Introduction

Abandonment of an Attempt

Introduction

A person who has decided to commit a crime sometimes takes real steps toward it and then stops. The tools have been bought, the trip to the scene has been made, and the act itself has begun, when fear, pity, or a simple change of plans intervenes. At that point the prosecution can already prove everything attempt requires: the intent to commit the target offense and an act that goes beyond mere preparation. What the later decision to stop does to that liability is the problem this chapter addresses, and the answer depends on which of two rules the jurisdiction follows.

The traditional common-law majority rule gives the harsher answer. Once the defendant, acting with the required intent, has crossed from preparation into an overt act that constitutes an attempt, abandonment or withdrawal is no defense.¹ The reasoning follows from the structure of the offense. Attempt is complete at the moment the line is crossed, so a later change of heart leaves the earlier crime standing, much as a thief who returns the goods has still stolen them. The Model Penal Code takes the opposite position. Section 5.01(4) makes it an affirmative defense, meaning one that matters only after the prosecution has proved the elements and that the defendant must raise, that the actor abandoned the effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of criminal purpose.² The Code's rule also gives an actor who has already crossed the line a reason to stop, because under the common-law rule stopping earns nothing.

The vocabulary here is loose, so it helps to fix it early. Renunciation is the Model Penal Code's word for a complete and voluntary abandonment of criminal purpose before the crime is carried out, and courts and commentators use withdrawal and abandonment for the same idea.³ Because jurisdictions split on whether any such defense exists, you must be able to analyze a set of facts under either rule. The chapter proceeds in that order: it first confirms that an attempt exists at all, then teaches the common-law rule, then the Model Penal Code defense and what it demands of the actor, and finally how stopping works in neighboring offenses where the rules differ. The place to begin is the threshold question of why abandonment can only arise after every element of attempt has been met.