Applying Both Approaches

Applying Both Approaches

The common-law rule and the Model Penal Code defense give opposite answers to the same question, so an exam answer needs a fixed order of operations rather than two rules held side by side. The order begins before either rule comes into play, because abandonment is a question only once an attempt exists. A defendant who lacked the required intent, or who never moved beyond preparation, is not guilty of attempt, and a claim of abandonment then has nothing to operate on.¹ Courts sometimes dispose of a repentance claim this way. In Bucklew v. State a mayor signed a car repair bill that would have illegally put his personal expense on the city but never submitted it for payment, and the court held that he had stayed within preparation and so could not be convicted of attempted embezzlement.² That outcome never touches the abandonment rules, which is why the attempt question comes first.

Once an attempt is established, the next filter picks the rule, and the choice matters because the two rules settle the same trade-off in opposite directions. The majority and traditional rule denies the defense once the actor, with the required intent, has crossed from preparation into an overt act constituting an attempt.³ The reasoning treats the attempt as a finished offense that later conduct cannot erase, in the way that a thief who returns the stolen goods is still a thief.⁴ The Model Penal Code accepts some leniency in return for desistance: when the conduct would otherwise be an attempt under the result-causing or substantial-step provisions, abandoning the effort or preventing the crime, under circumstances showing a complete and voluntary renunciation, is an affirmative defense.⁵ The drafters defended that bargain on the ground that an early renunciation shows the actor was not firmly dangerous and that the prospect of escaping liability encourages an actor deeper into the attempt to stop.⁶

Neither rule can be assumed. The status of the defense is unsettled in many jurisdictions, and in some states the decisions cannot be reconciled with one another, so a sweeping claim about which jurisdictions follow which rule is unsafe.⁷ The stem is the best guide. A question that places the facts in a jurisdiction recognizing renunciation of criminal purpose, or that asks whether a renunciation was voluntary and complete, calls for the Code analysis, while a question that describes traditional common-law doctrine, or asks only whether the attempt was complete, calls for the majority rule. When the stem gives no signal, state the traditional rule as the majority position, apply it, and then show how the Code would treat the same facts.

Because the Code defense is an affirmative defense, the defendant must come forward with evidence for it and generally must establish it by a preponderance of the evidence.¹² State v. Latraverse shows how the choice of rule changes the posture of identical conduct. The trial justice rejected the abandonment claim by relying on Wiley v. State, which held that voluntary abandonment after an overt act is no defense because the attempt is already a crime, and the reviewing court agreed that the trial justice could not be faulted for following that principle.¹³ The reviewing court nonetheless adopted the Code's approach and gave the defendant, who had turned his car around and driven away from the scene, a hearing at which he could try to prove that he had voluntarily and completely abandoned his purpose that evening.¹⁴ Under the Wiley rule those facts would have ended the inquiry, while under the Code they open the voluntariness and completeness questions.

People v. Staples supplies a single set of facts that can be run through both branches. The defendant rented an office under an assumed name directly above a bank vault, brought in drilling tools, acetylene tanks, and a blow torch, and on a Saturday, when the building was empty, drilled several holes partway through the floor and covered them with a rug.¹⁵ After his arrest he told the police that starting the plan had shown him that a fugitive's life on stolen money held no appeal, and that his life as a bank robber seemed more absurd once his wife came home.¹⁶ The court treated the drilling as crossing the line from preparation into attempt, so the first filter is satisfied.¹⁷ Under the common-law rule the analysis ends there, because once an attempt is found the court held that there can be no exculpatory abandonment, whether the withdrawal came from a change of heart or from outside pressure.¹⁸ His statement about his wife therefore has no legal effect on the charge.

Under the Code the same facts take more work, because the reason for the stop is now the question, and the court's own inference supplies the answer. The trial judge could conclude that Staples learned that the landlord had retaken control of the office and handed his equipment to the police, which the court regarded as the equivalent of an interception.¹⁹ A circumstance of that kind was not present when the course of conduct began and it increased the probability of detection, so a renunciation it motivated, even in part, is involuntary.²⁰ That in-part language means the stated change of heart cannot rescue the defense when discovery contributed to the decision. Completeness and the last-step limit never need an answer, since the first Code question has already defeated the defense, and the holes were only partly drilled, so a free stop would have counted as abandoning the effort.

The same pattern appears in a short case where the two rules plainly agree. In Stewart v. State the defendant pulled a gun on a gas-station operator and asked for his money, then left when a police car drove into the station.²¹ Courts treat a departure like that as involuntary, because the arrival of police is a circumstance that raises the risk of apprehension.²² The traditional rule would convict without asking why he left, and the Code would convict because the reason fails the voluntariness requirement.

Both rules therefore convict Staples and the gas-station defendant, for different reasons: one denies the defense outright, and the other denies it because the facts fail its first requirement. The rules part company only when the stop is genuine. Had Staples's abandonment been truly voluntary, with no extrinsic circumstance influencing him and a real change of heart behind it, the Code would recognize the defense and the traditional rule would still convict.²³ Students lose this issue when they credit a sincere statement of remorse without checking what else prompted the stop, since the statement is irrelevant under the traditional rule and helps under the Code only if no outside circumstance contributed.