8 Chapter Eight: Inchoate Offenses

Sections in Chapter 8

Introduction
Impossibility
Renunciation or Abandonment
Enforcement Powers, Enforcement Choices

Introduction

The previous three chapters have focused on different types of crime, but they share the same basic model of criminal liability: a statute defines conduct as criminal, and liability requires proof of (or the defendant’s admission to) all elements of the crime. This chapter and the next examine an array of doctrines that expand criminal liability to reach persons who plan, begin, encourage, or assist criminal activity without necessarily completing all elements of the target crime. These doctrines of expansion can be roughly divided into two categories, but there is some overlap between the two. First, the term inchoate offenses is often applied to crimes of beginning-but-not-finishing: persons who begin conduct designed to complete a crime, but then fail to complete all elements of the target crime, might be liable for an inchoate offense such as attempt [to commit x offense] or solicitation [to commit x offense]. For example, if I plan a bank robbery and drive to the bank with masks and guns, but then I am prevented from entering the building by savvy security guards, I may be liable for attempted bank robbery. Second, doctrines of group criminality, such as accomplice liability, allow persons to be convicted and punished based in part on the actions of other persons. If I provide support and encouragement to someone who commits bank robbery, accomplice liability could allow me to be convicted of the crime of bank robbery, even if I never set foot in a bank or took any money.

Again, there is some overlap between doctrines of inchoate offenses and doctrines of group criminality, and neither category is crisply defined. The term “conspiracy” can be especially confusing, since it is used to describe both an inchoate offense (e.g., conspiracy to distribute narcotics) and a doctrine of group criminality that allows one member of a conspiracy to be punished for offenses committed by another member of the conspiracy. This chapter focuses on the inchoate offenses of attempt and solicitation. Conspiracy in both senses just described will be addressed along with accomplice liability in the following chapter.

Like several of the offenses we have already studied, such as assault, murder, or burglary, the concept of a criminal attempt originated in common law courts but is today usually defined by statute. We will see two different kinds of attempt statutes in this chapter. Some attempt statutes refer to a specific type of criminal conduct. For example, the first case in this chapter concerns a prosecution under a statute that makes it a crime to attempt to commit a federal drug offense. But most American jurisdictions also have a general attempt statute that does not refer to any specific offense or category of offenses. A general attempt statute makes it a crime to attempt to commit any act designated as criminal elsewhere in the law. If a defendant is prosecuted under a general attempt statute, the prosecution will also need to identify which other offense—sometimes called “the target offense”—the defendant was attempting to commit. After the first case of this chapter, all the other cases involve prosecutions under general attempt statutes (in conjunction with the statutes that define the relevant target offense).

Attempt doctrine is thus usually “trans-substantive,” in that the general definition of an attempt can be paired with any type of criminal conduct. This chapter and the next do include several more cases on drug crimes, however, since inchoate offenses (and group criminality) are widely used in that context. But it is important to remember that a general attempt statute can be paired with almost any kind of offense. This chapter also includes one case involving attempted murder charges and one involving attempted distribution of pornography.

We have seen often the claim that a criminal conviction requires proof of all elements of an offense. Do inchoate offenses subvert that principle by allowing conviction for defendants who satisfy some but not all elements of the underlying offense? One recurring concern about inchoate crimes is the worry that this category of offenses are more or less “thought crimes”—the defendant is punished for intending to engage in some criminal act, even though he did not in fact engage in the specified conduct. In an effort to avoid punishing people for thoughts alone (and assuming we can discern and “prove” those thoughts), courts have struggled at length to define the kind of conduct that is sufficient to prove an attempt. How a jurisdiction defines a criminal attempt can depend upon why it is choosing to define attempts as criminal; this chapter will explore some possible rationales for punishing attempts and other inchoate offenses. As you consider those questions, it is also important to consider ways in which expansions of criminal liability increase the discretion of state officials. With discretion comes the possibility of discrimination. The role of inchoate offenses in producing racial disparities in convictions and imprisonment is an important but neglected topic for which there is relatively little empirical data available. But in this chapter and the next, look for ways in which efforts to expand criminal liability and enforcement authority have created opportunities for racialized enforcement.

This chapter should give you a basic understanding of the concept of a criminal attempt, both as that term was defined at common law and as it is now typically defined in contemporary statutes. The chapter also explores the separate inchoate offense of solicitation, which is basically the crime of asking someone else to commit a crime. You should also learn two principles that are invoked occasionally as limitations on attempt liability – impossibility and renunciation. Finally, attempt doctrine will give you a chance to revisit the interactions among criminalization choices, enforcement choices, and adjudication choices. The last section of this chapter offers a case study to help you apply attempt doctrine and review earlier material. This concluding section also offers a chance to explore further the questions raised in the previous paragraph: how are inchoate offenses and related expansions of criminal law connected to patterns of racial disparity in the American criminal legal system?

A. Preparation, Solicitation, Attempt

21 U.S.C. § 846. Attempt and conspiracy.

Any person who attempts or conspires to commit any offense defined in this subchapter [drug offenses] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

UNITED STATES of America, Plaintiff-Appellee

v.

Roy MANDUJANO, Defendant-Appellant

United States Court of Appeals, Fifth Circuit
499 F.2d 370

Aug. 19, 1974

RIVES, Circuit Judge:

Mandujano appeals from the judgment of conviction and fifteen-year sentence imposed by the district court, based upon the jury’s verdict finding him guilty of attempted distribution of heroin in violation of 21 U.S.C. § 846. We affirm.

I.

The government’s case rested almost entirely upon the testimony of Alfonso H. Cavalier, Jr., a San Antonio police officer assigned to the Office of Drug Abuse Law Enforcement. Agent Cavalier testified that, at the time the case arose, he was working in an undercover capacity and represented himself as a narcotics trafficker. At about 1:30 P.M. on the afternoon of March 29, 1973, pursuant to information Cavalier had received, he and a government informer went to the Tally-Ho Lounge, a bar located … in San Antonio. Once inside the bar, the informant introduced Cavalier to Roy Mandujano. …Mandujano asked the informant if he was looking for ‘stuff.’ Cavalier said, ‘Yes.’ Mandujano then questioned Cavalier about his involvement in narcotics. Cavalier answered Mandujano’s questions, and told Mandujano he was looking for an ounce sample of heroin to determine the quality of the material. Mandujano replied that he had good brown Mexican heroin for $650.00 an ounce, but that if Cavalier wanted any of it he would have to wait until later in the afternoon when the regular man made his deliveries. Cavalier said that he was from out of town and did not want to wait that long. Mandujano offered to locate another source, and made four telephone calls in an apparent effort to do so. The phone calls appeared to be unsuccessful, for Mandujano told Cavalier he wasn’t having any luck contacting anybody. Cavalier stated that he could not wait any longer. Then Mandujano said he had a good contact, a man who kept narcotics around his home, but that if he went to see this man, he would need the money ‘out front.’ To reassure Cavalier that he would not simply abscond with the money, Mandujano stated, ‘You are in my place of business. My wife is here. You can sit with my wife. I am not going to jeopardize her or my business for $650.00.’ Cavalier counted out $650.00 to Mandujano, and Mandujano left the premises of the Tally-Ho Lounge at about 3:30 P.M. About an hour later, he returned and explained that he had been unable to locate his contact. He gave back the $650.00 and told Cavalier he could still wait until the regular man came around. Cavalier [left], but arranged to call back at 6:00 P.M. When Cavalier called at 6:00 and again at 6:30, he was told that Mandujano was not available. Cavalier testified that he did not later attempt to contact Mandujano, because, ‘Based on the information that I had received, it would be unsafe for either my informant or myself to return to this area.’

II.

Section 846 of Title 21, entitled ‘Attempt and conspiracy,’ provides that,

“Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”

The theory of the government in this case is straightforward: Mandujano’s acts constituted an attempt to distribute heroin; actual distribution of heroin would violate 21 U.S.C. § 841(a)(1); therefore, Mandujano’s attempt to distribute heroin comes within the terms of § 846 as an attempt to commit an offense defined in the subchapter.

Footnote by the court: [Section 841(a)(1) provides:] ‘(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally-

‘(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.’

Under subsection 802(11) the term ‘distribute’ means ‘to deliver (other than by administering or dispensing) a controlled substance.’ Subsection 802(8) defines the terms ‘deliver’ or ‘delivery’ to mean ‘the actual, constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship.’

Mandujano urges that his conduct as described by agent Cavalier did not rise to the level of an attempt to distribute heroin…. He claims that at most he was attempting to acquire a controlled substance, not to distribute it; that it is impossible for a person to attempt to distribute heroin which he does not possess or control; that his acts were only preparation, as distinguished from an attempt; and that the evidence was insufficient to support the jury’s verdict. [There was a stipulation that no heroin had exchanged hands in this case.]

Apparently there is no legislative history indicating exactly what Congress meant when it used the word ‘attempt’ in § 846. There are two reported federal cases which discuss the question of what constitutes an attempt under this section. In United States v. Noreikis (7^th Cir. 1973) … the court commented that,

‘While it seems to be well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, it seems equally clear that the semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule. The procuring of the instrument of the crime might be preparation in one factual situation and not in another. The matter is sometimes equated with the commission of an overt act, the ‘doing something directly moving toward, and bringing him nearer, the crime he intends to commit.’

In United States v. Heng Awkak Roman (S.D.N.Y. 1973), where the defendants’ actions would have constituted possession of heroin with intent to distribute in violation of § 841 if federal agents had not substituted soap powder for the heroin involved in the case, the court held that the defendants’ acts were an attempt to possess with intent to distribute. The district court in its opinion acknowledged that … “there is no comprehensive statutory definition of attempt in federal law.” The court concluded, however, that it was not necessary in the circumstances of the case to deal with the “complex question of when conduct crosses the line between ‘mere preparation’ and ‘attempt.’”

The courts in many jurisdictions have tried to elaborate on the distinction between mere preparation and attempt….^[1] In cases involving statutes other than § 846, the federal courts have confronted this issue on a number of occasions.

 … United States v. De Bolt (S.D. Ohio 1918) involved an apparent attempt to sabotage the manufacture of war materials in violation of federal law. With regard to the elements of an attempt, the court in this case quoted Bishop’s New Crim. Law (1892) vol. 1, §§ 728, 729: “An attempt is an intent to do a particular criminal thing, with an act toward it falling short of the thing intended. Hence, the two elements of an evil intent and a simultaneous resulting act constitute, and yet only in combination, an indictable offense, the same as in any other crime.”

Gregg v. United States (8^th Cir. 1940) involved in part a conviction for an attempt to import intoxicating liquor into Kansas. The court [noted] with apparent approval the definition of attempt urged by [the defendant]: “[A]n attempt is an endeavor to do an act carried beyond mere preparation, but falling short of execution, and that it must be a step in the direct movement towards the commission of the crime after preparations have been made. The act must ‘carry the project forward within dangerous proximity to the criminal end to be attained.’” The court held, however, that Gregg’s conduct went beyond ‘mere preparation’: “The transportation of goods into a state is essentially a continuing act not confined in its scope to the single instant of passage across a territorial boundary. In our view the appellant advanced beyond the stage of mere preparation when he loaded the liquor into his car and began his journey toward Kansas. From that moment he was engaged in an attempt to transport liquor into Kansas within the clear intent of the statute.”

…[In] United States v. Coplon (2nd Cir. 1950), where the defendant was arrested before passing to a citizen of a foreign nation classified government documents contained in [her] purse, Judge Learned Hand surveyed the law and addressed the issue of what would constitute an attempt:

“Because the arrest in this way interrupted the consummation of the crime one point upon the appeal is that her conduct still remained in the zone of ‘preparation,’ and that the evidence did not prove an ‘attempt.’ This argument it will be most convenient to answer at the outset. A neat doctrine by which to test when a person, intending to commit a crime which he fails to carry out, has ‘attempted’ to commit it, would be that he has done all that it is within his power to do, but has been prevented by intervention from outside; in short, that he has passed beyond any locus poenitentiae. Apparently that was the original notion, and may still be law in England; but it is certainly not now generally the law in the United States, for there are many decisions which hold that the accused has passed beyond ‘preparation,’ although he has been interrupted before he has taken the last of his intended steps. The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line; … There can be no doubt in the case at bar that ‘preparation’ had become ‘attempt.’ The jury were free to find that the packet was to be delivered that night, as soon as they both thought it safe to do so. To divide ‘attempt’ from ‘preparation’ by the very instant of consummation would be to revert to the old doctrine.”

… Although the foregoing cases give somewhat varying verbal formulations, careful examination reveals fundamental agreement about what conduct will constitute a criminal attempt. First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting. United States v. Quincy, 31 U.S. 445 (1832) (“The offenses consists principally in the intention with which the preparations were made…”)….

Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. … The use of the word ‘conduct’ indicates that omission or possession, as well as positive acts, may in certain cases provide a basis for liability. The phrase ‘substantial step,’ rather than ‘overt act,’ is suggested by Gregg v. United States, supra (‘a step in the direct movement toward the commission of the crime’); United States v. Coplon, supra (‘before he has taken the last of his intended steps’) and [other cases] and indicates that the conduct must be more than remote preparation. The requirement that the conduct be strongly corroborative of the firmness of the defendant’s criminal intent also relates to the requirement that the conduct be more than ‘mere preparation,’ and is suggested by the Supreme Court’s emphasis upon ascertaining the intent of the defendant, United States v. Quincy, supra, and by the approach taken in United States v. Coplon, supra (‘. . . some preparation may amount to an attempt. It is a question of degree’).^[2]

III.

The district court charged the jury in relevant part as follows:

[T]he essential elements required in order to prove or to establish the offense charged in the indictment, which is, again, that the defendant knowingly and intentionally attempted to distribute a controlled substance, must first be a specific intent to commit the crime, and next that the accused wilfully made the attempt, and that a direct but ineffectual overt act was done toward its commission, and that such overt act was knowingly and intentionally done in furtherance of the attempt.

‘* * * In determining whether or not such an act was done, it is necessary to distinguish between mere preparation on the one hand and the actual commencement of the doing of the criminal deed on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging a means for its commission, is not sufficient to constitute an attempt, but the acts of a person who intends to commit a crime will constitute an attempt where they, themselves, clearly indicate a certain unambiguous intent to wilfully commit that specific crime and in themselves are an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design.

(Tr. Jury Trial Proc., pp. 138-139.) These instructions, to which the defendant did not object, are compatible with our view of what constitutes an attempt under § 846.

After the jury brought in a verdict of guilty, the trial court propounded a series of four questions to the jury:

‘(1) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally placed several telephone calls in order to obtain a source of heroin in accordance with his negotiations with Officer Cavalier which were to result in the distribution of approximately one ounce of heroin from the defendant Roy Mandujano to Officer Cavalier?’

‘(2) Do you find beyond a reasonable doubt that the telephone calls inquired about in question no. (1) constituted overt acts in furtherance of the offense alleged in the indictment?’

‘(3) Do you find beyond a reasonable doubt that on the 29th day of March, 1973, Roy Mandujano, the defendant herein, knowingly, wilfully and intentionally requested and received prior payment in the amount of $650.00 for approximately one ounce of heroin that was to be distributed by the defendant Roy Mandujano to Officer Cavalier?’

‘(4) Do you find beyond a reasonable doubt that the request and receipt of a prior payment inquired about in question no. (3) constituted an overt act in furtherance of the offense alleged in the indictment?’

Neither the government nor the defendant objected to this novel procedure. After deliberating, the jury answered ‘No’ to question (1) and ‘Yes’ to questions (3) and (4). The jury’s answers indicate that its thinking was consistent with the charge of the trial court.

The evidence was sufficient to support a verdict of guilty… [T]he jury could have found that Mandujano was acting knowingly and intentionally and that he engaged in conduct—the request for and the receipt of the $650.00—which in fact constituted a substantial step toward distribution of heroin. From interrogatory (4), it is clear that the jury considered Mandujano’s request and receipt of the prior payment a substantial step toward the commission of the offense. Certainly, in the circumstances of this case, the jury could have found the transfer of money strongly corroborative of the firmness of Mandujano’s intent to complete the crime. Of course, proof that Mandujano’s ‘good contact’ actually existed, and had heroin for sale, would have further strengthened the government’s case; however, such proof was not essential.

Notes and questions on Mandujano

1. What was Roy Mandujano’s sentence for the crime of attempted distribution of heroin? Look at the first sentence of the court’s opinion, and then at the penalty provisions of 21 U.S.C. § 846, the federal attempt statute. Though an attempted offense may seem “lesser” than a completed offense, many attempt statutes provide that an attempt can be punished with the same range of penalties available for the underlying offense. (See also note 1 after People v. Acosta later in this chapter.)
2. Look again at 21 U.S.C. § 846, the federal attempt statute. It’s short! Notice that it uses the terms attempt and conspiracy, but does not define either term. This state was first enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The first two federal opinions to interpret section 846, both quoted in Mandujano, both noted that there was no precise definition of the term attempt in the statute, but each of these opinions also declined to provide a precise definition. Why might a court think that it is not necessary or desirable to define attempt, given the many different possible definitions listed in footnote 5?
3. As the Mandujano court explains, at common law courts often emphasized that there was a difference between “mere preparation” to commit a crime, on one hand, and a legally punishable attempt, on the other hand. But judges struggled to explain what the difference was, and it’s not clear that there ever was a single common law definition of attempt. Instead, common law courts developed several different tests, the most important of which are listed in footnote 5 of the court’s opinion. Note that each definition refers to “the crime” or “the completed crime.” An attempt conviction is always based upon some other offense that is defined as criminal. That is, a defendant is not convicted of “attempt” in the abstract, but attempted murder, attempted theft, attempted distribution of heroin, and so on. Note also that the common law tests in footnote 5, and the discussions of attempt in earlier federal cases, define a general doctrine of attempt that is applicable to any offense. One recurring question is whether attempt can be meaningfully defined in this “transsubstantive” way—in other words, is the definition of attempt the same whether the target crime is murder or littering? Should it be the same? Or is the struggle to define attempt caused by the fact that courts want to define it differently depending on the underlying offense?
4. Are there key differences between the various tests listed in footnote 5 of the Fifth Circuit opinion, or do these tests all amount to pretty much the same thing, as the court suggests? Would Roy Mandujano be guilty of attempted distribution of heroin under each common law definition of attempt?
5. Ultimately, the Fifth Circuit adopts an understanding of attempt that follows the language of the Model Penal Code: the defendant must act “with the kind of culpability otherwise required for the commission of the crime,” and must also engage in conduct that constitutes a “substantial step” toward commission of the crime. Look closely at MPC § 5.01, quoted in footnote 6 of the court’s opinion and reprinted below. Notice that the “substantial step” is actually just one of three ways to commit an attempt. What are the other two?
6. The Fifth Circuit did not quote the full text of MPC § 5.01, which offers several specific examples of the kind of conduct that can constitute a “substantial step.” The full text of MPC § 5.01 is reprinted below; it may be useful as we encounter other nuances of attempt law later in this chapter.

   Model Penal Code § 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) 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 under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:

   (a) lying in wait, searching for or following the contemplated victim of the crime;

   (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

   (c) reconnoitering the place contemplated for the commission of the crime;

   (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

   (e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;

   (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

   (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

   (3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

   (4) Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.

   Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

7. MPC § 5.01(1)(a) describes what are sometimes called “completed attempts,” or situations in which the defendant has the mental state required by the underlying crime and engages in all the conduct elements, but cannot be punished for the underlying crime itself because some attendant circumstance element cannot be established. For example, consider the facts of Heng Awkak Ranan, discussed in the Mandujano opinion.
8. MPC § 5.01(1)(b) is similar to another common law explanation of attempt, the “last act” test. Under this test, a defendant was guilty of attempt if he had completed the “last act” or “last proximate act” necessary to accomplish the targeted crime. Most courts held that evidence of the last proximate act was sufficient but not necessary to prove attempt.
9. What mental state must be “proven” (or admitted) in order to establish liability for attempt? The jury instructions used in Mandujano, quoted in the Fifth Circuit’s opinion, state that “a specific intent to commit the crime” is an element of attempt. This claim is somewhat at odds with the court’s reliance on the Model Penal Code, which avoided the common law terms “specific intent” and “general intent.” Those terms are notoriously ambiguous, as discussed in prior chapters. The claim that attempt requires specific intent is usually a claim that the defendant must have the purpose of accomplishing the underlying offense. Does the Model Penal Code require this particular mental state, or does it allow attempt liability even when the defendant does not think, “I want to commit x crime”? Look again at MPC § 5.01(1), above.
10. These notes focus heavily on the Model Penal Code’s definition of attempt because Section 5.01 is one of the more influential portions of the MPC. A majority of U.S. jurisdictions now use the concept of a “substantial step” to define attempt, rather than one of the older common law tests. Whether this change in the words used to define attempt makes a difference, or what difference it makes, is a difficult question. Again, the Mandujano court treated all common law definitions of attempt as more or less equivalent, and treated “substantial step” as roughly equivalent to the common law. In People v. Acosta, presented later in this chapter, a New York court characterizes its common law dangerous proximity test as “apparently more stringent” than the substantial step test. But the dissent in Acosta observes that at the defendant’s trial, the jury was mistakenly instructed on the substantial step test rather than the dangerous proximity test—and no one objected!
11. If redefining attempt along MPC lines does make a difference, how can we ascertain that difference? As noted in the next case in this chapter, the drafters of the MPC made clear that they intended the “substantial step” test to broaden the definition of attempt, making it possible to punish a greater range of preparatory actions. It is not clear whether lay jurors do or would actually interpret the language as the MPC drafters intended. One experimental study found that laypersons interpreted “substantial step” language more narrowly, not more broadly, than common law language such as “dangerous proximity.” Avani Mehta Sood, Attempted Justice: Misunderstandings and Bias in Psychological Constructions of Criminal Attempt, 71 Stan. L. Rev. 593 (2019). Sood’s study relied on experiments in which participants were asked to pretend to be jurors, not actual data from real prosecutions and convictions. In a world of guilty pleas, most convictions for attempted crimes are not based on jury deliberations at all. If legal professionals, including prosecutors and judges, believe that “substantial step” definitions of attempt reach more broadly than the common law tests, that belief could affect these professionals’ willingness to bring attempt charges or uphold attempt convictions.
12. Professor Sood’s article also investigates ways in which decisionmakers’ cognitive biases might operate through attempt doctrine. Her experimental studies asked participants to evaluate the criminal responsibility of a Muslim defendant and a Christian defendant, each charged with an attempted offense. Participants were likely to judge the hypothetical Muslim defendant more harshly even when the fact scenario was written to suggest this defendant’s innocence. Professor Sood suggests that “lay constructions of criminal intent may inadvertently operate as a vehicle for discriminatory decisionmaking.” 71 Stan. L. Rev. at 654. Because we cannot “know” another person’s thoughts in the same sense that we can know (of) their actions, we inevitably rely on conjecture and guesswork when we attribute intentions to someone. In that process of attribution, cognitive biases appear to play a role. For this reason, several commentators have suggested that as criminal liability becomes more heavily based on judgments about intent, the more likely it is that racial bias will shape impositions of criminal liability. See, e.g., Luis Chiesa, The Model Penal Code, Mass Incarceration, and the Racialization of American Criminal Law, 25 Geo. Mason L. Rev. 605, 609 (2018) (critiquing the Model Penal Code’s definition of attempt for its emphasis on intention, and suggesting that the MPC has “made it easier for racial bigotry to slip through the seams of criminal law doctrine”).

South Dakota Codified Laws § 22-4-1. Attempt
Unless specific provision is made by law, any person who attempts to commit a crime and, in the attempt, does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration of that crime, is punishable for such attempt at maximum sentence of one-half of the penalty prescribed for the underlying crime…

South Dakota Codified Laws § 22-16-4. Homicide as murder in the first degree

Homicide is murder in the first degree:

(1) If perpetrated without authority of law and with a premeditated design to effect the death of the person killed or of any other human being, including an unborn child; or

(2) If committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive.

STATE of South Dakota, Plaintiff and Appellee

v.

Rocco William DISANTO, Defendant and Appellant

Supreme Court of South Dakota
688 N.W.2d 201

Decided Oct. 6, 2004

KONENKAMP, Justice.

… Defendant, Rocco William “Billy” Disanto, and Linda Olson lived together for two years and were engaged for a short time. But their turbulent relationship ended in January 2002. Olson soon began a new friendship with Denny Egemo, and in the next month, they moved in together. Obsessed with his loss, defendant began making threatening telephone calls to Olson and Egemo. He told them and others that he was going to kill them. He also sued Olson claiming that she was responsible for the disappearance of over $15,000 in a joint restaurant venture.

On February 17, 2002, while gambling and drinking at [a hotel], defendant told a woman that he intended “to shoot his ex-girlfriend, to kill her, to shoot her new lover in the balls so that he would have to live with the guilt, and then he was going to kill himself.” As if to confirm his intention, defendant grabbed the woman’s hand and placed it on a pistol in his jacket. The woman contacted a hotel security officer who in turn called the police. Defendant was arrested and a loaded .25 caliber pistol was taken from him.

In a plea bargain, defendant pleaded guilty to possession of a concealed pistol without a permit and admitted to a probation violation… While in the penitentiary [for these offenses], defendant met Stephen Rynders. He told Rynders of his intention to murder Olson and her boyfriend. Rynders gave this information to law enforcement and an investigation began. In June 2002, defendant was released from prison. Upon defendant’s release, Rynders, acting under law enforcement direction, picked defendant up and offered him a ride… At the suggestion of the investigators, Rynders told defendant that he should hire a contract killer who Rynders knew in Denver.

On the afternoon of June 11, 2002, Rynders and Dale McCabe, a law enforcement officer posing as a killer for hire from Denver, met twice with defendant. Much of their conversation was secretly recorded. Defendant showed McCabe several photos of Olson and gave him one, pointed out her vehicle, led him to the location of her home, and even pointed Olson out to him as she was leaving her home. In between his meetings with McCabe that afternoon, by chance, defendant ran into Olson on the street. Olson exclaimed, “I suppose you’re going to kill me.” “Like a dog,” defendant replied.

Shortly afterwards in their second meeting, defendant told McCabe, “I want her and him dead.” “Two shots in the head.” With only one shot, he said, “something can go wrong.” If Olson’s teenage daughter happened to be present, then defendant wanted her killed too: “If you gotta, you gotta, you know what I mean.” He wanted no witnesses. He suggested that the murders should appear to have happened during a robbery. Because defendant had no money to pay for the murders, he suggested that jewelry and other valuables in the home might be used as partial compensation. He told McCabe that the boyfriend, Egemo, was known to have a lot of cash. Defendant also agreed to pay for the killings with some methamphetamine he would later obtain.

At 3:00 p.m., defendant and McCabe appeared to close their agreement with the following exchange:

McCabe: So hey, just to make sure, no second thoughts or….
Defendant: No, none.
McCabe: You sure, man?
Defendant: None.
McCabe: Okay.
Defendant: None.
McCabe: The deal’s done, man.
Defendant: It’s a go.
McCabe: OK. Later. I’ll call you tonight.
Defendant: Huh?
McCabe: I’ll call you tonight.
Defendant: Thank you.

McCabe would later testify that as he understood their transaction, “the deal was sealed at that point” and the killings could be accomplished “from that time on until whenever I decided to complete the task.”

Less than three hours later, however, defendant, seeking to have a message given to McCabe, called Rynders telling him falsely that a “cop stopped by here” and that Olson had spotted McCabe’s car with its Colorado plates, that Olson had “called the cops,” that defendant was under intense supervision, and that now the police were alerted because of defendant’s threat against Olson on the street. All of this was untrue. Defendant’s alarm about police involvement was an apparent ruse to explain why he did not want to go through with the killings.

Defendant: So, I suggest we halt this. Let it cool down a little bit….
Rynders: Okay.

* * *

Defendant: So I don’t know if that house (Olson’s) is being watched, do you know what I’m saying?
Rynders: Okay.

* * *

Defendant: And, ah, the time is not right right now. I’m just telling you, I, I don’t feel it. I feel, you know what I mean. I’m not backing out of it, you know what I’m saying.
Rynders: Um hm.
Defendant: But, ah, the timing. You know what I mean. I just got out of prison, right?

* * *

Defendant: So, ah, I’m just telling you right now, put it on hold.
Rynders: Okay.
Defendant: And that’s the final word for the simple reason, ah, I don’t want nothing to happen to [McCabe], you know what I mean?

* * *

Defendant: Let it cool down. Plus let’s let ‘em make an offer …. [referring to defendant’s lawsuit against Olson]
Rynders: Well, I have no clue where [McCabe is] at right now.
Defendant: Oh, God. You got a cell number?

* * *

Defendant: Get it….
Defendant: I just don’t feel good about it to be honest and I’ll tell ‘ya, I’ve got great intuition.
Rynders: Okay.

* * *

Defendant: So, I mean, just let him [McCabe] know. Alright buddy?
Rynders: Okay.
Defendant: Get to him. He’s gonna call me at 11 tonight.

Despite this telephone call, the next day, McCabe, still posing as a contract killer, came to defendant at his place of employment with Olson’s diamond ring to verify that the murders had been accomplished. McCabe drove up to defendant and beckoned him to his car.

McCabe: Hey, man. Come here. Come here. Come here. Jump in, man. Jump in, dude.
Defendant: You sure?
McCabe: Jump in.
Defendant: I can’t, I can’t leave the bakery. I ain’t got the key.
McCabe: Fuck, I gotta get the fuck out of here, dude. It’s done, man. Fuckin’ done, dude.
Defendant: Okay. I don’t wanna know nothin’ about it.
McCabe: All right. Check this out, man. [Showing him Olson’s diamond ring.]
Defendant: No.
McCabe: Here.
Defendant: I don’t wanna see nothin’.
McCabe: I got that shit.
Defendant: Good.

* * *

McCabe: Hey. You still owe me some shit, man.
Defendant: Guaranteed.

Defendant was arrested and charged with three counts of attempted murder. He was also charged with one count of simple assault for the threat he made against Olson on the street….

A jury convicted defendant of all charges. He was sentenced to three concurrent thirty-year terms of imprisonment in the South Dakota State Penitentiary. In addition, he received a concurrent 365 days in jail. He was fifty-nine years old at the time. These sentences were consecutive to the unfinished two-year term defendant was to serve for his prior felony conviction. …

Defendant argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to offer sufficient evidence to sustain a conviction on the three counts of attempted murder. …

In defining the crime of attempt, we begin with our statute, [which] states that “Any person who attempts to commit a crime and in the attempt does any act toward the commission of the crime, but fails or is prevented or intercepted in the perpetration thereof, is punishable” as therein provided. To prove an attempt, therefore, the prosecution must show that defendant (1) had the specific intent to commit the crime, (2) committed a direct act toward the commission of the intended crime, and (3) failed or was prevented or intercepted in the perpetration of the crime.

We need not linger on the question of intent. Plainly, the evidence established that defendant repeatedly expressed an intention to kill Olson and Egemo, as well as Olson’s daughter, if necessary. As McCabe told the jury, defendant “was a man on a mission to have three individuals murdered.”

Defendant does not claim error in any of the court’s instructions to the jury. The jury was instructed in part that

Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt; but acts of a person who intends to commit a crime will constitute an attempt when they themselves clearly indicate a certain, unambiguous intent to commit that specific crime, and in themselves are an immediate step in the present commission of the criminal design, the progress of which would be completed unless interrupted by some circumstances not intended in the original design. The attempt is the direct movement toward commission of the crime after the preparations are made.

Once a person has committed acts which constitute an attempt to commit a crime, that person cannot avoid responsibility by not proceeding further with the intent to commit the crime, either by reason of voluntarily abandoning the purpose or because of a fact which prevented or interfered with completing the crime.

However, if a person intends to commit a crime but before the commission [of] any act toward the ultimate commission of the crime, that person freely and voluntarily abandons the original intent and makes no effort to accomplish it, the crime of attempt has not been committed.

Defendant contends that he abandoned any attempt to murder when he telephoned Rynders to “halt” the killings. The State argued to the jury that defendant committed an act toward the commission of first degree murder by giving the “hit-man” a final order to kill, thus making the crime of attempt complete. If he went beyond planning to the actual commission of an act, the State asserted, then a later abandonment would not extricate him from responsibility for the crime of attempted murder. On the other hand, if he only wanted to postpone the crime, then, the State contended, his attempt was merely delayed, not abandoned.

On the question of abandonment, it is usually for the jury to decide whether an accused has already committed an act toward the commission of the murders. Once the requisite act has been committed, whether a defendant later wanted to abandon or delay the plan is irrelevant. As Justice Mosk of the California Supreme Court wrote,

It is obviously impossible to be certain that a person will not lose his resolve to commit the crime until he completes the last act necessary for its accomplishment. But the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized. If it is not clear from a suspect’s acts what he intends to do, an observer cannot reasonably conclude that a crime will be committed; but when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is under way, and a last-minute change of heart by the perpetrator should not be permitted to exonerate him.

People v. Dillon (Cal. 1983).

The more perplexing question here is whether there was evidence that, in fulfilling his murderous intent, defendant committed an “act” toward the commission of first degree murder. Defendant contends that he never went beyond mere preparation. In State v. Martinez, this Court declared that the boundary between preparation and attempt lies at the point where an act “unequivocally demonstrate[s] that a crime is about to be committed.” Thus, the term “act” “presupposes some direct act or movement in execution of the design, as distinguished from mere preparation, which leaves the intended assailant only in the condition to commence the first direct act toward consummation of his design.” The unequivocal act toward the commission of the offense must demonstrate that a crime is about to be committed unless frustrated by intervening circumstances. However, this act need not be the last possible act before actual accomplishment of the crime to constitute an attempt.

We have no decisions on point in South Dakota; therefore, we will examine similar cases in other jurisdictions. In murder for hire cases, the courts are divided on how to characterize the offense: is it a solicitation to murder or an act toward the commission of murder? Most courts “take the view that the mere act of solicitation does not constitute an attempt to commit the crime solicited…” …

A majority of courts reason that a solicitation to murder is not attempted murder because the completion of the crime requires an act by the one solicited. … In State v. Otto, 629 P.2d 646 (1981), the defendant hired an undercover police officer to kill another police officer investigating the disappearance of the defendant’s wife. A divided Idaho Supreme Court reversed the attempted first-degree murder conviction, ruling that the act of soliciting the agent to commit the actual crime, coupled with the payment of $250 and a promise of a larger sum after the crime had been completed, amounted to solicitation to murder rather than attempted murder. The court in Otto held that “[t]he solicit[ation] of another, assuming neither solicitor nor solicitee proximately acts toward the crime’s commission, cannot be held for an attempt. He does not by his incitement of another to criminal activity commit a dangerously proximate act of perpetration. The extension of attempt liability back to the solicitor destroys the distinction between preparation and perpetration.” In sum, “[n]either [the defendant in Otto] nor the agent ever took any steps of perpetration in dangerous proximity to the commission of the offense planned.”

Requisite to understanding the general rule “is the recognition that solicitation is in the nature of the incitement or encouragement of another to commit a crime in the future [and so] it is essentially preparatory to the commission of the targeted offense.” The Idaho Supreme Court made the rather pointed observation that “…jurisdictions faced with a general attempt statute and no means of severely punishing a solicitation to commit a felony might resort to the device of transforming the solicitor’s urgings into [an attempt,] but doing so violates the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.”^[3]

Cases like Davis [and] Otto … are helpful to our analysis because, at the time they were decided, the statutes or case law in those jurisdictions defined attempt in a way identical to our attempt statute. Under this formulation, there must be specific intent to commit the crime and also a direct act done towards its commission….

To understand the opposite point of view, we will examine cases following the minority rule. But before we begin, we must first consider the definition of attempt under the Model Penal Code, and distinguish cases decided under its formula. In response to court decisions that hiring another to commit murder did not constitute attempted murder, many jurisdictions created, sometimes at the urging of the courts, the offense of solicitation of murder. As an alternative, another widespread response was to adopt the definition of attempt under the Model Penal Code. This is because the Model Penal Code includes in criminal attempt much that was held to be preparation under former decisions. This is clear from the comments accompanying the definition of criminal attempt in Tentative Draft No. 10 (1960) of the American Law Institute’s Model Penal Code, Article 5 § 5.01. The intent was to extend the criminality of attempts by drawing the line further away from the final act, so as to make the crime essentially one of criminal purpose implemented by a substantial step highly corroborative of such purpose. … The Model Penal Code treats the solicitation of “an innocent agent to engage in conduct constituting an element of the crime,” if strongly corroborative of the actor’s criminal purpose, as sufficient satisfaction of the substantial step requirement to support a conviction for criminal attempt.

… State v. Molasky (Mo. 1989) … is instructive. There, a conviction for attempted murder was reversed, but only because the conduct consisted solely of conversation, unaccompanied by affirmative acts. … [T]he court reasoned, “a substantial step is evidenced by actions, indicative of purpose, not mere conversation standing alone.” Acts evincing a defendant’s seriousness of purpose to commit murder, the Molasky Court suggested, might be money exchanging hands, concrete arrangements for payment, delivering a photograph of the intended victim, providing the address of the intended victim, furnishing a weapon, visiting the crime scene, waiting for the victim, or showing the hit man the victim’s expected route of travel. Therefore, under the relaxed standards of the Model Penal Code, evidence of an act in furtherance of the crime could include what defendant did here, provide a photograph of the intended victim and point out her home to the feigned killer. Molasky crystallizes our sense that without the expansive Model Penal Code definition of attempt, acts such as the ones defendant performed here are not sufficient under our definition to constitute attempt.

Knowing that the Model Penal Code relaxes the distinction between preparation and perpetration, we exclude from our analysis those murder for hire cases using some form of the Code’s definition of attempt. Obviously, we cannot engraft a piece of the Model Penal Code onto our statutory definition of attempt, for to do so would amount to a judicial rewriting of our statute. Nonetheless, there are several courts taking the minority position that solicitation of murder can constitute attempted murder, without reference to the Model Penal Code definition….

The minority view … is epitomized in the dissenting opinion in Otto, where it was noted that efforts to distinguish between “acts of preparation and acts of perpetration” are “highly artificial, since all acts leading up to the ultimate consummation of a crime are by their very nature preparatory.” For these courts, preparation and perpetration are seen merely as degrees on a continuum, and thus the distinction between preparation and perpetration becomes blurred.

In interpreting our law, all “criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.” SDCL 22-1-1. Under our longstanding jurisprudence, preparation and perpetration are distinct concepts. Neither defendant nor the feigned “hit man” committed an act “which would end in accomplishment, but for … circumstances occurring … independent of[] the will of the defendant.”

We cannot convert solicitation into attempt because to do so is obviously contrary to what the Legislature had in mind when it set up the distinct categories of solicitation and attempt. Indeed, the Legislature has criminalized other types of solicitations. See SDCL 22-43-2 (soliciting commercial bribe); SDCL 22-23-8 (pimping as felony); … SDCL 22-22-24.5 (solicitation of minor for sex); SDCL 16-18-7 (solicitation by disbarred or suspended attorney).

Beyond any doubt, defendant’s behavior here was immoral and malevolent. But the question is whether his evil intent went beyond preparation into acts of perpetration. Acts of mere preparation in setting the groundwork for a crime do not amount to an attempt. Under South Dakota’s definition of attempt, solicitation alone cannot constitute an attempt to commit a crime. Attempt and solicitation are distinct offenses. To call solicitation an attempt is to do away with the necessary element of an overt act. Worse, to succumb to the understandable but misguided temptation to merge solicitation and attempt only muddles the two concepts and perverts the normal and beneficial development of the criminal law through incremental legislative corrections and improvements. It is for the Legislature to remedy this problem, and not for us through judicial expansion to uphold a conviction where no crime under South Dakota law was committed.

Reversed.

SABERS, Justice (concurring).

I agree because the evidence indicates that this blundering, broke, inept 59 year-old felon, just out of prison, was inadequate to pursue or execute this crime without the motivating encouragement of his “friend from prison” and law enforcement officers. On his own, it would have been no more than a thought.

GILBERTSON, Chief Justice (dissenting).

… [Defendant’s acts were] far more than mere verbal solicitation of a hit man to accomplish the murders….

… Defendant argues that the evidence clearly demonstrates that Defendant’s actions in June 2002 did not go beyond mere preparation. Defendant cites the police’s failure to arrest Defendant after the June 11, 2002 meeting as proof of this proposition. Defendant also notes that his phone call to Rynders “clearly shows the Defendant put a halt to the attempted commission of the crime … but chose to do so by remaining friendly and cooperative with the hitman.”

Two distinct theories can be drawn from Defendant’s telephone conversation. The first, posited by Defendant, is that Defendant wished to extricate himself from an agreed upon murder, but leave the “hit man” with the perception that the deal remained in place. However, there is a second equally plausible theory which was presented by the State. That is, Defendant merely wanted to delay the previously planned murder, but leave the “hit man” with the knowledge that the deal remained in place.

Both theories were thoroughly argued to the jury. However, the jury chose to believe the State’s theory. Therefore, the jury could have properly concluded Defendant’s actions were “done toward the commission of the crime … the progress of which would be completed unless interrupted by some circumstances not intended in the original design” and not simply mere preparation.

… The Court today enters a lengthy analysis whether the acts constituted preparation or acts in the attempt to commit murder. … Minute examination between majority and minority views and “preparation” and “perpetration” conflict with the command of SDCL 22-1-1:

The rule of the common law that penal statutes are to be strictly construed has no application to this title. All its criminal and penal provisions and all penal statutes are to be construed according to the fair import of their terms, with a view to effect their objects and promote justice.

Here there was evidence that all that was left was to pull the trigger. As the Court acknowledges “the law of attempts would be largely without function if it could not be invoked until the trigger was pulled.” … Thus, I respectfully dissent.

ZINTER, Justice (dissenting).

I join the Court’s legal analysis concerning the distinction between solicitations and attempts to commit murder [and I join the Court’s analysis of abandonment]. Therefore, I agree that Disanto’s solicitation of McCabe, in and of itself, was legally insufficient to constitute an attempt to commit murder… However, I respectfully disagree with the Court’s analysis of the facts, which leads it to find as a matter of law that Disanto “committed [no] act toward the commission of the offense[].” …[E]ven setting aside Disanto’s solicitation, he still engaged in sufficient other “acts” toward the commission of the murder such that reasonable jurors could have found that he proceeded “so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances.” The intended victims were clearly in more danger then than they were when Disanto first expressed his desire to kill them.

Specifically, Disanto physically provided McCabe with a photograph of the victim, he pointed out her vehicle, and he took McCabe to the victim’s home and pointed her out as she was leaving. None of these acts were acts of solicitation. Rather, they were physical “act[s going] toward the commission” of the murder.

Although it is acknowledged that the cases discussed by the Court have found that one or more of the foregoing acts can be part of a solicitation, Disanto’s case has one significant distinguishing feature. After his solicitation was completed, after the details were arranged, and after Disanto completed the physical acts described above, he then went even further and executed a command to implement the killing. In fact, this Court itself describes this act as the “final command” to execute the murder. Disanto issued the order: “It’s a go.” This act is not present in the solicitation cases that invalidate attempted murder convictions because they proceeded no further than preparation.

Therefore, when Disanto’s final command to execute the plan is combined with his history and other acts, this is the type of case that proceeded further than the mere solicitations and plans found insufficient in the case law. This combination of physical acts would have resulted in accomplishment of the crime absent the intervention of the law enforcement officer. Clearly, the victim was in substantially greater danger after the final command than when Disanto first expressed his desire to kill her. Consequently, there was sufficient evidence to support an attempt conviction.^[4] 

It bears repeating that none of the various “tests” used by courts in this area of the law can possibly distinguish all preparations from attempts. Therefore, a defendant’s entire course of conduct should be evaluated in light of his intent and his prior history in order to determine whether there was substantial evidence from which a reasonable trier of fact could have sustained a finding of an attempt. In making that determination, it is universally recognized that the acts of solicitation and attempt are a continuum between planning and perpetration of the offense…

…[I]t is generally the jury’s function to determine whether those acts have proceeded beyond mere planning. As this Court itself has noted, where design is shown, “courts should not destroy the practical and common sense administration of the law with subtleties as to what constitutes [the] preparation” to commit a crime as distinguished from acts done towards the commission of a crime. …We leave this question to the jury because “[t]he line between preparation and attempt is drawn at that point where the accused’s acts no longer strike the jury as being equivocal but unequivocally demonstrate that a crime is about to be committed.”

I would follow that admonition and affirm the judgment of this jury. Disanto’s design, solicitation, physical acts toward commission of the crime and his final command to execute the murder, when considered together, unequivocally demonstrated that a crime was about to be committed. This was sufficient evidence from which the jury could have reasonably found that an attempt had been committed.

Notes and questions on State v. Disanto

1. This case introduces two new concepts important to the study of inchoate offenses: solicitation, discussed in this note and the next few notes, and abandonment, discussed below. “Solicitation” is, roughly, the crime of trying to get someone else to commit a crime. When solicitation began to be treated as a crime by common law courts in the nineteenth century, it was typically defined as the act of asking, inducing, advising, ordering, or otherwise encouraging someone else to commit a crime. No separate mental state requirement was typically identified, and some modern solicitation statutes also omit an explicit reference to mental states. However, courts typically interpret solicitation to require intent that the other person (the solicitee) commit the target crime.
   At the time Disanto was decided, South Dakota did not have a general solicitation statute. (That would soon change, as explained below.) Instead, separate statutes imposed criminal liability for certain types of offenses; it was a crime to solicit a bribe, for example, and a crime to solicit prostitution. But at the time that Mr. Disanto asked McCabe to kill Linda Olson, no statute made it criminal to solicit murder. Thus, the question before the state supreme court in this case was whether Disanto could be properly charged and convicted of attempted murder. Courts have divided on the question whether a solicitation—again, a request to someone else that they commit a crime—is itself sufficient to support attempt liability. What are the arguments for and against treating a solicitation as a form of attempt? There are a few different possible approaches that might be adopted by a jurisdiction: 1) all solicitations are attempts, making a separate crime of solicitation unnecessary; 2) some but not all solicitations are attempts; 3) solicitations are never attempts, but at least some solicitations should be separately criminalized; 4) solicitations are never attempts, and they should not be subject to criminal liability at all. Which position does the majority take? What about Justice Gilbertson? Justice Zinter?
2. One year after this case was decided, South Dakota adopted the following general solicitation statute:

2005 South Dakota Laws Ch. 120, § 438, codified at SDCL § 22-4A-1. In 2021, the South Dakota Supreme Court, in an opinion by Justice Gilbertson (who dissented in Disanto), upheld a conviction under this statute for “solicitation to aid and abet a murder.” State v. Thoman, 955 N.W.2d 759 (2021). The defendant, William Thoman, had asked a friend “if he knew anyone that could do away with somebody,” and also asked the same friend to help him get a gun. Thoman expressed a desire to kill Dr. Mustafa Sahin, a doctor who had treated Thoman’s wife until her death from cancer. The friend, Kenneth Jones, later reported the conversation to law enforcement, who had Jones make a recorded phone call to Thoman.

Thoman, 955 N.W.2d at 764. Thoman was convicted of solicitation to murder under the new South Dakota statute. Should he have been convicted of attempted murder instead?

3. The Disanto majority states, “[p]lainly, the evidence established that defendant repeatedly expressed an intention to kill Olson and Egemo, as well as Olson’s daughter, if necessary. As McCabe told the jury, defendant ‘was a man on a mission to have three individuals murdered.’” Contrast the majority’s characterization of the defendant’s mental state to the concurring opinion, which finds that “the evidence indicates that this blundering, broke, inept 59-year-old felon … was inadequate to pursue or execute this crime without the motivating encouragement of his ‘friend from prison’ and law enforcement officers. On his own, it would have been no more than a thought.” Are these two characterizations of McCabe’s intentions (and actions) consistent? If not, which seems more accurate to you?
4. Disanto can help you refine your understanding of common law attempt terminology, including concepts discussed in Mandujano and the subsequent notes. The Disanto court distinguishes between “an unequivocal act [that] demonstrate[s] a crime is about to be committed unless frustrated by intervening circumstances” and “the last possible act before actual accomplishment of the crime.” Which of these two types of act is required to establish attempt liability in South Dakota?
5. Notice that South Dakota has repealed by statute the common law principle of strict construction of criminal statutes. Both the majority opinion and Chief Justice Gilbertson’s dissent quote Section 22-1-1, but the majority opinion leaves out the first sentence of the statute. Check Justice Gilbertson’s dissent for the longer quotation. Does the extra sentence make a difference to the way you read the rest of the statute? In legal writing, lawyers often think carefully about what to quote and which sources to use. Professional norms generally require lawyers to avoid deliberate misrepresentation of a source. It is important to remember that judicial opinions are also advocacy documents in a certain sense: the judge who authors an opinion wants his or her readers to view the result as the only or best outcome, even if there were multiple possible interpretations of the underlying texts.
6. Disanto argued that he “abandoned” any attempt to murder Olson. The majority suggests that “abandonment” is irrelevant if Disanto had already engaged in the “actus reus” of attempted murder—if he had taken sufficient action, along with his criminal intent, to become guilty of the crime of attempted murder. In some jurisdictions, however, a claim of “abandonment” can function as an affirmative defense to an attempted offense: even if the defendant has completed the necessary elements to be guilty of an attempted crime, his or her subsequent abandonment of the planned crime is relevant to criminal liability. For more on abandonment (sometimes called renunciation) as an affirmative defense, see People v. Acosta later in this chapter.

Impossibility

Michigan C.L.A. 750.92. Attempt to commit crime

Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

1. If the offense attempted to be committed is such as is punishable with death, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years;

2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year;

3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed ½ of the greatest punishment which might have been inflicted if the offense so attempted had been committed.

Michigan C.L.A. 750.157b. Solicitation to commit murder or other felony; affirmative defense

(1) For purposes of this section, “solicit” means to offer to give, promise to give, or give any money, services, or anything of value, or to forgive or promise to forgive a debt or obligation.

(2) A person who solicits another person to commit murder, or who solicits another person to do or omit to do an act which if completed would constitute murder, is guilty of a felony punishable by imprisonment for life or any term of years.

(3) Except as provided in subsection (2), a person who solicits another person to commit a felony, or who solicits another person to do or omit to do an act which if completed would constitute a felony, is punishable as follows:

(a) If the offense solicited is a felony punishable by imprisonment for life, or for 5 years or more, the person is guilty of a felony punishable by imprisonment for not more than 5 years or by a fine not to exceed $5,000.00, or both.

(b) If the offense solicited is a felony punishable by imprisonment for a term less than 5 years or by a fine, the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or by a fine not to exceed $1,000.00, or both, except that a term of imprisonment shall not exceed ½ of the maximum imprisonment which can be imposed if the offense solicited is committed.

(4) It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his or her criminal purpose, the actor notified the person solicited of his or her renunciation and either gave timely warning and cooperation to appropriate law enforcement authorities or otherwise made a substantial effort to prevent the performance of the criminal conduct commanded or solicited, provided that conduct does not occur. The defendant shall establish by a preponderance of the evidence the affirmative defense under this subsection.

Michigan C.L.A. 722.675. Dissemination of sexually explicit material to minors

(1) A person is guilty of distributing obscene matter to a minor if that person does either of the following:

(a) Knowingly disseminates to a minor sexually explicit visual or verbal material that is harmful to minors.

* * *

(2) A person knowingly disseminates sexually explicit matter to a minor when the person knows both the nature of the matter and the status of the minor to whom the matter is disseminated.

(3) A person knows the nature of matter if the person either is aware of the character and content of the matter or recklessly disregards circumstances suggesting the character and content of the matter.

(4) A person knows the status of a minor if the person either is aware that the person to whom the dissemination is made is under 18 years of age or recklessly disregards a substantial risk that the person to whom the dissemination is made is under 18 years of age.

PEOPLE of the State of Michigan, Plaintiff–Appellant

v.

Christopher THOUSAND, Defendant–Appellee

Supreme Court of Michigan
631 N.W.2d 694

Decided July 27, 2001

YOUNG, J.

We granted leave in this case to consider whether the doctrine of “impossibility” provides a defense to a charge of attempt to commit an offense prohibited by law under M.C.L. § 750.92, or to a charge of solicitation to commit a felony under M.C.L. § 750.157b….

[Because this case has not yet been tried, our statement of facts is derived from preliminary hearings and documentation in the lower court record.] Deputy William Liczbinski was assigned by the Wayne County Sheriff’s Department to conduct an undercover investigation for the department’s Internet Crimes Bureau. Liczbinski was instructed to pose as a minor and log onto “chat rooms” on the Internet for the purpose of identifying persons using the Internet as a means for engaging in criminal activity.

On December 8, 1998, while using the screen name “Bekka,” Liczbinski was approached by defendant, who was using the screen name “Mr. Auto–Mag,” in an Internet chat room. Defendant described himself as a twenty-three-year-old male from Warren, and Bekka described herself as a fourteen-year-old female from Detroit. Bekka indicated that her name was Becky Fellins, and defendant revealed that his name was Chris Thousand. During this initial conversation, defendant sent Bekka, via the Internet, a photograph of his face.

From December 9 through 16, 1998, Liczbinski, still using the screen name “Bekka,” engaged in chat room conversation with defendant. During these exchanges, the conversation became sexually explicit. Defendant made repeated lewd invitations to Bekka to engage in various sexual acts, despite various indications of her young age.

During one of his online conversations with Bekka, after asking her whether anyone was “around there,” watching her, defendant indicated that he was sending her a picture of himself. Within seconds, Liczbinski received over the Internet a photograph of male genitalia. Defendant asked Bekka whether she liked and wanted it and whether she was getting “hot” yet, and described in a graphic manner the type of sexual acts he wished to perform with her. Defendant invited Bekka to come see him at his house for the purpose of engaging in sexual activity. Bekka replied that she wanted to do so, and defendant cautioned her that they had to be careful, because he could “go to jail.” Defendant asked whether Bekka looked “over sixteen,” so that if his roommates were home he could lie.

The two then planned to meet at an area McDonald’s restaurant at 5:00 p.m. on the following Thursday. Defendant indicated that they could go to his house, and that he would tell his brother that Bekka was seventeen. Defendant instructed Bekka to wear a “nice sexy skirt,” something that he could “get [his] head into.” Defendant indicated that he would be dressed in black pants and shirt and a brown suede coat, and that he would be driving a green Duster. Bekka asked defendant to bring her a present, and indicated that she liked white teddy bears.

On Thursday, December 17, 1998, Liczbinski and other deputy sheriffs were present at the … restaurant when they saw defendant inside a vehicle matching the description given to Bekka by defendant. Defendant … entered the restaurant. Liczbinski recognized defendant’s face from the photograph that had been sent to Bekka. Defendant looked around for approximately thirty seconds before leaving the restaurant. Defendant was then taken into custody [and his vehicle and home were searched].

Following a preliminary examination, defendant was bound over for trial on charges of solicitation to commit third-degree criminal sexual conduct, attempted distribution of obscene material to a minor, and child sexually abusive activity…

Defendant brought a motion to quash the information, arguing that, because the existence of a child victim was an element of each of the charged offenses, the evidence was legally insufficient to support the charges. The circuit court agreed and dismissed the case, holding that it was legally impossible for defendant to have committed the charged offenses. The Court of Appeals affirmed the dismissal of the charges of solicitation and attempted distribution of obscene material to a minor….

The doctrine of “impossibility” as it has been discussed in the context of inchoate crimes represents the conceptual dilemma that arises when, because of the defendant’s mistake of fact or law, his actions could not possibly have resulted in the commission of the substantive crime underlying an attempt charge. Classic illustrations of the concept of impossibility include: (1) the defendant is prosecuted for attempted larceny after he tries to “pick” the victim’s empty pocket; (2) the defendant is prosecuted for attempted rape after he tries to have nonconsensual intercourse, but is unsuccessful because he is impotent; (3) the defendant is prosecuted for attempting to receive stolen property where the property he received was not, in fact, stolen; and (4) the defendant is prosecuted for attempting to hunt deer out of season after he shoots at a stuffed decoy deer. In each of these examples, despite evidence of the defendant’s criminal intent, he cannot be prosecuted for the completed offense of larceny, rape, receiving stolen property, or hunting deer out of season, because proof of at least one element of each offense cannot be derived from his objective actions. The question, then, becomes whether the defendant can be prosecuted for the attempted offense, and the answer is dependent upon whether he may raise the defense of “impossibility.”

Courts and legal scholars have drawn a distinction between two categories of impossibility: “factual impossibility” and “legal impossibility.” It has been said that, at common law, legal impossibility is a defense to a charge of attempt, but factual impossibility is not. See American Law Institute, Model Penal Code and Commentaries (1985), comment to § 5.01; Dressler, Understanding Criminal Law… However, courts and scholars alike have struggled unsuccessfully over the years to articulate an accurate rule for distinguishing between the categories of “impossibility.”

“Factual impossibility,” which has apparently never been recognized in any American jurisdiction as a defense to a charge of attempt, “exists when [the defendant’s] intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control.” An example of a “factual impossibility” scenario is where the defendant is prosecuted for attempted murder after pointing an unloaded gun at someone and pulling the trigger, where the defendant believed the gun was loaded.

… “Pure legal impossibility exists if the criminal law does not prohibit D’s conduct or the result that she has sought to achieve.” In other words, the concept of pure legal impossibility applies when an actor engages in conduct that he believes is criminal, but is not actually prohibited by law: “There can be no conviction of criminal attempt based upon D’s erroneous notion that he was committing a crime.” As an example, consider the case of a man who believes that the legal age of consent is sixteen years old, and who [correctly] believes that a girl with whom he had consensual sexual intercourse is fifteen years old. If the law actually fixed the age of consent at fifteen, this man would not be guilty of attempted statutory rape, despite his mistaken belief that the law prohibited his conduct.

[Separately,]

Courts have recognized a defense of legal impossibility or have stated that it would exist if D receives unstolen property believing it was stolen;… offers a bribe to a “juror” who is not a juror; tries to hunt deer out of season by shooting a stuffed animal; shoots a corpse believing that it is alive; or shoots at a tree stump believing that it is a human.

Notice that each of the mistakes in these cases affected the legal status of some aspect of the defendant’s conduct. The status of property as “stolen” is necessary to commit the crime of “receiving stolen property with knowledge it is stolen”—i.e., a person legally is incapable of committing this offense if the property is not stolen. The status of a person as a “juror” is legally necessary to commit the offense of bribing a juror. The status of a victim as a “human being” (rather than as a corpse, tree stump, or statue) legally is necessary to commit the crime of murder or to “take and carry away the personal property of another.” Finally, putting a bullet into a stuffed deer can never constitute the crime of hunting out of season.

Dressler, supra.

… It is notable that “the great majority of jurisdictions have now recognized that legal and factual impossibility are ‘logically indistinguishable’ … and have abolished impossibility as a defense.” … In other jurisdictions, courts have considered the “impossibility” defense under attempt statutes that did not include language explicitly abolishing the defense. Several of these courts have simply declined to participate in the sterile academic exercise of categorizing a particular set of facts as representing “factual” or “legal” impossibility, and have instead examined solely the words of the applicable attempt statute.

The Court of Appeals panel in this case … concluded that it was legally impossible for defendant to have committed the charged offense of attempted distribution of obscene material to a minor. The panel held that, because “Bekka” was, in fact, an adult, an essential requirement of the underlying substantive offense was not met (dissemination to a minor), and therefore it was legally impossible for defendant to have committed the crime.

We begin by noting that the concept of “impossibility,” in either its “factual” or “legal” variant, has never been recognized by this Court as a valid defense to a charge of attempt. …

Finding no recognition of impossibility in our common law, we turn now to the terms of the statute. MCL 750.92 provides, in relevant part:

Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows…

… We are unable to discern from the words of the attempt statute any legislative intent that the concept of “impossibility” provide any impediment to charging a defendant with, or convicting him of, an attempted crime, notwithstanding any factual mistake—regarding either the attendant circumstances or the legal status of some factor relevant thereto—that he may harbor. The attempt statute carves out no exception for those who, possessing the requisite criminal intent to commit an offense prohibited by law and taking action toward the commission of that offense, have acted under an extrinsic misconception.

Defendant in this case is not charged with the substantive crime of distributing obscene material to a minor. It is unquestioned that defendant could not be convicted of that crime, because defendant allegedly distributed obscene material not to “a minor,” but to an adult man. Instead, defendant is charged with the distinct offense of attempt, which requires only that the prosecution prove intention to commit an offense prohibited by law, coupled with conduct toward the commission of that offense. The notion that it would be “impossible” for the defendant to have committed the completed offense is simply irrelevant to the analysis. Rather, in deciding guilt on a charge of attempt, the trier of fact must examine the unique circumstances of the particular case and determine whether the prosecution has proven that the defendant possessed the requisite specific intent and that he engaged in some act “towards the commission” of the intended offense.

Because the nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case, the circuit court erred in dismissing this charge on the basis of “legal impossibility.”

Defendant was additionally charged, on the basis of his Internet conversations with “Bekka,” with solicitation to commit third-degree criminal sexual conduct. [The applicable underlying statute provides that “[a] person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and … (a) [t]hat other person is at least 13 years of age and under 16 years of age.”] Defendant maintains that it was “legally impossible” for him to have committed this crime, because the underlying felony requires the existence of a child under the age of sixteen. The Court of Appeals panel agreed…

The Court of Appeals erred to the extent that it relied on the doctrine of “impossibility” as a ground for affirming the … dismissal of the solicitation charge. As we have explained, Michigan has never adopted the doctrine of impossibility as a defense in its traditional attempt context, much less in the context of solicitation crimes. Moreover, we are unable to locate any authority, and defendant has provided none, for the proposition that “impossibility” is a recognized defense to a charge of solicitation in other jurisdictions.

Nevertheless, the solicitation charge was properly dismissed for the reason that there is no evidence that defendant in our case solicited anyone “to commit a felony” or “to do or omit to do an act which if completed would constitute a felony”… Pursuant to the plain statutory language, the prosecution was required to present evidence that defendant requested that another person perform a criminal act. The evidence here shows only that defendant requested that “Bekka” engage in sexual acts with him. While the requested acts might well have constituted a crime on defendant’s part, “Bekka” (or Liczbinski) would not have committed third-degree criminal sexual conduct had she (or he) done as defendant suggested. As the Court of Appeals properly concluded:

What is lacking here is defendant’s request to another person to commit a crime. “Bekka,” the fourteen-year-old online persona of Deputy Liczbinski, was not asked to commit a crime. That is, while it would be a crime for defendant to engage in sexual intercourse with a fourteen-year-old girl, a fourteen-year-old girl is not committing a criminal offense (or at least not CSC–III) by engaging in sexual intercourse with an adult. Thus, whether we look at this case as defendant asking fourteen-year-old “Bekka” to engage in sexual intercourse with him or as defendant asking Deputy Liczbinski to engage in sexual intercourse with him, he did not ask another person to commit CSC–III…. For the above reasons we conclude that the trial court properly dismissed the charge of solicitation to commit criminal sexual conduct.

Accordingly, while the concept of “impossibility” has no role in the analysis of this issue, we agree with the panel’s conclusion that an element of the statutory offense is missing and that the solicitation charge was therefore properly dismissed….

MARILYN J. KELLY, J., (concurring in part and dissenting in part).

The majority errs in concluding that “legal impossibility” has never been adopted in Michigan…

People v. Tinskey (1975) held that the defendants could not be guilty of conspiracy to commit abortion because the woman who was to be aborted was not pregnant. The Court reasoned that the Legislature, in enacting the statute, purposely required that conspiracy to abort involve a pregnant woman. It thereby rejected prosecutions where the woman was not pregnant. It concluded that the defendants in Tinskey could not be prosecuted for conspiracy to commit abortion because one of the elements of the crime, a pregnant woman, could not be established.

Significantly, the Tinskey Court stated that “[t]he Legislature has not, as to most other offenses, so similarly indicated that impossibility is not a defense.” By this language, Tinskey expressly recognized the existence of the “legal impossibility” defense in the common law of this state. Even though the reference to “legal impossibility” regarding the crime of attempt may be dictum, the later statement regarding the “impossibility” defense was part of the reasoning and conclusion in Tinskey. This Court recognized the defense, even if it did not do so expressly concerning charges for attempt or solicitation.

… Even if “legal impossibility” were not part of Michigan’s common law, I would disagree with the majority’s interpretation of the attempt statute. It does not follow from the fact that the statute does not expressly incorporate the concept of impossibility that the defense is inapplicable.

Examination of the language of the attempt statute leads to a reasonable inference that the Legislature did not intend to punish conduct that a mistake of legal fact renders unprohibited. The attempt statute makes illegal an “… attempt to commit an offense prohibited by law ….” It does not make illegal an action not prohibited by law. Hence, one may conclude, the impossibility of completing the underlying crime can provide a defense to attempt.

This reasoning is supported by the fact that the attempt statute codified the common-law rule regarding the elements of attempt. At common law, “legal impossibility” is a defense to attempt….

This state’s attempt statute, unlike the Model Penal Code and various state statutes that follow it, does not contain language allowing for consideration of a defendant’s beliefs regarding “attendant circumstances.” Rather, it takes an “objective” view of criminality, focusing on whether the defendant actually came close to completing the prohibited act. The impossibility of completing the offense is relevant to this objective approach because impossibility obviates the state’s “concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.”

The majority’s conclusion, that it is irrelevant whether it would be impossible to have committed the completed offense, contradicts the language used in the attempt statute. If an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act. The underlying offense in this case, disseminating or exhibiting sexual material to a minor, requires a minor recipient. Because the dissemination was not to a minor, it is legally impossible for defendant to have committed the prohibited act.

…As judges, we often decide cases involving disturbing facts. However repugnant we personally find the criminal conduct charged, we must decide the issues on the basis of the law. I certainly do not wish to have child predators loose in society. However, I believe that neither the law nor society is served by allowing the end of removing them from society to excuse unjust means to accomplish it. In this case, defendant raised a legal impossibility argument that is supported by Michigan case law. The majority, in determining that legal impossibility is not a viable defense in this state, ignores that law….

Notes and questions on People v. Thousand

1. The prosecution initially charged Thousand with a completed offense of 722.675, distribution of explicit material to a minor. That statute is reprinted just before the case. The prosecution later moved to withdraw that charge and replace it with an attempted distribution charge. Why did the prosecution make this change?
2. This court rejects “impossibility” as a limitation on attempt liability. But what does it mean to say that an attempt is impossible? Sometimes, the term is used to describe a defendant who tries to engage in conduct that is not actually criminal; that is “pure legal impossibility” in the words of this court. In that case, it is impossible to commit the underlying crime because there is no underlying crime. Aside from this situation, the label “impossibility” is contested. If a person decides to hunt deer out of season and shoots an animal that turns out to be a decoy rather than a real deer, has this person engaged in an “impossible” attempt? For information on Indiana’s Robo-Deer enforcement program, see https://indianapublicmedia.org/news/dnr-sting-op-stifel-road-hunting.php.
3. Review the Model Penal Code’s definition of attempt (reprinted in the notes after Mandujano). The MPC makes the issue of impossibility mostly irrelevant by defining attempt to include acts that would constitute a crime, or a substantial step toward a crime, “if the attendant circumstances were as [the defendant] believes them to be.” So a person who tries to bribe a “juror,” though mistaken about whether his bribe is going to someone who really is a juror, is as guilty as a person who tries to bribe an actual juror.
4. In the dissenting opinion in Thousand, the question whether “impossibility” should limit attempt liability requires us to consider the underlying rationale for punishing attempt at all. Judge Kelly writes, “impossibility obviates the state’s concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.” Does it seem correct to you that attempt doctrine is based on a worry about risks of harm? Should a defendant’s liability for an attempted offense depend on the defendant’s likelihood of success? What other rationales might explain the choice to criminalize attempts?
5. Note that Michigan has both a general attempt statute and a general solicitation statute, both reprinted before this case. Christopher Thousand was charged with solicitation to commit third-degree sexual conduct, but attempted distribution of obscene material to a minor. The solicitation charge and the attempt charge were paired with two different underlying offenses. But could Thousand have been charged, or convicted, with solicitation and attempt with regard to the same underlying crime? That is, could he have been charged with solicitation to commit third-degree sexual conduct and attempted third-degree sexual conduct? Many courts hold that solicitation “merges” with attempt so that a defendant can be convicted of either solicitation or attempt for a given act, but not both of these inchoate crimes.
6. Why did the Michigan Supreme Court conclude that Thousand’s solicitation charge (but not the attempt charge) was properly dismissed? The court rejected the language of impossibility, but is this a case of what the court earlier called “pure legal impossibility”?

Renunciation or Abandonment

N.Y. Penal Law § 110.00. Attempt to commit a crime

A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.

N.Y. Penal Law § 40.10(3)

In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

Penal Law § 220.21 [as amended in 2004]

A person is guilty of criminal possession of a controlled substance in the first degree when he or she knowingly and unlawfully possesses:

1. one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of eight ounces or more; or

2. methadone and said methadone weighs five thousand seven hundred sixty milligrams or more.

The PEOPLE of the State of New York, Appellant

v.

Andre ACOSTA, Respondent

Court of Appeals of New York
80 N.Y.2d 665

Feb. 16, 1993

KAYE, Judge.

A person who, with intent to possess cocaine, orders from a supplier, admits a courier into his or her home, examines the drugs and ultimately rejects them because of perceived defects in quality, has attempted to possess cocaine within the meaning of the Penal Law. As the evidence was legally sufficient to establish this sequence of events, we reinstate defendant’s conviction of attempted criminal possession of a controlled substance in the first degree.

I.

By jury verdict, defendant was convicted of conspiracy and attempted possession of cocaine. The latter charge—the only one at issue on this appeal—centers on the events of March 21, 1988.

Evidence at trial revealed that, commencing in November 1986, officers of the Manhattan North Narcotics Division began investigating the activities of defendant, his brother Miguel and others. Their investigation techniques included the use of an undercover officer to infiltrate the organization, stakeouts and court-authorized wiretaps. In July 1987 the undercover met with Miguel at a Manhattan apartment and purchased cocaine. At that time, Miguel introduced defendant to the officer, telling her that they “work together.”

A wiretap on defendant’s telephone at his Bronx apartment revealed that for several days prior to March 21, 1988, he was negotiating with Luis Rojas to purchase kilogram quantities of cocaine. [These conversations were routinely conducted in code words such as “tickets” or “tires” which the prosecution expert testified represented kilos of cocaine.] On March 21, at 11:37 a.m., Rojas called defendant and asked, “are you ready?” Defendant replied “come by here” and Rojas responded, “I’m going over.” At 11:42, defendant called “Frank,” an associate, and told him that he “spoke to the man” who would be “coming over here…. Right now.”

About a half hour later, around 12:15 p.m., officers staking out defendant’s six-floor apartment building saw a man pull up in a car, remove a black and white plastic bag from the trunk, and enter the building. The bag’s handles were stretched, indicating that the contents were heavy. At 12:30, the man emerged from the building, carrying the same plastic bag which still appeared to be heavy. He placed the bag back in the trunk and drove off.

Minutes later, at 12:37 p.m., defendant called Frank, stating that he “saw the man” but “those tickets … were no good; they weren’t good for the game man.” Frank wondered whether “they got more expensive, the seats” and defendant explained that they were the “same price and all” but they were “not the same seats … some seats real bad, very bad, very bad.” Defendant elaborated: “two pass tickets together on the outside stuck together, like a thing, like a ticket falsified. Then I told him to take it away, no, I don’t want any problems and anything you see.” Frank asked if defendant was told when the tickets would arrive, and defendant responded “No because who came was someone, somebody else, the guy, the messenger.” Defendant acknowledged that he “want[s] to participate in the game but if you can’t see it, you’re going to come out upset.”

At 12:50 p.m., Rojas called defendant and said something inaudible about “my friend.” Defendant responded, “Oh yes, but he left because (inaudible) it doesn’t fit me…. You told me it was the same thing, same ticket.” Rojas rejoined, “No. We’ll see each other at six.”

Finally, at 1:26 p.m., defendant telephoned Hector Vargas, who wanted to know “what happened?” Defendant said, “Nothing. I saw something there, what you wanted, but I returned it because it was a shit there.” Hector wanted to know, “like how?” but defendant simply responded, “No, no, a weird shit there.” Vargas suggested that he might be able to obtain something “white and good.”

The following day, defendant again called Vargas to discuss “the thing you told me about, you know what I’m referring to”. Defendant recommended that Vargas “go talk to him, talk to him personally and check it out.” Defendant thought that “it would be better if you took the tickets, at least one or whatever.”

At trial, in motions before and after the verdict, defendant argued that the foregoing evidence was insufficient to establish that he attempted to possess cocaine on March 21. The trial court rejected those arguments and sentenced defendant, upon the jury’s guilty verdict, to a prison term of 25 years to life, the maximum permitted by law. On appeal, a sharply divided Appellate Division reversed and vacated the attempted possession conviction, the majority concluding that “[e]ven were we to accept [the] attenuated inference that the visitor actually reached defendant’s apartment and offered his contraband to him, the remaining evidence shows defendant’s flat rejection of that offer, and thus total abandonment of the criminal enterprise with respect to this particular quantity of cocaine.” One of the dissenting Justices granted the People leave to appeal, and we now reverse.

II.

A person knowingly and unlawfully possessing a substance weighing at least four ounces and containing a narcotic drug is guilty of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1] ). Under the Penal Law, “[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime.” (Penal Law § 110.00.) While the statutory formulation of attempt would seem to cover a broad range of conduct—anything “tend[ing] to effect” a crime—case law requires a closer nexus between defendant’s acts and the completed crime.

In People v. Rizzo (NY 1927), we observed that in demarcating punishable attempts from mere preparation to commit a crime, a “line has been drawn between those acts which are remote and those which are proximate and near to the consummation.” In Rizzo, this Court drew that line at acts “very near to the accomplishment of the intended crime.” Though apparently more stringent than the Model Penal Code “substantial step” test—a test adopted by some Federal courts—in this State we have adhered to Rizzo’s “very near” or “dangerously near” requirement, despite the later enactment of Penal Law § 110.00. [But the statute interpreted in Rizzo, former Penal Law § 2, is similar to Penal Law §110.00.]

A person who orders illegal narcotics from a supplier, admits a courier into his or her home and examines the quality of the goods has unquestionably passed beyond mere preparation and come “very near” to possessing those drugs. Indeed, the only remaining step between the attempt and the completed crime is the person’s acceptance of the proffered merchandise, an act entirely within his or her control.

Our decision in People v. Warren (NY 1985) is thus readily distinguishable…. In that case, an informant and an undercover officer posing as a cocaine seller met defendants in a hotel room and reached an agreement for the sale of about half a pound. The actual exchange, however, was to occur hours later, in another part of town, after repackaging and testing. Moreover, when defendants were arrested at that meeting, the sellers had insufficient cocaine on hand and defendants had insufficient funds. We concluded that since “several contingencies stood between the agreement in the hotel room and the contemplated purchase,” defendants did not come “very near” to accomplishment of the intended crime. The same cannot be said here.

Significantly, neither the Appellate Division nor the dissent in this Court disputes the proposition that a person who arranges for the delivery of drugs and actually examines them has come sufficiently close to the completed crime to qualify as an attempt. Rather, the Appellate Division relies on two other grounds for reversal: (i) the evidence was insufficient to establish that defendant in fact met with a drug courier and examined his wares; and (ii) in any event, defendant’s ultimate rejection of the drugs constituted an abandonment of the criminal enterprise, vitiating the attempt. (The dissent in this Court is limited to the first ground.) Neither ground is persuasive.

Sufficiency of the Evidence

A jury, of course, concluded from the evidence presented that defendant attempted to possess cocaine on March 21, 1988. In examining the record for legal sufficiency, “the evidence must be viewed in a light most favorable to the People … to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” …

[W]e conclude that the evidence was legally sufficient to support the jury’s finding that defendant met with a drug courier in his home on March 21. About a half-hour after defendant’s supplier, Rojas, told defendant that he would be coming over, the police saw a man enter the apartment building with a weighted-down plastic bag and emerge 15 minutes later with the same heavy bag. Contemporaneously with the unidentified man’s departure, defendant reported to an associate that he met with a messenger but that he rejected the offer because the “seats” were “very bad” and the “tickets” looked “falsified.” When Rojas immediately called defendant asking about his “friend,” defendant explained that “he left” and complained that Rojas misrepresented that the “same ticket” would be brought. And shortly thereafter, defendant called Vargas and told him that he “saw something there, what you wanted, but I returned it because it was a shit there.”

On the evidence presented, a rational jury could have found beyond a reasonable doubt that defendant, with the intent to possess more than four ounces of a controlled substance, met with Rojas’ courier and examined cocaine, but rejected it because he was dissatisfied with the quality.

The dissent’s contrary conclusion is reachable only by arbitrarily fragmenting the evidence. …[T]he dissent claims that the “sole basis” for defendant’s guilt was a wiretapped conversation in which he told an individual that he had just rejected tickets.

The law, however, did not oblige the jury to take such an artificial view of the evidence. Rather, the jury function was to evaluate the trial evidence as a whole, to consider how the individualized bits of evidence fit together, including inferences from the evidence that rational individuals were entitled to draw. As background, the jury knew from defendant’s many earlier conversations about “tickets” and his meeting with the undercover that he was involved with drugs. Further, the jury knew that in the days immediately preceding March 21 defendant was negotiating with Rojas to buy kilos of cocaine and that on March 21 Rojas said that he was coming over. The unidentified man’s visit to the apartment building with the parcel—coinciding to the minute with defendant’s conversations—was fully consistent with defendant’s several later admissions that he had met with a courier but rejected his merchandise. While the dissent would ignore the totality of this evidence, the jury most assuredly was not required to do so.

Rejection as Abandonment

… Penal Law § 40.10(3) provides an affirmative defense to an attempt charge “under circumstances manifesting a voluntary and complete renunciation of [the] criminal purpose”. To qualify for this defense, “the abandonment must be permanent, not temporary or contingent, not simply a decision to postpone the criminal conduct until another time” …

An abandonment theory is inapposite here. First, abandonment is an affirmative defense, meaning that defendant has the burden of establishing it by a preponderance of the evidence. At trial, however, defendant never sought to present a renunciation defense. Second, and even more fundamentally, the evidence revealed that even after rejecting the March 21 offer, defendant continued making efforts to obtain cocaine. Thus, while it may be true that there was an abandonment “with respect to [that] particular quantity of cocaine,” this is immaterial for purposes of the statutory renunciation defense. Rather, there must be an abandonment of over-all criminal enterprise, which on this record plainly was not the case.

III.

… Accordingly, the order of the Appellate Division should be reversed, the conviction for attempted criminal possession of a controlled substance in the first degree reinstated, and the case remitted to that court for consideration of the facts….

SMITH, Judge (dissenting).

To uphold defendant’s conviction of an attempt, it must be shown beyond a reasonable doubt that his acts came “dangerously close” to committing the substantive crime. That someone got out of a car carrying a bag and entered the apartment building adds nothing to the proof of the attempted crime. There was no proof of who this man was, what was in the bag, where the man went inside the building or who owned the car. Any connection of this proof with defendant would necessarily be based on pure speculation. The critical question, then, is whether defendant’s wiretapped phone calls, standing alone, or even in conjunction with the evidence of a man and his bag, could constitute sufficient evidence for a finding of guilt. Without more, these phone conversations, and other evidence submitted, were insufficient to show that defendant came “dangerously close” to possessing drugs. I, therefore, dissent.

…A police officer assigned to stakeout defendant’s apartment building testified at trial that shortly after noon on March 21, 1988, he observed … a male Hispanic exit [a white] car, remove a black and white plastic bag with long, completely stretched handles from the trunk, and enter the courtyard leading to the building. No one followed the person into the building to ascertain where he went. The officer testified further that the same man left the building 15 minutes later with the same bag with similarly stretched handles…. The officer testified that he never stopped the driver of the white vehicle or ascertained what was in the bag. This incident, along with overheard conversations of defendant that he had rejected “tickets” (allegedly cocaine), presented the sole basis for convicting defendant of attempted possession of a controlled substance in the first degree.

Defendant was convicted, after a jury trial, of attempted criminal possession of a controlled substance in the first degree and conspiracy to possess a controlled substance in the second degree. [Footnote by the dissent: It should be noted that although no objection to it was made by either party, the court erroneously charged the Federal standard on attempt in that a “substantial step” is required for the completion rather than the New York standard of a requirement that conduct come “very near” or “dangerously near” to completion.]

…[T]he evidence adduced at trial does not establish that defendant came very near to the accomplishment of the crime of possession of a controlled substance in the first degree. According to the wiretap information, defendant had been anticipating a delivery of “tickets” from his suppliers for resale to a customer. The police observed an Hispanic male enter and leave the courtyard of the apartment building in which defendant lived carrying a heavy-laden shopping bag. The People assert that the unidentified male brought a supply of cocaine to defendant’s apartment and defendant rejected the supply. However, the stakeout police officer did not stop and question the Hispanic male or ascertain what was in the shopping bag, nor did he observe the male approach or enter defendant’s apartment. …[T]he testimony that an unidentified man entered and exited defendant’s apartment building amounts to no material evidence at all.

The sole basis for defendant’s guilt was the wiretap conversations in which defendant told another individual that he had just rejected a delivery of “tickets” as unacceptable because it was “no good” and “stuck together.” The evidence adduced simply does not establish beyond a reasonable doubt the attempted possession of cocaine by the defendant.

Notes and questions on People v. Acosta

1. Weights and measures: in New York, first degree possession of a controlled substance requires possession of a compound or substance that contains narcotics and has “an aggregate weight of eight ounces or more.” (At the time of Acosta, the minimum weight was only four ounces, as noted in the first sentence of Part II of the majority opinion.) Recall from Chapter Seven that the precise quantity of drugs possessed can be a significant determinant of the scope of criminal liability. When actual narcotics are seized by the police, the drugs (or a mixed substance containing the drugs) can be measured by law enforcement. In this case, no drugs were ever seized or otherwise handled by law enforcement. What evidence does the state use to prove the quantity of the drugs involved here?
2. In a footnote that is omitted here, the Acosta majority observed that New York law used to punish an attempted crime less severely than the completed underlying offense: someone convicted of attempted murder would be subject to a less severe sentence than someone convicted of murder itself. Subsequently, New York changed the penalty provisions to make an attempted offense punishable by the same range of penalties that apply to the completed offense. Thus, Andre Acosta could be given the same sentence that he might have received if he had actually possessed a controlled substance. This approach to grading attempt—that is, making it subject to the same penalties as those available for the underlying offense—is recommended in the Model Penal Code and adopted by many U.S. jurisdictions. There is considerable variation on this question, though; other states authorize lower maximum sentences for attempts than for the underlying offenses.
3. Given the penalty details just described, Andre Acosta, who refused to buy this cocaine, is subject to exactly the same criminal punishment to which he would have been subject had he purchased these drugs. Does that make sense? What rationale for attempt law best explains why Acosta should be punished, if indeed he should?
4. Why did the court reject Acosta’s claim of abandonment? The easier, and less interesting, answer is that Acosta did not make the claim in time. Because abandonment (or renunciation) is an affirmative defense in New York, it was up to the defendant to raise this argument at trial and present evidence to support it. Acosta did not do that. But the court identifies a second and “more fundamental” reason that the abandonment defense is not available to Acosta. What is that more fundamental argument?
5. New York is not unusual in offering only a minimal statutory definition of attempt: “A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” But as the court notes, case law provides additional guidance. The court cites People v. Rizzo (1927), a classic case that is often used to demonstrate the common law “dangerous proximity” test of attempt. Here is the Rizzo court’s description of the facts of that case:

Charles Rizzo, the defendant, appellant, with three others, Anthony J. Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a payroll valued at about $1,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the man who had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped and no one had been pointed out or identified by Rizzo. The four men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

People v. Rizzo, 246 N.E. 334, 336 (1927). The Rizzo court found that the defendants were not guilty of attempted robbery, since robbery requires a specific victim and these defendants never located their intended victim.

In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not find him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob.

Id. at 338. The court thus reversed Rizzo’s conviction—but not those of his co-defendants, because they had neglected to appeal!

A very strange situation has arisen in this case. …[The four defendants] were all tried together upon the same evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only one of the four to appeal to the Appellate Division and to this court. …[W]e have now held that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.

Id. at 339-340. As we have discussed many times, the vast majority of criminal convictions do not lead to an appeal.

6. One last note about People v. Rizzo: the New York court opened its opinion with praise for the police who arrested Rizzo and his codefendants: “The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of a crime, as defined by our law, is, however, another matter.” Id. at 335. In the court’s view, Rizzo was properly arrested but not properly convicted. This distinction invites us to think again about the interaction of criminalization, enforcement, and adjudication decisions; the next section examines that interaction.

Enforcement Powers, Enforcement Choices

One possible rationale for the law of attempt is suggested by the Rizzo court’s praise for the New York police as “wide-awake guardians”: attempt doctrine exists to enable enforcement officials to intervene at an earlier stage. This function of attempt law is not often emphasized in contemporary discussions, in part because the powers of enforcement officials have been expanded in other ways that make attempt doctrine less important as a source of power for police. In this final section of the chapter, we consider inchoate offenses in the broader context of preventive intervention. One particularly important expansion of enforcement authority has been the Supreme Court’s endorsement of the idea that a police officer can stop, question, and frisk an individual as soon as the officer has “reasonable suspicion” that “criminal activity is afoot.” What does it mean for “criminal activity” to be “afoot”? Does it mean that a person is preparing to commit a crime, or already committing one? Does it allow intervention at “mere preparation,” before that preparation has crossed the line into an “attempt”? And what does it mean for a police officer to have “reasonable suspicion” that these things have occurred?

To consider these questions, please read the arrest report below. It is the report generated after the arrest that eventually led to Terry v. Ohio, the famous Supreme Court decision that establishes “stop-and-frisk” authority as constitutional. Thinking about Terry can help you review inchoate offenses, and it can also help you review the relationships among criminalization, enforcement, and adjudication decisions. Some questions for reflection follow the arrest report.

1. Notice that Officer McFadden’s arrest report requests that the defendants “be checked out by the Robbery Squad.” In later testimony before John Terry’s trial, McFadden explained that he thought Terry and his co-defendants might have been “casing a job, a stick-up.” Assume that at the time of John Terry’s arrest, the elements of robbery in Ohio were:
   1) The taking of anything of value
   2) From the person of another
   3) By force or violence or by putting in fear
   4) With intent to steal such property.

See State v. Carlisle, 181 N.E.2d 517 (Ohio 1961).

And assume that at the time of Terry’s arrest, a criminal attempt was defined under Ohio law “as consisting of three essentials”:

1. 1) An intent to perpetrate a criminal act,
   2) The performance of some overt act toward its commission,
   3) The failure to consummate its commission.

See State v. Branch, 26 Ohio Law Abs. 261, 262 (Ohio 1937).

Given these Ohio definitions, and based on the evidence recited in the arrest report, do you think the prosecution would be able to prove beyond a reasonable doubt that Terry committed the crime of attempted robbery? What evidence establishes Terry’s intent? What is the overt act?

2. The arrest report states that Terry and his companions were looking repeatedly into the window of a United Airlines ticket office. Later, at trial, Officer McFadden testified that he wasn’t sure which window the men were looking into. Still later, after this case became famous, some commentators started to claim that Terry was looking into the window of a jewelry store, although there is no reference to a jewelry store in the arrest report. This idea might have arisen from the fact that one of the stores in the area, mentioned in testimony at a pretrial hearing, was called The Diamond Store. Apparently, it was not actually a jewelry store but a men’s clothing store owned by a family with the last name of Diamond. Does the kind of business make a difference to the attempt analysis? Does it make any difference to know that even in 1963, when McFadden arrested Terry, airline tickets were rarely purchased in cash?
3. Now, imagine that John Terry is arrested in New York instead of Ohio. Compare Terry’s actions to those of the defendants in People v. Rizzo, discussed in the notes after People v. Acosta. If the New York doctrinal test for attempt used in Rizzo were applied to Terry, would Terry be found guilty of attempted robbery? Do the facts of Rizzo better support an attempted robbery conviction, or the facts of Terry? Or is the evidentiary support for attempted robbery about the same in both cases?
4. The previous questions are questions about conviction decisions—the finding that a particular defendant is in fact guilty and subject to punishment. Now, consider the enforcement decisions in these cases—the decision to arrest Rizzo and his acquaintances, and the decision to stop and frisk Terry (which, after the frisk revealed a gun, led to a decision to arrest Terry). Enforcement decisions do not require proof beyond a reasonable doubt or anything close to that level of confidence. Instead, an arrest requires “probable cause” to believe that a crime has been or is being committed by the person being arrested. Courts have struggled to define probable cause, but some typical explanations of the concept describe it as “a reasonable ground for belief of guilt” or “facts sufficient to warrant a reasonable person in the belief that the suspect has committed a crime.” The Supreme Court has emphasized that probable cause is a much lower standard – easier to satisfy – than proof beyond a reasonable doubt. “The term probable cause … means less than evidence which would justify condemnation. … It imports a seizure made under circumstances which warrant suspicion.” Locke v. United States (1813).
5. Given that probable cause is a kind of suspicion rather than a standard of proof, and that probable cause is a much lower standard to fulfill than “beyond a reasonable doubt,” it makes sense that the Rizzo court could see the police decision to arrest as praiseworthy, but nonetheless conclude that Rizzo was not properly convicted. In other words, the enforcement decision was justified, in the court’s view, but the conviction decision (or adjudication decision) was not supported by adequate evidence.
6. Consider again Officer McFadden’s observations and his enforcement decisions. If McFadden’s observations were sufficient to give him “a reasonable ground for belief” that Terry and Chilton were guilty of an offense, he would have “probable cause” to arrest them for that offense. Again, this “reasonable ground for belief” need not be confidence as strong as that required by the “beyond a reasonable doubt” standard. All the same, when Terry was prosecuted for weapons possession, the trial court held that “it ‘would be stretching the facts beyond reasonable comprehension’ to find that Officer McFadden had had probable cause to arrest the men before he patted them down for weapons.” Terry v. Ohio, 392 U.S. 1, 7-8 (1968) (quoting the trial court). Terry could not have been arrested for attempted robbery, on the Court’s analysis, and indeed he was never charged with that offense. Instead, as noted above, Terry was charged with weapons possession on the basis of the gun that Officer McFadden discovered during the frisk, and he was convicted of that offense. Terry appealed, arguing that the frisk had violated his constitutional right to be free from unreasonable searches and seizures, and thus the gun should have been excluded from evidence.

In the landmark Supreme Court case that eventually endorsed Officer McFadden’s enforcement decision, the Supreme Court accepted the trial court’s finding that McFadden did not have probable cause to arrest Terry for attempted robbery or some similar offense. But the Court held that McFadden acted lawfully when he approached Terry and his companions, ordered them to take hands out of their pockets, and searched their clothing for weapons—even though the men had left the scene of the suspected would-be robbery by the time McFadden stopped them:

He had observed Terry, together with Chilton and another man, acting in a manner he took to be preface to a ‘stick-up.’ We think on the facts and circumstances Officer McFadden detailed before the trial judge a reasonably prudent man would have been warranted in believing petitioner was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden’s hypothesis that these men were contemplating a daylight robbery—which, it is reasonable to assume, would be likely to involve the use of weapons—and nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Although the trio had departed the original scene, there was nothing to indicate abandonment of an intent to commit a robbery at some point.

Id. at 28. Terry v. Ohio thus became the Supreme Court’s official green-light for the police practice known as stop-and-frisk. A Terry stop is not itself an official arrest; it is a brief detention during which the officer can ask the suspect a few questions. If the officer suspects that the person stopped is “armed and dangerous,” the officer may “frisk” the person, patting down their clothing to look for weapons. Again, the Supreme Court did not require the officer to have probable cause to believe the suspect had committed any crime, or even probable cause to believe the suspect was armed, before stopping and frisking someone. Instead, the Court said, the officer could take these actions on the basis of a lower level of suspicion that has come to be called “reasonable suspicion.” As stated by the Terry Court,

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the [Constitution], and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

Id. at 30-31. The practice of stop-and-frisk is very important to the enforcement of drug and gun offenses; a frisk often allows the police to locate drugs or guns that would otherwise remain hidden from view. If an officer feels an object likely to be a gun—or drugs—he is permitted to remove it and, if he confirms that it appears to be contraband, he can seize it and arrest the individual who possessed it.

Thus, Terry v. Ohio illustrates well the interaction of criminalization, enforcement, and adjudication decisions. At one time, jurisdictions may have seen the criminalization of attempt as a necessary way to enable earlier enforcement intervention. As the powers of enforcement officials have expanded through constitutional doctrine, attempt law becomes less important in this way (though it is still important for other reasons). And the broad enforcement powers granted by Terry v. Ohio make conviction decisions much easier in some areas of law: stop-and-frisk enables police to locate contraband items that would otherwise remain hidden. As you saw in Chapter Seven, once police have found contraband on a person, it is relatively difficult for that person to avoid a possession conviction. Again, we can put these observations in terms of criminalization, enforcement, and adjudication decisions. The criminalization of drug and gun possession would not necessarily, by itself, lead to many actual convictions unless police had ways to determine who had drugs or guns in their possession. But the expansion of enforcement powers to include a broad authority to stop and frisk on the basis of an “hypothesis” that “criminal activity is afoot” enables police to detect the guns and drugs that then make adjudication decisions easy in possession cases.

7. Who are the police likely to find to be suspicious, and on what grounds? Minority communities have long complained that police use their broad discretion to stop and frisk in racially biased ways. Indeed, that very concern was noted by the Supreme Court in Terry, though the Court sustained stop-and-frisk authority regardless. In 2013, a federal court found that the New York Police Department had engaged in unconstitutional racial discrimination by stopping and frisking Black and Latino New Yorkers at disproportionate rates. See Floyd v. City of New York, 959 F. Supp.2d 540 (S.D.N.Y. 2013). Some of the evidence in Floyd came from a statistical analysis of thousands of UF-250 forms—the paperwork that NYPD officers are asked to complete when they stop a suspect. A blank UF-250 form was included in Chapter Three, and included here.  This form asks police to record many details of a Terry stop, including the race of the person stopped and the officer’s stated reasons for making the stop. The statistical analysis of NYPD stops showed that officers stopped and frisked Black and Latino men disproportionately often, usually citing no basis for the officer’s suspicion other than the fact that the encounter occurred in a “high crime area” and/or the person made “furtive movements.” The overwhelming majority of these stops and frisks of persons of color led to no arrest and no discovery of contraband. Indeed, police were somewhat more likely to find contraband or make an arrest when they stopped white people, perhaps because police were more selective and looked for more reliable evidence of criminal activity before stopping white persons.
8. A final question: what exactly does it mean for an offense to be “inchoate”? This chapter has focused on attempt and solicitation, and the next chapter will discuss conspiracy as a criminal offense. Attempt, solicitation, and conspiracy are all doctrines that can apply transsubstantively – or across different types of crimes – to expand criminal liability so it reaches people who have taken some steps toward a specific crime but have not necessarily completed that crime. A person who has thought about committing a robbery but has not actually robbed might nonetheless be convicted (depending on the circumstances) of attempted robbery, solicitation to commit robbery, or conspiracy to commit robbery.

   Sometimes, however, the term “inchoate offense” is used more broadly, to describe any offense that punishes conduct on the theory that the conduct represents a threat of some future harmful act. For example, some courts have characterized burglary as an inchoate offense: recall from Chapter Five that burglary is typically defined as the unlawful entry into a given place with the intent to commit a crime therein. One might view the unlawful entry as a wrong or harm in itself, and indeed, many jurisdictions do have independent offenses of trespass, “breaking and entering,” or “unlawful entry” that are separate from burglary and do not require proof of intent to commit some further offense. (See State v. Begaye in Chapter Five.) Burglary usually carries a more severe penalty than these other offenses, on the theory that a burglary conviction punishes the distinctive threat of the entry with the intent to do further wrong inside the designated location.

   Now consider possession offenses, which were discussed at length in the previous chapter. Does a person who possesses drugs but does nothing with the drugs – does not consume or inject them, or distribute them to others – commit any harm worthy of legal intervention? Many courts and commentators have characterized possession offenses as inchoate offenses, reasoning that the underlying concern with possession is a worry that the possessor will take some further dangerous or harmful action.

   Under this view, inchoate offenses are part of a preventive regime in which criminal law intervenes to stop harms before they occur. By necessity and by design, inchoate offenses will impose criminal liability on people who have not caused the tangible harm that motivates the law, but who are believed to pose a threat of causing that harm. In part because there is no need to show any evidence of tangible harm, enforcement officials and adjudicators will have broad discretion as they decide whom to investigate, arrest, prosecutor, or convict of inchoate offenses.

   Many commentators have linked the preventive regime described above, in which both inchoate offenses and constitutional criminal procedure give enforcers the authority to intervene when they suspect that a person poses a threat of future harm, to patterns of racial disparity in American criminal law. Racial identity may influence official decisions about who is dangerous enough to warrant intervention. As noted earlier in this chapter, Professor Luis Chiesa has argued that the Model Penal Code’s expansion of inchoate offenses has contributed to the “racialization” of American criminal law. Luis Chiesa, The Model Penal Code, Mass Incarceration, and the Racialization of American Criminal Law, 25 Geo. Mason L. Rev. 605, 609 (2018). As an illustration of the MPC’s expansion, think again of John Terry: the MPC “substantial step” approach to attempt would have empowered police to arrest John Terry for attempted robbery, even though Ohio’s common law definition of attempt did not permit such an arrest. Robert L. Misner, The New Attempt Laws: Unsuspected Threat to the Fourth Amendment, 33 Stan. L. Rev. 201, 216 (1981). Possession offenses are another important component of this preventive regime, leading Professor Markus Dirk Dubber to characterize possession as “the new vagrancy.”

   [P]ossession offenses do the crime war’s dirty work. Possession has replaced vagrancy has the most convenient gateway into the criminal justice system. Possession shares the central advantages of vagrancy as policing tool: flexibility and convenience. Yet … it is in the end a far more formidable weapon in the war on crime: it expands the scope of policing into the home, it results in far harsher penalties and therefore has a far greater incapacitative potention, and it is far less vulnerable to legal challenges.

   Markus Dirk Dubber, Policing Possession: The War on Crime and the End of Criminal Law, 91 J. Criminal Law & Criminology 829, 856 (2001). Chapter Three discussed the use of vagrancy statutes after the Civil War to enforce the continued subordination of Black Americans and, in some instances, compel them to supply the free labor that Southern states had lost when slavery was abolished. Although criminal convictions are not used to supply labor in the same way today, they are still a device of social and political subordination.