles out are in view. Section 5.01(2) lists categories of conduct that are not to be held insufficient as a matter of law if strongly corroborative of the actor's criminal purpose, and the next section takes them up in groups, starting with conduct aimed at the victim.⁵²