Why the Rule Eroded

Why the Rule Eroded

Merger of attempt into the completed felony had a reason, and that reason is what made the rule fragile. The earlier sections gave the rule two supports, one procedural and one substantive, and only the procedural one depended on the gap between how felonies and misdemeanors were tried. The conspiracy cases state that procedural support most plainly. Conspiracy merged for the same reason attempt did, so those cases serve here as an analogy for what happened to attempt. In Callanan v. United States (1961), the Court explained that the early common law merged conspiracy, a misdemeanor, into the felony it aimed at because of significant procedural distinctions between the two grades. A misdemeanor defendant was entitled to counsel and a copy of the indictment, those advantages were unavailable on trial for a felony, and so no conviction of the constituent misdemeanor was permitted on an indictment for the felony.¹ The rule, in other words, grew out of a mismatch between two procedural tracks, and it could last only as long as the mismatch did.

Once the mismatch closed, little remained to support the rule. Callanan observed that as those procedural niceties disappeared, the merger concept lost significance and had been abandoned as to conspiracy.² The treatment of conspiracy elsewhere reaches the same conclusion: because the original justification for merger no longer exists, the doctrine has been abandoned, and a conspiracy and the crime that was its object are separate offenses.³ Punishment follows the same logic. At common law the misdemeanor label carried a lighter exposure than the felony label, so letting the felony conviction absorb the misdemeanor cost the law little. Where a statute prescribes the penalty for attempt directly, the label settles nothing about exposure, and the old reason for absorbing the lesser grade has little left to rest on.

Two reform steps mark the erosion as it applies to attempt. England acted first, and the discussion in United States v. York records that the English merger rule was erased by statute in 1851.⁴ In 1978 the Fifth Circuit, in a case involving federal attempt law, traced the common-law roots of attempt and declined to incorporate the merger rule into federal statutory offenses.⁵ York reasoned that the assumption that only a failed attempt may be condemned descends from the old merger rule, and that the rule's rationale is undermined when the attempt and the completed crime are both misdemeanors or both felonies. With England having abolished the rule long before, the court concluded that "there is no reason to apply it in this country a century and a quarter later."⁶ That discussion reaches us through Berry v. State, a Wisconsin decision that quoted York and treated its reasons for rejecting merger as cogent ones that applied equally to the case before the Wisconsin court.⁷ Berry's own holding concerns whether failure to complete the crime is an element of attempt, a question the modern-rule section takes up, so its value here lies in preserving York's account of why the old rule lost its footing.

The erosion was selective, because only part of the old doctrine lost its reason. York declined to carry the grade-based merger rule into federal statutory offenses, and the same decision is cited for the proposition that, even in jurisdictions that allow convictions of both conspiracy and the completed crime, the same is not true of attempting and completing a crime.⁸ Statutes to that effect are not uncommon.⁹ The surviving bar outlived the grade rule because it never depended on grade. An attempt consists of the intent to commit the crime and some acts in furtherance of that intent.¹⁰ The completed offense contains that same intent and those same acts, together with the result, so a second conviction for the attempt would condemn the same intent and the same acts twice. The procedural support for merger expired with the procedural gap, and the overlap between attempt and completion remained to carry a narrower rule.

The exam trap is to reason that, because merger has been abandoned, nothing prevents convictions for both. The bar on double conviction survives the death of the grade-based rule, because it rests on the overlap between attempt and completion, which exists at every grade. The doctrine that was abandoned is the old absorption of a misdemeanor into a felony, and the doctrine that remains is the narrower prohibition on counting one course of conduct twice. The next section states that surviving rule as the modern law of attempt.