Theory: The law should see to it that we do not do harm, but not see to it that, in the absence of a specific duty, we do things to prevent harm. There are notions of individualism inherent in our society – you don’t bother me, and I don’t bother you. With omissions, it is more difficult to ascertain mens rea and causation than in direct action.
MPC §2.01(3) Liability for the commission of an offense may not be based on an omission unless
(a) The omission I expressly made sufficient by law defining the offense; or
(b) a duty to perform the omitted act is imposed by law.
Duty comes from statutory duty or common law duty:
A duty to care exists (parents, etc.)
Relationship causes a duty (fiduciaries such as lawyers, doctors)
parent, guarding or other person supervising welfare of a child under 18 endangers welfare by violating a duty of care protection, or support.
MPC § 212.4 Interference with custody – knowingly or recklessly taking child from custody of parent/guardian.
Affirmative defense under law – belief that action was necessary to protect child from danger (or child over 14 was taken away at ist own instigation w/o enticement and w/o criminal purpose)
Pope v. State: took mother and child home form church. Mother beat child to death but was exonerated because incompetent. was convicted of child abuse and concealment of a felony (murder of the child by its mother). Child abuse conviction was overturned because Pope had no legal duty to the child. Could have been accused of negligent homicide under MPC 210.4 and 2.03 (negligence). She could rightfully intervene in the mother’s custody under MPC 212.4 (interference with custody).
Jones v. U.S.: Convicted reversed. failed to provide for Anthony Green (friend’s baby), who died. Disputed as to whether or not Green lived with Jones, whether or not Green paid Jones to care for the baby. Jury instruction failed to suggest necessity to find duty of care.
People v. Oliver: met a drunk at a bar and took him to her house, where she provided him with a spoon at his request that he used to inject heroin. He passed out and she left, she later told her daughter to put him outside. Police found him dead of morphine poisoning. Convicted of involuntary manslaughter (jury instruction on negligent homicide). Appeals court ruled that by bringing him to her home, she acquired a limited duty to care and seek medical attention. Heroine use as an act involving definite potential for fatal consequences
XII.Attempts: actions after the formation of mens rea but short of the attainment of the criminal goal - imperfect or incomplete.
Inchoate attempts: the beginning of a crime (preparatory), but caught before it could occur.
failed attempts: complete but imperfect did final action, but for some reason it didn’t occur (e.g. fired but missed)
NOTE: Cannot be tried for a crime and attempt. Attempt is proven (and made irrelevant) by commission.
Justification of inchoate offenses
Deterrence – prevent future harm. Criminal law threatens sanctions in order to eliminate behavior.
Intervene early to prevent a harm from occurring (save a life)
People are actually culpable (mens rea)
Is it a legitimate function of criminal law to attempt to incapacitate dangerous people?
Attempt law is important a part of sword and shield:
Sword: identify people before they do something terrible
Last step doctrine: no attempt until the last step. If the punishment was the same for attempt (and crime because attempt to early), no incentive for abandonment.
(1) Definition of attempt:
(a) engages in conduct which would be a crime (if circumstances were as believed) [conduct crimes like drunk driving]
(b) does or omits to do something with the belief that it will cause a result w/o further conduct. [result offenses like murder, can be guilty of an offense that you believe will occur even if it’s not your purpose, e.g. planting a bomb to kill one that would have hurt others if it went off]
(c) purposeful act or omission constituting a substantial step in a course of conduct culminating in the crime. [could mean that substantial step is intracranial, could mean that there must be an action which is a substantial step.] NOTE: “under the circumstances as he believes them to be” eliminates impossibility defense.
(2) Substantial step – must be strongly corroborative of actor’s criminal purpose: (a) lying in wait, (b) enticing, (c)reconnoitering, (d) unlawful entry, (e) possession of materials (can serve no other lawful purpose), (f) possession/collection/fabrication of materials near site of intended crime, (g) Soliciting an innocent agent.
(3) Anyone who would be guilty under accomplice liability can be guilty of attempt if crime is not committed or attempted by the other person
(4) Defense of Renunciation if abandoned effor to comiit the crime, or otherwise prevented its commission, manifesting completel and voluntary renunciation.
No renunciation because of change in circumstances that make crime more difficult
Postponement is not renunciation
Comments on MPC
MPC could be read as an early intervention, aggressive statute. It puts emphasis about whether the actions are congruent with the actor’s attempts. Some ambiguity
Treats some inchoate crimes as crimes in themselves
Burglary (sec. 221.1) unlawful/unprivileged entry with intent to commit crime. Is this an end run around the law of attempt? Possession of burglary tools can’t prove burglary?
gun possession without a license? Is this also an inchoate offense? Ex-fellons cannot possess firearms
§ 5.02 – Criminal solicitation:commanding encouraging, or requesting another to commit a crime, (2) even if solicitation is uncommunicated, and (3) defense if solicitor finds actor and persuades him not to do it or other wise prevents the crime under circumstances manifesting complete voluntary renunciation of criminal purpose
§2.13 – Entrapment (defense):for purpose of obtaining evidence, official induces or encourages another person to engage in an offense b:
by making false representations designed to make person believe crime is legal.
by Using persuasion or inducement which create substantial risk that crime will be committed by those not ready to commit.
defense negated when crime involves causing or threatening bodily injury
MPC § 211.2 reckless endagerment: “conduct which places or may place another person in danger of death or serious bodily injury” – only a misdemeanor (relevant to AIDS cases)
Abandonment At what point is a criminal said to have abandoned his purpose and renunciated
View of abandonment defense depends upon deep assumptions about criminals:
People v. Johnston: robbed a gas station. Attendant produced $50, and J said “forget about it.” It seems that renunciation was due to the fact that there was less money than he wanted. ** Not a complete renunciation because it was only done due to circumstance**
McNeal forced a girl at knife point to accompany him to a house. She asked to be let go, and he did. Conviction upheld because woman’s plea was “unexpected resistance.” MPC does making crime “more difficult” mean physically difficult or psychologically difficult?
Incohate Attempt Cases:
U.S. v. Harper - sets a “bill trap” in an ATM, but cops get there before the repairman. is let off as not having taken a substantial step. MPC might view lying in wait as a substantial step. Conspiracy charge still stuck. Idea: the earlier the cops move in, the more chance that conduct is in fact innocuous.
People v. Rizzo:’s drove around while armed searching for a bookkeeper to rob payroll, apprehended before they found him. Acquitted because they had not found or the intended victim. We could redefine attempts to cover acts like this or get them for other crimes: stalking, loitering, etc. Could also redefine crime as prowling by auto or possession of a firearm with intent to commit a crime.
People v. McQuirter: Black man convicted of assault with attempt to commit rape. Victim noticed sitting in a truck. She claimed he followed her and hid behind a tree. Alleged confession, but says he was just debating about going to get his friend from a brothel. Conviction upheld. Racial implications – would a white man have been convicted in Alabama in 1953 – demonstrates the danger of attempt laws.
Completed Attempts: Smallwood v. State: overturns conviction of attempted murder for HIV positive man who raped women. P argued that was in essence “pointing a loaded gun” at his victims. The court ruled that death was not a natural and probable result, and there was no specific intent to kill here.
People v. Jaffe: ’s conviction for attempting to buy stolen goods is overturned, because the goods were not actually stolen. If one believes that the act is a crime, but it is in fact not, then there can be no attempt. (MPC § 5.01(1)(c) rejects impossibility defense).
People v. Dlugash: is guilty of attempted murder if he believes person is still alive, even if person is actually dead (no more impossibility defense). shot a man in the face while he was on the floor after he had already been shot. Trend is now moving away from impossibility defense.
U.S. v. Berrigan: Priest in prison during Vietnam though he was smuggling letters out of prison w/o warden’s approval, but the warden really knew. Impossibility defense worked here
U.S. v. Oviedo: Reversed conviction of attempt to sell heroine, because was really selling sugar – act he was actually attempting (sale of sugar) was no illegal.