#11427 - Attempt - Criminal

ATTEMPT

1. Inchoate crime

2. purpose of punishment

   1. deterrence

      1. does this really deter more than punishment in place for crime completion?

      2. There may be a lot more criminal behavior without punishing attempt – my odds of going to jail changes if 60% of robberies fail and there’s no punishment for attempt

   2. Moral blameworthiness

      1. If you have the MR, it would be ridiculous to focus on luck in sentence determination

   3. Utilitarianism

      1. Gratifies a wide public feeling – public outrage, soothing the beast

   4. Incapacitation

      1. Given your social tendencies, you might still attempt the crime again if we say no harm no foul

   5. Rehabilitation

      1. Maybe you have some problem so there is a reason to punish you for attempting (possibly paternalistic)

   6. Practicality

      1. If attempt not criminalized, it would be harder for law enforcement to prevent crime

      2. Couldn’t be arrested fo ‘attempt of murder’ when you pull your gun

3. Why more lenient sentencing?

   1. Magnitude of the harm is different. You’ve actually caused a harm to society when you follow through with the act

   2. Matter of luck?

      1. Counterweight to luck inherent in society – some people born in certain positions. Gives lenience to the unlucky people who happen to be lucky enough not to hurt people in these cases.

      2. Rough way of equaling out social injustices that got these people here in the first place

   3. Best measure of moral blameworthiness is the completed harm itself

      1. And we have enough trouble with that (ex: causation)

      2. Mayber person performs poorly because of subconscious conflicting feelings

   4. Exception

      1. Attempted drug crimes are punished the same as completed drug crimes

4. Attendant circumstances

   1. In MPC: (commentaries): you need only act with respect to the ACs with same MR as required to complete the offense. So if statutory is strict liability offense with repsect to age, it is strict liability with respect to intent.

5. MPC 5.01

(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or

(c) Purposefully does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step…

6. MR: MUST HAVE REQUISITE INTENT

   1. Smallwood v. State (1996) – D rapes 3 women, knowing he has HIV. State likens HIV positive status to a deadly weapon, analogous to firing loaded firearm at a person.

      1. State v. Raines (1992) – found intent to kill when man shot loaded gun through drivers window, hitting driver’s head.

      2. Held: Specific intent to kill is necessary.

         1. All acts are explainable by intent to rape only

         2. Maginute of risk to which V is knowingly exposed is not certain

         3. State has not provided sufficient evidence to show that death by AIDS is the probable result, to the same extent it was in Raines

   2. Generally, must intentionally engage in the conduct and intend the result (where the completed crime is a “result” crime)

      1. But if conduct has really high probability of causing result, jury can infer intent

         1. Some jxns (MPC) say ‘belief’ that result will occur is enough

   3. Even if there is a low probability or imposible result, it can still be attempt if they have intent to cause result and took steps that would have constituted offense if AC were as D believed

   4. Excusing/justifying circumstances still apply (e.g. heat of passion)

   5. Only a few jxns have

      1. Attempted reckless manslaughter or

      2. Attempted felony murder

         1. Both of which allow attempt liability on a MR less than “intent”

   6. Need to “intend” attendant circumstances

      1. Some jxns require recklessness for AC

      2. MPC and majority: same MR as completed offense

7. Specific v General intent

   1. MPC literally says belief is sufficient

   2. Common law would infer purpose, but purpose is still required as to result under common law

      1. Hypo: Betty, in order to destroy a competitor’s experimental aircraft, plants bomb on the plane and sets it to explode in midair, knowing that the pilot will be killed (but having no particular desire to kill the pilot). Bomb fails to explode. Attempted murder?

         1. MPC: definitely

         2. Common law: yes, probably. But thy will infer purpose, based on “high magnitude of risk” as described in Smallwood

8. AR: Level of commission

   1. Policy

      1. The earlier in the process, the more ambiguous things like content/intent becomes (false positives)

      2. Gives more discretion to prosecutors/police/etc

      3. Need to find sweet spot where its early enough to catch prior to the completed crime, but late enough to not convict pure thoughts

   2. McQuirter v. State (1953) – pg 558: black man charged with harassing white woman and her kids. Very different testimonies, but police submit testimony that he intended to rape her. He says he was just waiting around, making up his mind to go to the “front” or not.

      1. Held: In determining question of intention, jury should consider social conditions and customs founded upon racial differences

      2. Court does not give test for determining when acts turn into a crime – absolute no accuracy here

   3. Substantial Step test

      1. MPC: 5.01(1)(c)

purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step … unless it is strongly corroborative of the actor's criminal purpose.

2. Outlier case, could be described as “first step test.”: R v. White (1910): administering first dose of slow-poisoning was enough to amount to attempted murder – completion of one of series of act was enough to show attempt.

3. 18 USC 2113 – Bank Robbery: Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, D’s actions must demonstrate that the crime will take place unless interrupted by independent circumstances

   1. United States v. Hofus (2010): Jurors do not need to agree unanimously as to which particular actions constituted a substantial step toward the commission of a crime

4. United States v. Jackson (1977) – pg 565: Ds conspire to commit armed robbery. First time, they abandon because too many customers. Tools = sawed off shotgun, shells, masks, handcuffs.

   1. Held: 2 prong test: 1) D must act with kind of culpability otherwise required for the commission of the crime which he is charged with attempting; 2) D must have engaged in conduct which constitutes a substantial step toward the commission of the crime.

      1. Substantial step = conduct strongly corroborative of firmness of D’s criminal intent

      2. It was clear that men were seriously dedicated to the crime

5. Harper: Bill trap likely qualifies this test, but not the others.

4. Equivocality test: we look at acts themselves and they show some kind of intent

   1. Not popular. More traditional

   2. Res Ipsa Loquitur: the thing speaks for itself.

      1. Buying matches + intent = not enough

      2. Must look at the act on its face (lighting near a haystack)

   3. Backward looking: looks at what you’ve already done, not what you’re going to do

   4. Booneville v. Mendecino county: Man threatens to kill another at a post office. Later that day, goes to a field where the person is, carrying a rifle. Gets arrested before lifting the rifle.

      1. CA: doesn’t pass equivocality test

5. Danger of proximity test: whether it looks like the crime is definitely going to be committed but for timely interference

   1. Forward-looking: how far you still have to go.

   2. 9th circuit test

   3. Pros

      1. At least it’s not the last step

      2. Gives D maximum chance to redemption

      3. Early enough to save the victim

      4. No false positives, probably

   4. Cons

      1. Maybe false negatives – not punishing people who are clearly dangerous or whose intent...