Renunciation Versus Attempt Abandonment

Renunciation Versus Attempt Abandonment

The Model Penal Code gives the actor a renunciation defense for attempt and for conspiracy, and the two provisions use such similar language that they are routinely run together. For attempt, § 5.01(4) makes it an affirmative defense, meaning one the defendant must come forward with evidence to support, that the actor "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 For conspiracy, § 5.03(6) gives the defense only to an actor who, after conspiring, "thwarted the success of the conspiracy" under the same kind of circumstances.² Attempt doctrine is taught elsewhere, so this section takes from it only what the contrast with conspiracy requires.

The state-of-mind half of the two defenses is identical, because the Code defines voluntary and complete once for the whole of Article 5 and both provisions borrow those definitions. Renunciation is not voluntary if it is motivated, in whole or in part, by circumstances that were not present or apparent when the actor began and that increase the chance of detection or make the crime harder to accomplish. It is not complete if the actor merely postpones the crime until a better moment or shifts the effort to a similar target.³ A participant who flees when an unexpected alarm sounds, or who gives up one store in order to rob another next month, therefore fails under either provision. Since the motive inquiry is the same, what separates the two defenses is the act the actor must have performed: abandoning his own effort or otherwise preventing the crime for attempt, thwarting the success of the conspiracy for conspiracy.

The conspiracy standard is harder because of who controls the outcome. An attempter acting alone holds the whole crime in his own hands, so stopping himself ends the danger he created, and the Code can treat abandonment as enough. The attempt defense rests on two ideas: a complete and voluntary renunciation tends to show the actor was less dangerous than his conduct suggested, and the chance of escaping punishment encourages people who have already crossed the attempt threshold to stop.⁴ A conspirator who leaves holds no such control. The plan belongs to the group, and the danger conspiracy law targets is the combination itself, since joining in crime makes further crimes more likely and lowers the chance that the members will turn back.⁵ That danger survives one member's departure, so § 5.03(6) asks the renouncing member to thwart the conspiracy's success, which means making sure the members who remain do not succeed. A lone attempter can usually thwart the crime on his own, and that is why § 5.03(6) tracks the attempt rule in form, while a conspirator, to meet it, must stop other people as well. If every member renounces, they can in theory earn the same exoneration an attempter would, though each of them must still satisfy the voluntariness test.⁶

The common-law rules on the two offenses run in parallel, and the Code departs from both. The traditional common-law view treats abandonment as no defense to attempt once the actor has gone far enough to commit the offense with the required intent, on the theory that a completed offense cannot be undone by a change of heart, just as a thief who returns the stolen goods remains guilty of larceny.⁷ The same reasoning supports the common-law refusal to allow abandonment of a conspiracy, because that offense is complete once the agreement has been made.⁸ In People v. Staples the court applied the attempt version of that reasoning, holding that whether the defendant's abandonment was voluntary or forced was beside the point, because once an attempt is found there can be no exculpatory abandonment.⁹ Courts that decline to recognize the defense sometimes reach a similar result through the definition of the offense, by finding that the defendant never got beyond preparation.¹⁰ The Code's departure is therefore wide for attempt and narrower for conspiracy, since the conspiracy defense survives only for the member who thwarts the plan.

The friend's conduct, motive, and exit are identical in the two prosecutions, so the charge is the only fact that changes the result. Against the attempt charge, his abandonment of his own effort is exactly what § 5.01(4) rewards, and nothing further is demanded of him.¹¹ The provision also states that the defense does not affect the liability of an accomplice who did not join in the abandonment or prevention, which is why the burglar's exposure is untouched.¹² Against the conspiracy charge, the same exit leaves the burglar able to finish the job, and § 5.03(6) asks whether he stopped that from happening.¹³ His notice to the burglar does end his membership, so her later acts no longer bind him, but he remains liable for the agreement he already made.¹⁴ Students lose this issue when they treat quitting as enough for both charges, because abandoning one's own effort satisfies the attempt provision while the conspiracy provision calls for a thwarted plan, as when a timely report to the police stops the others.¹⁵