Thursday, September 16, 2010
Robert E. Wagner (Case Western Reserve University School of Law) has posted A Few Good Laws: Why Federal Criminal Law Needs a General Attempt Provision and How Military Law Can Provide One (University of Cincinnati Law Review, Vol. 78, p. 1043, 2010) on SSRN. Here is the abstract:
While the law is designed to provide just punishments for individuals who engage in criminal activity, the current absence of a general attempt provision in the federal criminal code frustrates this purpose. Criminal law should both have a deterrent effect on people who are contemplating a criminal act and treat individuals justly who have already perpetrated one. Prosecuting individuals who attempt crimes advances both of these goals. Under the current federal criminal law, however, only some attempted crimes can be prosecuted. Unlike most state criminal law systems, the federal one has no general provision that enables the prosecution of individuals who have taken actions that, if successful, would have resulted in crimes. Rather, some federal criminal laws have their own attempt provisions while others (often inadvertently) do not. This Article proposes as a solution adopting into the federal criminal code a provision from the Uniform Code of Military Justice (UCMJ) that would make it a crime to attempt any other crime in the federal criminal code.
Implementing the language about attempt from the UCMJ and military law precedent would not only allow for the introduction of one clear definition of “attempt” that courts could apply across the board but would also delineate the role of three key defenses in attempt prosecutions. First, it would clarify the distinction between mere preparation to commit a crime and an attempt to do so. Second, it would eliminate the confusing and inconsistent defense of legal impossibility. Third, it would provide a model for when abandoning a criminal endeavor should serve as a defense, which would be when an individual ceases the endeavor of his own volition and before any harm has occurred. Finally, this Article analyzes the proper level of punishment that should be imposed once a person is found guilty of an attempted offense.