The Model Penal Code Defense

The Model Penal Code Defense

The Model Penal Code replaces the common-law rule with a defense. Section 5.01(4) provides that when the actor’s conduct would otherwise constitute an attempt under subsection (1)(b) or (1)(c), it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.¹ The Code’s name for the idea is renunciation of criminal purpose, and the words abandonment and withdrawal are often used for the same thing.² This section covers how the defense is built, where courts have adopted it, and the reasons that led the Code to depart from the traditional rule. The precise meaning of the two qualifying words, complete and voluntary, waits for the next section.

The Text and Its Scope

The defense begins where the first section’s filter ends. Its trigger applies only when the actor’s conduct would otherwise constitute an attempt, which concedes that the prosecution has proved the culpability and the act the attempt offense requires.³ A defendant who never moved past preparation has no need for renunciation, because no attempt exists to excuse. Renunciation belongs to the class of defenses that accept every element as satisfied and contend that the actor has nonetheless not caused the harm the offense exists to prevent.⁴ It does not deny any element, a point the Rhode Island Supreme Court made in State v. LaTraverse when it observed that voluntary abandonment, as it viewed the doctrine, negates no element of the offense.⁵

The text then states the conduct the defendant must show. The actor must have abandoned his effort to commit the crime or otherwise prevented its commission.⁶ The first route fits an actor who simply stops pressing forward. The second route fits an actor who has already set events in motion and must act to keep the crime from occurring. How far each route reaches depends on the qualifying words covered in the next section and on the last-step limit that follows them.

The text also confines the defense to attempts under subsection (1)(b) or (1)(c).⁷ Subsection (1)(c) is the substantial-step attempt discussed earlier in this chapter, and subsection (1)(b) covers a result crime in which the actor does or omits something with the purpose of causing the result, or with the belief that it will occur, without further conduct on his part.⁸ Subsection (1)(a), which reaches an actor who purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be, is absent from the defense’s trigger.⁹ The text supplies no explanation for the omission, so the sound practice is to read the defense as written and to check which subsection an attempt charge rests on before invoking it.

A proviso completes the text. Establishing the defense does not affect the liability of an accomplice who did not join in the abandonment or prevention.¹⁰ The defense credits one person’s change of purpose, so an accomplice who kept the original purpose has shown nothing that would rebut the inference of firm purpose the attempt itself supplies. A later section returns to accomplices and to how stopping is treated in conspiracy and solicitation.

Who Must Prove It

Because the Code labels renunciation an affirmative defense, the burden of raising it rests on the defendant.¹¹ An affirmative defense is one that the defendant must put in issue and support with evidence after the prosecution has made its case. Courts that follow the Code typically require the defendant to establish it by a preponderance of the evidence.¹² In LaTraverse the court gave the defendant the opportunity, and the burden, of showing that he had voluntarily and completely abandoned his criminal purpose when he turned his car around and drove away from the victim’s home, and it perceived no constitutional limit on that allocation because the defense negates no element.¹³ The allocation tracks who holds the information. Only the defendant knows why he stopped, and without a burden on the defendant the prosecution would have to disprove a genuine change of heart in addition to proving the attempt itself.

The same facts therefore produce a factual question in a Code jurisdiction and a legal dead end at common law. The factfinder’s task under the Code is to decide whether the account is believable and whether the surrounding circumstances fit it, which is why the requirements in the next section focus on the reasons for stopping.

Where Courts Have Adopted It

Courts have reached the Code’s defense by decision as well as by statute. In State v. LaTraverse the Rhode Island Supreme Court declined to add to the debate over where preparation ends and attempt begins and adopted the approach of section 5.01, quoting its renunciation provision.¹⁴ It then explained that its sole motivation for recognizing the defense was the hope that individuals will desist from their criminal designs, which reduces the risk that the intended crime will occur, and it remanded so the defendant could try to prove his abandonment.¹⁵ In People v. Kimball the Michigan Court of Appeals likewise drew on the Code’s commentary in recognizing the defense.¹⁶ In various federal cases the doctrine appears to have been recognized, expressly or implicitly, and various state legislatures and courts have accepted it.¹⁷ Most revised state codes contain a renunciation defense substantially similar to the Code’s.¹⁸

The picture is not uniform, however. One survey concluded that the question remains open in most jurisdictions, and in some states the decisions cannot be reconciled.¹⁹ Where a legislature has defined attempt without mentioning abandonment, a court may refuse to supply the defense. The Wisconsin Supreme Court in State v. Stewart acknowledged the modern trend and the Code’s provision, yet concluded that if the legislature had intended voluntary abandonment to be a defense it would have said so, and it left the policy argument to the legislature.²⁰ Even where the defense exists it is applied stringently, and few reported defendants have prevailed on it.²¹ An exam answer should therefore state which rule the jurisdiction follows before applying either one.

What adoption changes is visible on the facts of People v. Staples. The court there inferred that the defendant stopped because the landlord had retaken the office and handed his equipment to the police, treated that as the equivalent of interception, and held that the character of the stopping did not matter once an attempt existed.²² Had Staples’s abandonment been a real change of heart, uninfluenced by outside events, the Code would recognize a defense on those facts, a result the common-law rule withholds.²³ Two variables therefore control the outcome, the rule the jurisdiction follows and the reason the defendant stopped. On the actual facts the second variable defeats Staples even under the Code, because renunciation motivated by circumstances that increase the probability of detection, and that were not present or apparent when the course of conduct began, is not voluntary.²⁴

Why the Code Allows It

The Code’s case for the defense has two parts, and each does its work at a different stage of the attempt. The first concerns what an attempt reveals about the actor. The rules that separate preparation from attempt exist because early conduct does not show that the actor’s purpose is firm, and crossing the line supplies a prima facie showing that it is. A complete renunciation lets the defendant rebut that showing by demonstrating that the purpose was not firm after all, which removes the dangerousness that justified punishment.²⁵ This reason carries the most weight early in the attempt, when a short effort followed by a genuine retreat reveals little about the actor’s character.

The second part is an incentive. An actor who has gone far enough to be guilty of attempt, and who knows that nothing he does afterward can reduce his liability, has no personal reason to stop, since continuing at least offers the chance of reaching the goal. A defense gives that actor a reason to stop while the crime can still be avoided, and the reason matters most near the end, when the risk to the victim is highest. The Code observes that at the very point where abandonment tells the least about the actor’s dangerousness, after the last proximate act but before the harm occurs, the inducement to desist is worth the most.²⁶ The two reasons divide the territory, with dangerousness explaining the defense early and desistance explaining it late, and the Code concluded on balance that together they outweigh the net dangerousness shown by an abandoned effort.²⁷

The principal objection points the other way. If a criminal effort can be undone without penalty, a would-be offender may be more willing to take first steps, so the defense might increase the number of efforts begun. The drafters answered with two points. The defense is unavailable to an actor whose purposes are frustrated by outside forces before there is a chance to abandon, so a first step carries no guarantee of a safe exit.²⁸ The added encouragement would also matter only to an actor who is already doubtful about the plan, and for whom the probability of continuing was therefore not great.²⁹ A related worry is that a caught defendant will invent a conversion. The burden on the defendant and the focus on the reasons for stopping give the factfinder something to test, and the risk that false claims will succeed is generally thought slight.³⁰

The defense also fits the Code’s definition of attempt. By making a substantial step enough, the Code reaches conduct farther from the final act than the traditional tests do, which gives the police room to intervene before a defendant comes dangerously close to the crime.³¹ A late attempt line leaves the defendant room to repent, since guilt does not attach until the effort is nearly finished, and an early line takes that room away unless the law supplies it another way.³² The renunciation defense is one way to supply it, because a defendant who has crossed the early line can still earn acquittal by genuinely repenting.

The defense has conditions beyond the fact of stopping. The Code requires that the renunciation be complete and voluntary, and it defines both words to exclude the actor who stops because circumstances have made detection more likely or success harder, and the actor who merely postpones the crime or shifts to another victim.³³ Students lose this issue when they treat stopping alone as enough. The next section takes up the two requirements, and the section after that addresses the added difficulty of abandoning an attempt at its last stage.