Judges NOT looking out for our children!!

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Inasmuch as there never was a "factual impossibility defense" to attempt, there should be no worry on your part that something that never existed will be "revived."

Staying true to the rational underpinning that justifies criminal liability for failed attempts to commit crimes, and unless our Congress directs otherwise, our federal courts must apply an objective standard of guilt that focuses on the actor's conduct. Our courts must focus on the likelihood--the probability--that the actor's conduct will be successful (accomplish the intended crime) unless foiled in some way.

Even the drafters of the MPC were aware that their proposed subjective standard swept too broadly--reached conduct that was truly NOT criminal--and tried to fix this problem by providing an "escape" for conduct that is "less dangerous." Section 5.05(2), Mitigation in Cases of Lesser Danger, allows the judge to dismiss charges or allows a judge, at sentencing, (and not a jury--implicating the right to trial by jury) to reduce the degree of the crime when the the judge finds that the actor's conduct was unlikely to succeed in accomplishing the crime.

There are significant issues that arise from 5.05(2).

First, the section implicates serious constitutional issues under the separation of powers doctrine. Prosecutors (as officers of the executive branch) have discretion to determine whether or not they will pursue criminal charges against an individual. So long as the prosecutor presents a legally sufficient charge, the judge (as an officer of the judicial branch) does not have the power to dismiss the charge based on the judge's own assessment, even though the attempt statute applies to the facts and circumstances of the case, that the prosecution should not proceed.

Second, the section, in substance and effect, creates a lesser-included offense. Here's an example of a state statute that adopts the MPC approach:

Criminal attempt.

A person is guilty of criminal attempt if, acting with the kind of culpability otherwise required for commission of a crime, he intentionally engages in conduct which, in fact, constitutes a substantial step toward commission of the crime. A "substantial step" is any conduct which is strongly corroborative of the firmness of the actor's intent to complete the commission of the crime. Factual or legal impossibility of committing the crime is not a defense, if the crime could have been committed had the attendant circumstances been as the actor believed them to be.

Criminal attempt is an offense of the same class as the offense attempted, except that (a) an attempt to commit a class AA felony is a class A felony and an attempt to commit a class A felony is a class B felony; and (b) whenever it is established by a preponderance of the evidence at sentencing that the conduct constituting the attempt did not come dangerously close to commission of the crime, an attempt to commit a class B felony shall be a class C felony and an attempt to commit a class C felony shall be a class A misdemeanor.

The application of the "mitigating" language of the MPC and of several state statutes that adopt the MPC approach implicates several constitutional concerns under the In re Winship, Mullaney v. Wilbur, Sandstrom v. Montana, and Apprendi v. New Jersey line of cases.

The substance and effect of the law of attempt (as formulated by the drafters of the MPC) is to create an implied presumption that the requisite substantial step comes dangerously close to the commission of the actual crime and allows that implied presumption to be rebutted (by a showing of the unlikelihood of success) that the actor's conduct did NOT come dangerously close to the commission of the crime in order to qualify for a lesser grade of offense and reduce the severity of the penalty imposed. Why else would the MPC require a finding of the absence of a critical fact in order to mitigate the penalty for attempt if that critical fact (dangerousness of the conduct) wasn't presumed to exist in the first place?

Would the outcome in Apprendi have been different if the criminal statute impliedly presumed that the actor's conduct was motivated by racial animus and the sentencing statute allowed the actor to mitigate his punishment by showing that his conduct was NOT motivated by racial animus? I think not. Just like the existence of racial animus was an aggravating fact that was required to be proved beyond a reasonable doubt, the existence of conduct that comes dangerously close to the commission of the crime is also an aggravating fact (under the MPC forumulation) or an essential element of the crime charged (under the Common Law formulation) that must be proved beyond a reasonable doubt in order to impose the harsh punishment that is equal to the punishment that is imposed for a completed crime.

The simple fact remains that Congress has a constitutional duty to define crimes in a manner so that we may ascertain the applicable standards of guilt. Congress failed to do so with respect to the "attempted enticement" statute at issue in the Helder case and our federal courts have muddied the legal landscape by unilaterally and unconstitutionally adopting, in part, the MPC definition of attempt. And, if the MPC law of attempt is now the "law of the land" via judicial fiat, shouldn't also the mitigation section apply as well with all its concomitant constitutional difficulties that need to be thrashed out?

With respect to the statute at issue in Helder's case, Congress can fix the problem easily by omitting the "or attempts to do so" language and redrafting the statute as follows:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years or any individual whom the actor believes has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.

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Debra_Law wrote:

Inasmuch as there never was a "factual impossibility defense" to attempt, there should be no worry on your part that something that never existed will be "revived."

It would be under your theory.

Defendants have been trying to argue factual impossibility since the law first criminalized attempts. And for just as long, courts have said that factual impossibility is not a defense. "Where intent and conduct evidence an attempt, one should not escape responsibility merely because he could not effectuate the intended result, due to some fortuitous circumstance not apparent to him when he acted." See People v. Moran, 25 N.E. 412, 412-13 (N.Y. 1890).

Factual impossibility, then, has never been a defense to an attempt crime, and that was so even under the common law definition of attempts prior to the advent of the MPC. Now, however, you want to revive factual impossibility as a defense under some mistaken notion that, under the pre-MPC common law, a defendant could successfully argue that he was unable to complete the crime because of some "fortuitous circumstance" that prevented him. Thus in Helder you admit that you would actually buy the defendant's argument that he could never have completed the crime simply because the person he thought was a minor was, in fact, an undercover police officer. But no judge, either before or after the introduction of the MPC, would have accepted Helder's argument as a defense to a charge of criminal attempt. Why you would remains a mystery.

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joefromchicago wrote:

Debra_Law wrote:
Inasmuch as there never was a "factual impossibility defense" to attempt, there should be no worry on your part that something that never existed will be "revived."

It would be under your theory.

Defendants have been trying to argue factual impossibility since the law first criminalized attempts. And for just as long, courts have said that factual impossibility is not a defense. "Where intent and conduct evidence an attempt, one should not escape responsibility merely because he could not effectuate the intended result, due to some fortuitous circumstance not apparent to him when he acted." See People v. Moran, 25 N.E. 412, 412-13 (N.Y. 1890).

The rational underpinning of the law of attempt can be traced to Lord Mansfield in the year 1784 in the case, Rex v. Scofield: "Is it no offence to set fire to a train of gunpowder with intent to burn a house, because by accident, or the interposition of another, the mischief is prevented?"

Accordingly, we have two actors:

The first actor sets fire to a train of gunpowder with intent to burn a house. The fire reaches the house; the house is burned; and the actor is guilty of a crime.

The second actor also sets fire to a train of gunpowder with intent to burn a house. However, someone passing by observed what the actor had done and rushed to stomp out the fire before it reached the house. But for the "fortuitous circumstance" that someone was walking by at that time and intervened, the house would have burned. However, the actor's conduct came dangerously close to accomplishing the crime and he should be held criminally liable for attempt.

Another example of two actors:

The first actor, with felonious intent to kill, aims a gun at the heart of the victim and shoots. The bullet penetrates the victim's chest and the victim dies. The first actor is guilty of homicide.

The second actor, with felonious intent to kill, also aims a gun at the heart of the victim and shoots. However, the bullet hits a metal medallion and fails to penetrate the victim's chest. The victim lives. But for the "fortuitous circumstance" that the victim was wearing a metal medallion, the victim would have been killed. However, the actor's conduct came dangerously close to accomplishing the crime and he should be held criminally liable for attempt.

Accordingly, the law of attempt required that the conduct come dangerously close to the actual commission of the crime before criminal liability would attach. Although the actor's conduct need not constitute the "last act" necessary to accomplish the crime, the law required that the nature of the actor's conduct be such that it would likely be successful in accomplishing the crime unless it is foiled in some way. From an objective point of view, if the actor's conduct when complete would not constitute a crime, the actor could not be held liable for an attempt.

The problems that developed with respect to the law of attempt stem from prosecutorial and judicial deviation from the rational and objective underpinnings of the law by trying to shoe-horn conduct into the law of attempt when it didn't fit. Instead of objectively focusing on conduct, they erroneously and subjectively focused on the actor's mind. Justice Holmes warned that this is exactly what we cannot do because we risk punishing the "sinful mind" rather than conduct.

"The law only deals with conduct. An attempt is an overt act." OLIVER WENDELL HOLMES, THE COMMON LAW (1881).

Again, we must go back to the basics set forth in Winship. The government must prove each and every element of the crime charged. The essential elements of the crime of attempt are 1) specific intent to commit the specified crime; and 2) an overt act that comes dangerously close to the actual commission of the specified crime.

If the prosecution cannot prove that the actor's conduct was likely to accomplish the crime unless foiled in some way, then the actor is not guilty of attempt as a matter of law.

The court in PEOPLE v. JAFFE, 185 N.Y. 497, 78 N.E. 169 (1906), addressed your citation to the MORAN case as follows:

Quote:

The crime of which the defendant was convicted necessarily consists of three elements: First, the act; second, the intent; and, third, the knowledge of an existing condition. There was proof tending to establish two of these elements, the first and second, but none to establish the existence of the third. This was knowledge of the stolen character of the property sought to be acquired. There could be no such knowledge. The defendant could not know that the property possessed the character of stolen property when it had not in fact been acquired by theft. The language used by Ruger, Ch. J., in People v. Moran, [p. 502] 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. 732, quoted with approval by Earl, J., in People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, to the effect that 'the question whether an attempt to commit a crime has been made is determinable solely by the condition of the actor's mind and his conduct in the attempted consummation of his design,' although accurate in those cases, has no application to a case like this, where, if the accused had completed the act which he at tempted to do, he would not be guilty of a criminal offense. A particular belief cannot make that a crime which is not so in the absence of such belief.

If you apply the law of attempt in the objective manner in which it was designed to be applied, your difficulty with the distinction between factual impossibility and legal impossibility will be resolved. If a legislative body desires to criminalize conduct that hinges on an actor's erroneous BELIEF--it should not rely on the irrational distortion of the law of attempt to do so--it should say so explicitly.

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joefromchicago wrote:

Factual impossibility, then, has never been a defense to an attempt crime, and that was so even under the common law definition of attempts prior to the advent of the MPC. Now, however, you want to revive factual impossibility as a defense under some mistaken notion that, under the pre-MPC common law, a defendant could successfully argue that he was unable to complete the crime because of some "fortuitous circumstance" that prevented him. Thus in Helder you admit that you would actually buy the defendant's argument that he could never have completed the crime simply because the person he thought was a minor was, in fact, an undercover police officer. But no judge, either before or after the introduction of the MPC, would have accepted Helder's argument as a defense to a charge of criminal attempt. Why you would remains a mystery.

Under a pick-pocket statute, if an actor, with intent to pick your pocket, reaches his hand into your pocket, he has committed an attempt. He had the specific intent to commit the crime plus he engaged in an overt act that came dangerously close to the commission of the actual crime. The fact that it was impossible for the actor to commit the "last act" necessary to complete the crime (pull out your valuables because your valuables weren't in that pocket) does not negate the critical fact that the actor's conduct came dangerously close to the actual commission of the crime. Once that actor placed his hand in your pocket, that was it. If he had pulled out your valuables, the crime would be complete. Because he didn't pull out your valuables, it was an attempt. Criminal liability did not hinge on what the actor may have subjectively believed.

On the other hand, you cannot attempt to buy stolen propety unless the property is in fact stolen. If all you have done is buy property that was not stolen, an actor's subjective belief that the property was stolen does not make an act that is otherwise innocent under the law a crime. "A particular belief cannot make that a crime which is not so in the absence of such belief." The same holds true for the Helder case. It is not a crime to entice an adult. Under the objective common law formulation, Helder's conduct does not constitute a crime. The only thing that makes Helder's conduct a crime under the MPC formulation is his erroneous belief that he was enticing a minor.

But, the fact remains, our federal courts must apply the common law unless expressly directed otherwise by Congress. U.S. v. Morrissette. Inasmuch as our federal courts have legislated from the bench and adopted the MPC formulation (in part) to define the crime of attempt, our courts have violated the separation of powers doctrine. Helder's conviction under the circumstances is a travesty of justice.

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Debra_Law wrote:

Under a pick-pocket statute, if an actor, with intent to pick your pocket, reaches his hand into your pocket, he has committed an attempt. He had the specific intent to commit the crime plus he engaged in an overt act that came dangerously close to the commission of the actual crime.

Not that I know anything about the matter, but this seems like a very counter-intuitive usage of the words "dangerously close" to me. It would imply that if I, a believer in voodoo, stick a needle into my doll in order to kill you, the prosecution would sue me for murder. I came "dangerously close"; the only thing standing between me and your death is that voodoo couldn't possibly kill you -- and that, according to you irrelevant.

And somehow, while the prosecution could make that argument, my defense could not reply that you can't really kill with voodoo, so I am not actually guilty for attempted murder? Not saying you're wrong, but it does sound strange. Interesting, but strange.

Debra_Law wrote:

But, the fact remains, our federal courts must apply the common law unless expressly directed otherwise by Congress. U.S. v. Morrissette. Inasmuch as our federal courts have legislated from the bench and adopted the MPC formulation (in part) to define the crime of attempt, our courts have violated the separation of powers doctrine.

Why can't courts evolve the common law? Or if you think they can, why wouldn't a court rely on the Common Law as evolved by America's other courts? And why wouldn't the ALI's Model Penal Code be a good proxy for that? Sure, the ALI is not elected -- but using the MPC as a proxy here seems no different than using a concordance by an unelected scholar to clarify the founding-era meaning of the constitution, or in referring to a peer-reviewed, but unelected reference book for precedents (rather than citing each link in a multi-century chain of precedents for a certain problem). Both of which of which is fine to my knowledge.

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Debra_Law wrote:

The first actor, with felonious intent to kill, aims a gun at the heart of the victim and shoots. The bullet penetrates the victim's chest and the victim dies. The first actor is guilty of homicide.

The second actor, with felonious intent to kill, also aims a gun at the heart of the victim and shoots. However, the bullet hits a metal medallion and fails to penetrate the victim's chest. The victim lives. But for the "fortuitous circumstance" that the victim was wearing a metal medallion, the victim would have been killed. However, the actor's conduct came dangerously close to accomplishing the crime and he should be held criminally liable for attempt.

What of the third actor, who, with felonious intent to kill, also aims a gun at the heart of the victim and pulls the trigger, only to discover that the gun isn't loaded?

Debra_Law wrote:

Under a pick-pocket statute, if an actor, with intent to pick your pocket, reaches his hand into your pocket, he has committed an attempt. He had the specific intent to commit the crime plus he engaged in an overt act that came dangerously close to the commission of the actual crime. The fact that it was impossible for the actor to commit the "last act" necessary to complete the crime (pull out your valuables because your valuables weren't in that pocket) does not negate the critical fact that the actor's conduct came dangerously close to the actual commission of the crime. Once that actor placed his hand in your pocket, that was it. If he had pulled out your valuables, the crime would be complete. Because he didn't pull out your valuables, it was an attempt. Criminal liability did not hinge on what the actor may have subjectively believed.

How is the empty pocket in your hypothetical any different from the undercover police officer in Helder? In the former, the pickpocket could never have committed the crime that he intended to commit, because the money that he thought was in the pocket was actually not there. In the latter, Helder could never have committed the crime that he intended to commit, because the "minor" that he thought he was enticing was actually an adult. It defies common sense to argue that the pickpocket cannot plead factual impossibility as a defense but that Helder can.

Debra_Law wrote:

On the other hand, you cannot attempt to buy stolen propety unless the property is in fact stolen. If all you have done is buy property that was not stolen, an actor's subjective belief that the property was stolen does not make an act that is otherwise innocent under the law a crime. "A particular belief cannot make that a crime which is not so in the absence of such belief." The same holds true for the Helder case. It is not a crime to entice an adult.

And it's not a crime to put your hand in someone's empty pocket (or, if it is, it's a simple battery, not attempted theft). The only thing that distinguishes the person who puts his hand in someone else's pocket out of asbentmindedness or clumsiness and the thief who puts his hand in someone else's pocket in the expectation that there is money there is a "particular belief." Yet the former is not a crime while the latter is. In the same sense, if I shoot at a person thinking it is a mannequin, it is a far different act from that of the person who shoots a mannequin thinking it is a person. Thus, it is simply wrong to say that "a particular belief cannot make that a crime which is not so in the absence of such belief." Jaffe is wrong (in more ways than one): judges in this country issue rulings that belie that notion every day.*

Debra_Law wrote:

Under the objective common law formulation, Helder's conduct does not constitute a crime. The only thing that makes Helder's conduct a crime under the MPC formulation is his erroneous belief that he was enticing a minor.

Which is no different from the pickpocket's erroneous belief that there was money in the pocket that he attempted to pick.

*"The reasoning in the Jaffe line of cases has come under considerable criticism in the last twenty-five years, and in response to the criticism the defense has been uniformly rejected by the highest courts of most states where the issue has been raised." Commonwealth v. Henley, 504 Pa. 408, 474 A.2d 1115 (1984)

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Thomas wrote:

Debra_Law wrote:
Under a pick-pocket statute, if an actor, with intent to pick your pocket, reaches his hand into your pocket, he has committed an attempt. He had the specific intent to commit the crime plus he engaged in an overt act that came dangerously close to the commission of the actual crime.

Not that I know anything about the matter, but this seems like a very counter-intuitive usage of the words "dangerously close" to me. It would imply that if I, a believer in voodoo, stick a needle into my doll in order to kill you, the prosecution would sue me for murder. I came "dangerously close"; the only thing standing between me and your death is that voodoo couldn't possibly kill you -- and that, according to you irrelevant....

Thomas:

I don't think you've been following close enough. Let me try again to explain.

Due process of law requires the government to prove each and every element of a crime charged beyond a reasonable doubt. We determine the essential elements of a crime by looking at the definition of the crime. Under the separation of powers doctrine, only Congress (in our federal system) has the power to define crimes and to designate the punishment.

Congress as the power to regulate the channels of interstate commerce. We've been looking at the federal statute that substantially defines a crime as follows:

Whoever

1) Using a channel of interstate commerce (e.g., the internet),
2) knowingly
3) entices
4) a minor
5) to engage in sexual conduct that is a crime
6) or attempts to do so

shall be punished....

Congress did NOT define the term "attempts" in the statute. When Congress fails to define a term, but that term has developed a meaning at common law, the courts are required to apply the common law understanding of the term UNLESS Congress expressly directs otherwise. See Morrissette case (cited and quoted several times in this thread).

Due process of law also requires that a criminal statute provide ASCERTAINABLE standards of guilt. An attempt is an inchoate (incomplete) crime. The essential elements of crime of attempt are 1) mens rea: specific intent to commit the specified crime; and 2) actus reus: an overt act that _______. I've been discussing the difference in the standards of guilt between the COMMON LAW and the MODEL PENAL CODE (MPC) with respect to the law of attempt and essential element of an overt act.

What is the ascertainable standard to test for the sufficiency of the overt act to constitute the crime of attempt?

Under the common law forumulation, the actus reus (CONDUCT) element must be an overt act that comes dangerously close to the actual commission of the specified crime. The act doesn't have to be the "last act" necessary to commit the crime, but it must be an act that is likely to succeed in accomplishing the specified crime unless foiled in some way. The OBJECTIVE FOCUS is on the actor's CONDUCT (without any subjective reference to the actor's state of mind) and the dangerous proximity (nearness) of that conduct to the actual specified crime. Accordingly, as set forth in case law, "A particular belief cannot make that a crime which is not so in the absence of such belief."

Under the MPC forumulation, the actus reus (CONDUCT) element must be an overt act that constitutes a "substantial step." A substantial step is defined as a step that CORROBORATES the actor's criminal intent / purpose. The SUBJECTIVE FOCUS is on the dangerousness of the actor's mind. Therefore, contrary to the common law, under the MPC, a particular belief may indeed make that a crime which is not so in the absence of such belief.

Recap:

Common law test: OBJECTIVE, focuses on the DANGEROUSNESS of the actor's CONDUCT.

MPC test: SUBJECTIVE, focuses on the DANGEROUSNESS of the actor's MIND.

Depending upon which STANDARD we apply (the Common Law or the MPC standard) to determine the sufficiency of the overt act to hold the actor criminally liable for attempt, the overt act might be insufficient at common law as a matter of law to convict--but that same overt act might be sufficient under the MPC to convict. The actor's conviction of a crime may therefore rest upon which standard of guilt is applied.

The identified PROBLEM in the federal court system is that our federal courts have UNILATERALLY and UNCONSTUTIONALLY (in violation of the separation of powers doctrine) legislated from the bench and adopted the MPC formulation. Again, as set forth before, unless Congress expressly directs otherwise, our federal courts must apply the common law.

When we evaluate Helder's case, the overt act is insuffient under the common law formulation to hold him criminally liable for attempted enticement. However, the overt act is indeed sufficient under the MPC formulation. (But that raises serious constitutional problems with respect to the federal court's unilateral but apparent PARTIAL adoption of the MPC standard of guilt without also adopting the crucial mitigation section of that same law.)

Under both the common law and MPC formulations, a pick pocket would be held criminally liable for attempt if, with the specific intent to pick your pocket, he engages in the dangerous conduct of placing his hand in your pocket. If there had been anything of value in your pocket and the actor took it, the crime would be COMPLETE. Therefore, his act of sticking his hand in your pocket satisfies both tests. His act was dangerously close to the accomplishment of the completed crime and his act strongly corroborated his criminal intent to pick your pocket.

However, your voodoo doll example would result in two different outcomes.

Under the common law, from an OBJECTIVE standard, the OVERT ACT of sticking a pin into a doll would NEVER come dangerously close to succeeding or accomplishing the actual commission of the crime of murder. The overt act is INSUFFICIENT as a matter of law (under the common law formulation) to hold the actor criminally liable for attempted murder.

Under the MPC forumulation, from a SUBJECTIVE standard, we focus on the actor's mind. If the actor believed that he could kill the intended victim by sticking a needle in a doll, then his overt act of sticking a needle in a doll strongly corroborates his evil criminal intent to kill the victim. Under the MPC formulation, the act is sufficient to hold the actor criminally liable for attempted murder. (But again, see the mitigation section of the MPC that raises serious constitutional issues discussed briefly in an earlier post.)

I hope the above answers your questions on the subject of attempt.

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joefromchicago wrote:

Debra_Law wrote:
The first actor, with felonious intent to kill, aims a gun at the heart of the victim and shoots. The bullet penetrates the victim's chest and the victim dies. The first actor is guilty of homicide.

The second actor, with felonious intent to kill, also aims a gun at the heart of the victim and shoots. However, the bullet hits a metal medallion and fails to penetrate the victim's chest. The victim lives. But for the "fortuitous circumstance" that the victim was wearing a metal medallion, the victim would have been killed. However, the actor's conduct came dangerously close to accomplishing the crime and he should be held criminally liable for attempt.

What of the third actor, who, with felonious intent to kill, also aims a gun at the heart of the victim and pulls the trigger, only to discover that the gun isn't loaded?

The prosecution could make the argument, under the common law formulation, that the actor's conduct came dangerously close to the accomplishment of the actual crime. The actor's conduct of aiming the gun and pulling the trigger was likely to cause the death of another unless foiled in some way. The judge would submit the case to the jury for a determination whether the prosecution has proved each and every element of the crime of attempted murder beyond a reasonable doubt.

Debra_Law wrote:

Under a pick-pocket statute, if an actor, with intent to pick your pocket, reaches his hand into your pocket, he has committed an attempt. He had the specific intent to commit the crime plus he engaged in an overt act that came dangerously close to the commission of the actual crime. The fact that it was impossible for the actor to commit the "last act" necessary to complete the crime (pull out your valuables because your valuables weren't in that pocket) does not negate the critical fact that the actor's conduct came dangerously close to the actual commission of the crime. Once that actor placed his hand in your pocket, that was it. If he had pulled out your valuables, the crime would be complete. Because he didn't pull out your valuables, it was an attempt. Criminal liability did not hinge on what the actor may have subjectively believed.

Joe wrote:

How is the empty pocket in your hypothetical any different from the undercover police officer in Helder? In the former, the pickpocket could never have committed the crime that he intended to commit, because the money that he thought was in the pocket was actually not there. In the latter, Helder could never have committed the crime that he intended to commit, because the "minor" that he thought he was enticing was actually an adult. It defies common sense to argue that the pickpocket cannot plead factual impossibility as a defense but that Helder can.

The difference, as stated, is that criminal liability for larceny does not hinge on what the actor may have subjectively believed. Larceny is defined as the taking of property without the owner's consent and with the intention to permanently deprive the owner of possession of the property. When the pick pocket actor surreptitiously slips his hand into your pocket to steal the contents, he's not seeking your consent. If the actor had pulled your valuables out of your pocket, the crime would be COMPLETE. Accordingly, the act of placing a hand in your pocket comes dangerously close to accomplishing the actual crime of larceny.

On the other hand, criminal liability in the Helder case hinged entirely on what Helder subjectively believed. Helder did not entice a minor. His conduct did not come dangerously close to accomplishing the actual crime of enticing a minor.

Debra_Law wrote:

On the other hand, you cannot attempt to buy stolen propety unless the property is in fact stolen. If all you have done is buy property that was not stolen, an actor's subjective belief that the property was stolen does not make an act that is otherwise innocent under the law a crime. "A particular belief cannot make that a crime which is not so in the absence of such belief." The same holds true for the Helder case. It is not a crime to entice an adult.

Joe wrote:

And it's not a crime to put your hand in someone's empty pocket (or, if it is, it's a simple battery, not attempted theft). The only thing that distinguishes the person who puts his hand in someone else's pocket out of asbentmindedness or clumsiness and the thief who puts his hand in someone else's pocket in the expectation that there is money there is a "particular belief." Yet the former is not a crime while the latter is. In the same sense, if I shoot at a person thinking it is a mannequin, it is a far different act from that of the person who shoots a mannequin thinking it is a person. Thus, it is simply wrong to say that "a particular belief cannot make that a crime which is not so in the absence of such belief." Jaffe is wrong (in more ways than one): judges in this country issue rulings that belie that notion every day.*

You are basing your argument on a false analogy.

"Criminal penalties may be inflicted only if the accused has commited some act, has engaged in some behavior, which society has an interest in preventing." Powell v. Texas, 392, U.S. 514, 533 (1968) (discussing Robinson v. California, 370 U.S. 660 (1962)).

In the example given immediately preceding your response, the conduct that society seeks to prevent is receiving STOLEN property. It is not a crime to receive property if the property isn't stolen. Under the common law, an erroneous belief that the property is stolen cannot make that a crime which is not so in the absence of such belief.

In Helder's case, the conduct that society seeks to prevent is enticing a minor. It is not a crime to entice an adult. Under the common law, an erroneous belief that the person is a minor cannot make that a crime which is not so in the absence of such belief.

With respect to the pick pocket (larceny) example, you have to ask the question: What is the conduct that society seeks to prevent? Answer:

The conduct that society seeks to prevent is the wrongful taking of the property of another without the owner's consent. Here's the true and relevant analogy: It is not a crime to take the property of another if the owner consents. An erroneous belief that owner did not consent to the taking, when in fact the owner did consent, cannot make that a crime which is not so in the absence of such belief.

You based your argument on a the FALSE ANALOGY. If you use a true and relevant analogy as set forth above, your argument falls apart.

Debra_Law wrote:

Under the objective common law formulation, Helder's conduct does not constitute a crime. The only thing that makes Helder's conduct a crime under the MPC formulation is his erroneous belief that he was enticing a minor.

Joe wrote:

Which is no different from the pickpocket's erroneous belief that there was money in the pocket that he attempted to pick.

As set forth above, you used a false analogy. The pickpocket's criminal liability does NOT hinge upon his erroneous belief that there is something valuable in your pocket. The pickpocket is criminally liable because his conduct came dangerously close to the actual commission of the crime of larceny wherein society seeks to prevent the wrongful taking of property without the consent of the owner.

If, however, the pickpocket was acting under the erroneous belief that he didn't have the owner's consent, when in fact he did have the owner's consent, then--under the common law--his conduct did not come dangerously close to committing the crime of taking property without the owner's consent. Then--and ONLY then when we use the true analogy--the pickpocket's erroneous belief is no different than Helder's erroneous belief, and neither one would be held criminally liable for attempt under the COMMON LAW.

However, BOTH would be held liable for attempt under the MPC formulation due to their erroneous beliefs. The pickpocket would be criminally liable because he believed he did not have the owner's consent to take the property when in fact he did have the owner's consent; and Helder would be criminally liable because he believed he was enticing a minor when in fact he was not enticing a minor. The substantive effect of the MPC with respect to cases involving legal impossibilities is to punish the actor's guilty mind regardless of the fact that the actor's conduct is not criminal and, therefore, could not possibly come dangerously close to the actual commission of the crime.

Joe wrote:

*"The reasoning in the Jaffe line of cases has come under considerable criticism in the last twenty-five years, and in response to the criticism the defense has been uniformly rejected by the highest courts of most states where the issue has been raised." Commonwealth v. Henley, 504 Pa. 408, 474 A.2d 1115 (1984)

The criticism is that Jaffe's conduct, although not criminal as an attempt at common law, was morally reprehensible. I provided the text of the Booth (Oklahoma) case wherein the Court discussed the Jaffe line of cases, noted the correctness of the case under the common law and reversed Booth's conviction. If society desired to hold people such as Jaffe & Booth criminally liable based on their erroneous (but morally reprehensible) beliefs, then the LEGISLATURE would have to change the law of attempt. The Court suggested that the LEGISLATURE consider adopting the MPC formulation.

As I stated before, the outcome of a criminal prosecution for attempt will likely be different depending on whether the courts apply the common law or the MPC standard of guilt with respect to the overt act. But, that is a policy choice to be decided by the legislative branch. When the federal courts unilaterally adopted the MPC formulation, the federal courts unconstitutionally usurped a legislative function in violation of the separation of powers doctrine. The power to define federal crimes belongs solely to Congress.

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Debra_Law wrote:

The prosecution could make the argument, under the common law formulation, that the actor's conduct came dangerously close to the accomplishment of the actual crime. The actor's conduct of aiming the gun and pulling the trigger was likely to cause the death of another unless foiled in some way. The judge would submit the case to the jury for a determination whether the prosecution has proved each and every element of the crime of attempted murder beyond a reasonable doubt.

Wow.

It took you almost two days to come up with a response to my post and that is the best you can do? Really, Debra, it is to laugh.

Explain how the shooter came "dangerously close" to causing someone's death by firing an unloaded gun. There's no need to "foil" his attempt -- his attempt was doomed to failure from the beginning, just as the pickpocket's attempt to steal from an empty pocket was doomed to failure, just as Helder's attempt to entice an adult was doomed to failure.

Debra_Law wrote:

The difference, as stated, is that criminal liability for larceny does not hinge on what the actor may have subjectively believed.

If by "hinge" you mean that the thief's subjective belief in the presence of the valuables is not an element of the crime, then you're wrong. If a defendant enters a dwelling thinking it is empty, but finds that it is filled with valuables, he would not be guilty of attempted theft (although he might be guilty of burglary, depending upon what he intended to do once he got there). On the other hand, if by "hinge" you mean that the thief's subjective belief cannot be a valid defense if it negates intent, then you're still wrong. If someone took an item, mistakenly thinking that it was his, then he would not be guilty of theft.

Debra_Law wrote:

Larceny is defined as the taking of property without the owner's consent and with the intention to permanently deprive the owner of possession of the property. When the pick pocket actor surreptitiously slips his hand into your pocket to steal the contents, he's not seeking your consent. If the actor had pulled your valuables out of your pocket, the crime would be COMPLETE. Accordingly, the act of placing a hand in your pocket comes dangerously close to accomplishing the actual crime of larceny.

To demonstrate how faulty your logic is here, let me rephrase your response:

Quote:

Enticement is defined as knowingly attempting to entice a minor with the intention of engaging in sexual activity that would constitute a criminal offense. When Helder attempted to contact a minor, he did so with the intent to entice. If Helder had enticed a minor, the crime would be COMPLETE. Accordingly, the act of contacting someone for the purposes of enticement comes dangerously close to accomplishing the actual crime of enticement.

Your attempt to distinguish the unsuccessful pickpocket from the unsuccessful enticer makes absolutely no sense. It's not just that you're positing a distinction without a difference, you're positing a distinction without a distinction.

Debra_Law wrote:

On the other hand, criminal liability in the Helder case hinged entirely on what Helder subjectively believed. Helder did not entice a minor. His conduct did not come dangerously close to accomplishing the actual crime of enticing a minor.

No it didn't. The court correctly required Helder to have committed at least some overt act that was in furtherance of his criminal scheme. In that respect, Helder's use of interstate communications to entice someone he thought to be a minor was no different from the pickpocket's act of putting his hand into an empty pocket. In both cases, the overt act was done in the expectation of committing a crime, and it was only circumstances unknown to the defendant that made it impossible to complete the crime.

Debra_Law wrote:

You are basing your argument on a false analogy.

"Criminal penalties may be inflicted only if the accused has commited some act, has engaged in some behavior, which society has an interest in preventing." Powell v. Texas, 392, U.S. 514, 533 (1968) (discussing Robinson v. California, 370 U.S. 660 (1962)).

Quite correct.

Debra_Law wrote:

In the example given immediately preceding your response, the conduct that society seeks to prevent is receiving STOLEN property. It is not a crime to receive property if the property isn't stolen. Under the common law, an erroneous belief that the property is stolen cannot make that a crime which is not so in the absence of such belief.

In Helder's case, the conduct that society seeks to prevent is enticing a minor. It is not a crime to entice an adult. Under the common law, an erroneous belief that the person is a minor cannot make that a crime which is not so in the absence of such belief.

Your attempt to rehabilitate the Jaffe decision is about as unconvincing as your attempt to resuscitate the impossibility defense.

Debra_Law wrote:

With respect to the pick pocket (larceny) example, you have to ask the question: What is the conduct that society seeks to prevent? Answer:

The conduct that society seeks to prevent is the wrongful taking of the property of another without the owner's consent. Here's the true and relevant analogy: It is not a crime to take the property of another if the owner consents. An erroneous belief that owner did not consent to the taking, when in fact the owner did consent, cannot make that a crime which is not so in the absence of such belief.

We're not talking about consent here. The pickpocket who thinks that he is reaching into a pocket filled with money is certainly not acting with the victim's consent. He acts without consent, but also without the possibility of success, since the pocket (unbeknownst to him) is empty.

Debra_Law wrote:

You based your argument on a the FALSE ANALOGY. If you use a true and relevant analogy as set forth above, your argument falls apart.

Not even close.

Debra_Law wrote:

As set forth above, you used a false analogy. The pickpocket's criminal liability does NOT hinge upon his erroneous belief that there is something valuable in your pocket. The pickpocket is criminally liable because his conduct came dangerously close to the actual commission of the crime of larceny wherein society seeks to prevent the wrongful taking of property without the consent of the owner.

Of course the pickpocket's criminal liability hinges on his erroneous belief that there is something of value in the pocket. In order to prove attempted theft, the prosecution must prove that the defendant attempted to wrongfully obtain the property of another without authority or right. If the prosecution cannot show that the defendant attempted to take property (as opposed to merely placing his hand in someone's empty pocket for some other reason, nefarious or not), then it cannot prove its case.

The unsuccessful pickpocket and the unsuccessful enticer both rely on the same defense: that it was impossible for them to complete the crime because of circumstances of which they were unaware. In the pickpocket's case, he thought the pocket was filled with valuables when, in fact, it was filled with nothing. In the enticer's case, he thought that the person he was enticing was a minor, when in fact it was an adult. The pickpocket's subjective belief in the condition of the pocket is an element of the crime of theft just as the enticer's subjective belief in the age of the person he is attempting to entice. And in both cases the defense of impossibility would be unavailing, for the exact same reasons.

Debra_Law wrote:

If, however, the pickpocket was acting under the erroneous belief that he didn't have the owner's consent, when in fact he did have the owner's consent, then--under the common law--his conduct did not come dangerously close to committing the crime of taking property without the owner's consent. Then--and ONLY then when we use the true analogy--the pickpocket's erroneous belief is no different than Helder's erroneous belief, and neither one would be held criminally liable for attempt under the COMMON LAW.

Lack of consent isn't an element of the crime of enticement, so I don't know how you can say that you're using a "true analogy." But, as I said above, the unsuccessful pickpocket and the unsuccessful enticer are using the exact same defense. Why the result in the former case should be different from the latter, when the defenses used are indistinguishable, is inexplicable.

Debra_Law wrote:

However, BOTH would be held liable for attempt under the MPC formulation due to their erroneous beliefs. The pickpocket would be criminally liable because he believed he did not have the owner's consent to take the property when in fact he did have the owner's consent; and Helder would be criminally liable because he believed he was enticing a minor when in fact he was not enticing a minor. The substantive effect of the MPC with respect to cases involving legal impossibilities is to punish the actor's guilty mind regardless of the fact that the actor's conduct is not criminal and, therefore, could not possibly come dangerously close to the actual commission of the crime.

Again, we're not talking about consent, but in the case of the would-be thief who unknowingly takes something that the owner has given his consent for the thief to take, it is probably true that the MPC would view that as attempted theft. But then the MPC does not punish the "actor's guilty mind" any more than the common law punishes the unsuccessful pickpocket's "guilty mind." In both cases, the law requires some overt act that is done in furtherance of the actor's criminal scheme. In both cases, neither act comes "dangerously close" to the commission of a crime, although for different reasons. And in both cases the actor engages in behavior that, but for the particular circumstance unknown to the actor, would have resulted in a successful crime. It goes without saying, of course, that the same can be said of Helder.

Debra_Law wrote:

The criticism is that Jaffe's conduct, although not criminal as an attempt at common law, was morally reprehensible.

How much less reprehensible was Helder's conduct?

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Thomas wrote:

Not that I know anything about the matter, but this seems like a very counter-intuitive usage of the words "dangerously close" to me. It would imply that if I, a believer in voodoo, stick a needle into my doll in order to kill you, the prosecution would sue me for murder. I came "dangerously close"; the only thing standing between me and your death is that voodoo couldn't possibly kill you -- and that, according to you irrelevant.

And somehow, while the prosecution could make that argument, my defense could not reply that you can't really kill with voodoo, so I am not actually guilty for attempted murder? Not saying you're wrong, but it does sound strange. Interesting, but strange.

Not surprisingly, I think Debra_Law's response to your post was incorrect.

Under the MPC standard, I don't think there could be a successful prosecution here -- not because the crime is impossible, but because the defendant did not take any act that was a substantial step toward completing the crime of murder.* Someone who intends to kill and sticks pins in a doll is no different from someone who intends to kill and does nothing else. The law does not punish bad thoughts, nor does it punish bad thoughts accompanied by innocuous deeds. Sticking pins in a doll is not analogous to a pickpocket's fruitless attempt to steal from an empty pocket, since in the latter case putting a hand into a pocket is an act that is in furtherance of a crime (albeit in this instance an unsuccessful one), whereas in the former case sticking pins in a doll is an act that does not further any crime. In the pickpocket's case, he is thwarted because of particular circumstances of which he was unaware. In the voodoo practitioner's case, he is thwarted because of the way the world works.

*Upon reflection, I now disagree with what I wrote to you in this post regarding the legal culpability of the voodoo murderer.

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joefromchicago wrote:

Thomas wrote:
Not that I know anything about the matter, but this seems like a very counter-intuitive usage of the words "dangerously close" to me. It would imply that if I, a believer in voodoo, stick a needle into my doll in order to kill you, the prosecution would sue me for murder. I came "dangerously close"; the only thing standing between me and your death is that voodoo couldn't possibly kill you -- and that, according to you irrelevant.

And somehow, while the prosecution could make that argument, my defense could not reply that you can't really kill with voodoo, so I am not actually guilty for attempted murder? Not saying you're wrong, but it does sound strange. Interesting, but strange.

Not surprisingly, I think Debra_Law's response to your post was incorrect.

Under the MPC standard, I don't think there could be a successful prosecution here -- not because the crime is impossible, but because the defendant did not take any act that was a substantial step toward completing the crime of murder.* Someone who intends to kill and sticks pins in a doll is no different from someone who intends to kill and does nothing else. The law does not punish bad thoughts, nor does it punish bad thoughts accompanied by innocuous deeds. Sticking pins in a doll is not analogous to a pickpocket's fruitless attempt to steal from an empty pocket, since in the latter case putting a hand into a pocket is an act that is in furtherance of a crime (albeit in this instance an unsuccessful one), whereas in the former case sticking pins in a doll is an act that does not further any crime. In the pickpocket's case, he is thwarted because of particular circumstances of which he was unaware. In the voodoo practitioner's case, he is thwarted because of the way the world works.

*Upon reflection, I now disagree with what I wrote to you in this post regarding the legal culpability of the voodoo murderer.

There is nothing incorrect with respect to what I wrote. Even the most cursory effort at research will demonstrate that the MPC applies a subjective approach to the law of attempt with respect to the essential actus reus (conduct) element of the crime.

Under the MPC, any act at all can serve as the actus reus of an attempt as long as the actor believes it will further his or her intended criminal purpose. If an actor believes that sticking a pin into a doll will cause the death of the intended victim, then the act of sticking a pin into a doll is sufficient to constitute a substantial step.

Throughout this thread, Joe has consistently rejected the common law application of an objective approach to the law of attempt with respect to the essential actus reus element. Now, however, in his unsurprising desire to once again claim that Debra Law is wrong, he now embraces the very thing he has been arguing against. He now claims that sticking a pin in a doll, from an objective standpoint, is the same as doing nothing at all. In making his current claim, he is using the very same argument that the common law approach embraced: "The law does not punish bad thoughts."

How many times have I said that that exact same thing only to have Joe jump in and declare that I am wrong. He even mocked my references to the common law dangerous proximity test and Justice Holmes' declaration that we ought to be careful not to stretch the law of attempt too far lest we punish the "sinful mind."

Regardless of Joe's desire to contradict everything I say, what I wrote about the difference between the common law formulation and the MPC formulation is correct. The common law, when analyzing the actus reus, takes an objective approach and focuses on the dangerousness of the actor's conduct. When the conduct comes dangerously close to accomplishing the actual crime, then the actor is criminally liable for attempt. The MPC, when analyzing the actus reus, takes a subjective approach and focuses on the dangerousness of the actor's mind. Any act that corroborates the actor's criminal purpose or intent is sufficient to constitute a substantial step.

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Debra_Law wrote:

Under the MPC, any act at all can serve as the actus reus of an attempt as long as the actor believes it will further his or her intended criminal purpose. If an actor believes that sticking a pin into a doll will cause the death of the intended victim, then the act of sticking a pin into a doll is sufficient to constitute a substantial step.

Not if the act is completely innocuous. The test is not completely subjective (I'm not sure where you came up with that one, but you're wrong again).

Debra_Law wrote:

Throughout this thread, Joe has consistently rejected the common law application of an objective approach to the law of attempt with respect to the essential actus reus element. Now, however, in his unsurprising desire to once again claim that Debra Law is wrong, he now embraces the very thing he has been arguing against. He now claims that sticking a pin in a doll, from an objective standpoint, is the same as doing nothing at all. In making his current claim, he is using the very same argument that the common law approach embraced: "The law does not punish bad thoughts."

How many times have I said that that exact same thing only to have Joe jump in and declare that I am wrong.

I've never said that you were wrong for putting forth the notion that "the law does not punish bad thoughts." You are wrong for many reasons, but not for that.

Debra_Law wrote:

Regardless of Joe's desire to contradict everything I say, what I wrote about the difference between the common law formulation and the MPC formulation is correct. The common law, when analyzing the actus reus, takes an objective approach and focuses on the dangerousness of the actor's conduct. When the conduct comes dangerously close to accomplishing the actual crime, then the actor is criminally liable for attempt.

Except, of course, for those instances when the actor doesn't come dangerously close to accomplishing the actual crime, like the pickpocket who puts his hand into an empty pocket or the shooter who attempts to kill someone by firing an unloaded gun. In those cases, the defendant is guilty of attempt even though he did not come "dangerously close" to committing any kind of crime. The dangerous proximity test can't be reconciled with the common law's rejection of the impossibility defense -- and you've demonstrated, quite ably, why any attempt to reconcile them is doomed to failure.

Debra_Law wrote:

The MPC, when analyzing the actus reus, takes a subjective approach and focuses on the dangerousness of the actor's mind. Any act that corroborates the actor's criminal purpose or intent is sufficient to constitute a substantial step.

That's simply not correct. Under the MPC, an actor must purposefully engage in conduct which would constitute crime if circumstances were as he believes them to be. Belief in the efficacy of voodoo curses, however, is not analogous to a belief in the presence of valuables in a pocket or bullets in a gun. It is not an erroneous belief in one of the particulars of the crime, it is an erroneous belief in the way that cause and effect operate. On a fundamental level, it is little different from a delusion, and the voodoo practitioner would no more be guilty of attempted murder than he would be guilty of murder is his intended victim died.

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joefromchicago wrote:

Debra_Law wrote:
The prosecution could make the argument, under the common law formulation, that the actor's conduct came dangerously close to the accomplishment of the actual crime. The actor's conduct of aiming the gun and pulling the trigger was likely to cause the death of another unless foiled in some way. The judge would submit the case to the jury for a determination whether the prosecution has proved each and every element of the crime of attempted murder beyond a reasonable doubt.

Wow.

It took you almost two days to come up with a response to my post and that is the best you can do? Really, Debra, it is to laugh.

You're being obnoxious, Joe.

Given my heavy work schedule and computer problems, I responded as quickly as I could to your response to my post. The response I gave was complete and accurate. You couldn't refute it, so you resort to an ad hominem attack.

Inasmuch as my time is also valuable, I am not inclined to go through the remainder of your post and again point out your use of ad hominem attacks, strawmen arguments, and false analogies. You have clearly demonstrated that you can't identify the essential elements of substantive crimes and attempted crimes, and you can't distinguish between the mens rea element of a crime and the actus reus element of a crime, so it remains a waste of time to continue to explain the difference between the common law and the MPC with respect to the actus reus element of the crime of criminal attempt.

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Debra_Law wrote:

Inasmuch as my time is also valuable, I am not inclined to go through the remainder of your post and again point out your use of ad hominem attacks, strawmen arguments, and false analogies. You have clearly demonstrated that you can't identify the essential elements of substantive crimes and attempted crimes, and you can't distinguish between the mens rea element of a crime and the actus reus element of a crime, so it remains a waste of time to continue to explain the difference between the common law and the MPC with respect to the actus reus element of the crime of criminal attempt.

Well, I've been extraordinarily patient in explaining the impossibility defense to you, so I think it all evens out. I don't consider that to have been a waste of time -- after all, someone else might have learned something from it even if you didn't. But if you don't want to discuss this topic any further, that's fine. I have no need to get in the last word, so I suppose we can both go back to work now.

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Judges NOT looking out for our children!!

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