Attempt Must Come First

Attempt Must Come First

Abandonment can matter only after an attempt has been committed, so the existence of an attempt is the first fork in every problem on this topic. The reason lies in what kind of defense renunciation is. It belongs to the group of defenses that apply when the actor has apparently satisfied every element of the offense charged, yet some feature of the situation shows that the harm the statute targets was never caused.¹ A defense of that kind has nothing to excuse when an element is missing, because the prosecution has already failed on its own case. Courts therefore work in two steps. They first ask whether the facts show both an intent to commit the target offense and an act in furtherance of that intent that goes beyond mere preparation. Only if both are present do they ask whether a change of heart can ever be a defense and whether this one qualifies.²

Both elements have settled meanings. An attempt is an overt act, meaning an outward step that can be observed, done with the intent to commit a crime but falling short of completing it.³ The act must go beyond mere preparation, which covers the planning, arranging, and gathering that come before any effort to carry the crime out. The Model Penal Code frames that line as a substantial step. An actor who has the culpability the target crime requires is guilty of attempt when he purposely does or omits something that, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in the crime.⁴

The Code adds a safeguard that explains why this step filters so effectively. Conduct is not a substantial step unless it is strongly corroborative of the actor's criminal purpose.⁵ The practical reason is that a bad thought, or an ambiguous act with an innocent explanation, proves little about whether the person truly means to commit the crime, and punishing on that basis would reach people who have only loosely planned or merely contemplated an offense. The Code then lists conduct that, if strongly corroborative, cannot be held insufficient as a matter of law. The list includes enticing the intended victim to the place of the crime, reconnoitering that place, collecting materials near it that serve no lawful purpose, and soliciting an innocent agent to perform an element of the crime.⁶ A listed act does not itself establish an attempt; it only cannot be dismissed as legally too remote.

The facts of People v. Staples show a defendant on the attempt side of the line. Staples, using an assumed name, rented an office directly above a bank vault, knowing the building's layout, and moved in drilling tools, acetylene tanks, and a blowtorch. He then drilled several holes part way through the floor on a day when the building would be empty, covered them with a rug, and locked his tools in a closet. Afterward he told police that once the plan was under way a fugitive's life on stolen money seemed unappealing and his role as a bank robber increasingly absurd.⁷ Gathering drilling equipment at the very place of the planned crime and starting to breach the floor goes well beyond preparation, so the abandonment question was live. The court inferred that he stopped because the landlord had retaken control of the office and handed his equipment to the police. It added that whether the stopping was prompted by conscience or by discovery was not controlling, because once the acts had reached the stage of an attempt there could be no exculpatory abandonment.⁸

The opposite pole shows the filter working. In Bucklew v. State a mayor signed a car repair bill that would have authorized the city to pay his personal expense but never submitted it to a clerk for payment. The court held he could not be convicted of attempted embezzlement, because he had stopped before any overt act and so had stayed within preparation.⁹ Nobody needed an abandonment defense there, since the prosecution had no attempt to begin with, and some courts reach similar results on facts that look like a change of heart simply by finding that the line was never crossed.

A change of heart can also operate earlier, at the element of intent itself. When a defendant stops, the stopping can raise a reasonable doubt that the criminal purpose was ever fixed, so that what looked like a plan was only provisional.¹⁰ The same reasoning applies to remote acts. Where the only act alleged is distant from the crime, that fact weighs in deciding whether the firm criminal intention the prosecution alleges really existed.¹¹ Both points concern whether the elements were proved, which is a different inquiry from whether a defense excuses an attempt that has been proved. Students lose this issue when they invoke abandonment before establishing that an attempt exists.

This ordering explains why the abandonment doctrine is narrow. It operates only in the window after the preparation line has been crossed and before the target crime is complete, and the elements already screen out everything earlier. Courts that deny any abandonment defense often place the attempt line close to the final act, so that people keep room to repent before liability attaches.¹² The Model Penal Code draws the line farther from the final act by making a substantial step enough, which enlarges the group of people who have committed an attempt and sets up the choice taken up next, between treating a later change of heart as irrelevant and treating it as a defense.¹³ Even where the defense exists, it is applied stringently, and few reported cases show a defendant prevailing on it.¹⁴