Criminal
Law Class Notes
Defenses
to attempt
We
talked a bit about abandonment, and today we’ll talk about impossibility.
People
v. Thousand
What
crime was the defendant charged with?
Primarily, we’re interesting in the charge of attempted distribution of
obscene material to a minor.
From
the defendant’s perspective, the individual was not really a minor, so it’s
impossible for the defendant to have committed the crime. The defendant must make a more specific
argument. What kind of impossibility is
claimed? Thousand claims legal
impossibility.
At
common law, factual impossibility is no defense, while legal impossibility is
a defense.
The
court punts on this distinction because they claim that neither impossibility defense
exists anymore in
An
increasing number of states, though not a huge number, have done what the court
here has done, that is, they have denied that their state’s common law ever
recognized this defense, or they refer to a statute and say that by statute
the defense doesn’t currently exist.
The
Model Penal Code clearly does away with one aspect of the impossibility defense. But even in some non-Model Penal Code states,
their law may be interpreted to eliminate this defense.
The
dissent says that the statute does not eliminate the impossibility defense.
How
can we find that Thousand is not guilty under the interpretation
of the statute offered by the dissent?
Jaffe
Jaffe
was in the business of receiving stolen property and then selling it at a
profit. He got some property, received
it, and sold it. The thing was that he
bought this property from an undercover police officer. This property wasn’t really stolen! Or we might say that once the police touch
the property, it’s no longer stolen.
The
Jaffe court said that this is an act that wouldn’t have been a crime if
it had been completed. That is to say
that if he had purchased the item, he would have been buying regular old
non-stolen property, and there’s nothing wrong with that. We wouldn’t otherwise punish someone for
receiving non-stolen property.
How
does entrapment fit into all of this?
Dressler
says that it’s silly. Jaffe intended
to buy stolen goods.
The
Jaffe explanation is a traditional way to explain legal impossibility.
The
distinction between “pure” legal impossibility and “hybrid” legal possibility
will almost never be mentioned in opinions.
In
traditional common law, here is a good definition of legal versus factual
impossibility:
Legal impossibility occurs when the actions which
the defendant performs or sets in motion, even if fully carried out as he
desires, would not constitute a crime. Factual impossibility occurs when the
objective of the defendant is proscribed by the criminal law but a circumstance
unknown to the actor prevents him from bringing about that objective.
Factual
impossibility versus legal impossibility
This
edition of the book has the Thomas case, where military guys were
charged with attempted rape for raping a dead person. They believed that the person was
unconscious.
Was
Thomas factual impossibility or legal impossibility? If the facts had been as the accused had
believed them to be, then what they did would have constituted the crime of
rape. That would argue for factual
impossibility.
What
would be the case for legal impossibility?
The idea would be that the victim is no longer a human being, and thus
the act which Thomas intended to do was to have sex with this particular thing
which is a dead person, not a live human being.
It seems perverse to say at it was Thomas’s intent to have sex with a
dead person. That’s not the argument.
Is
this a hybrid? Yes, because there was a
mistake of fact that existed on the part of Thousand. He thought the person on the other end of the
Internet was an underage female. Jaffe
thought he was receiving stolen property.
Thomas thought the female was alive.
But there is also legal impossibility in some sense. As a result of the mistake of fact, that mistake
of fact affects an attendant circumstance, and that attendant circumstance in
turn has specific legal significance.
In Jaffe,
the mistake of fact affects whether the goods were stolen or not stolen. The law only deals with stolen property. In Thomas, the mistake of fact was whether they had
sex with a human being or a non-human being.
The factual error affects the attendant circumstance. It’s the same in Thousand. The mistake affects an
attendant circumstance in the statute: you mustn’t send obscene material to underage people. There was no underage
female to receive the pornography. There
was no stolen property to receive. There
was no woman to be raped.
Most of the cases of so-called legal impossibility
involve this kind of “hybrid” situation.
Because they are hybrid and because you can make a plausible legal
argument to suggest that it’s factual impossibility, which is not a defense at common
law, and you can also make an argument that it’s legal impossibility, which is a defense at common law, there must be a problem
with the law.
That’s
not to say that we should abolish the impossibility defense. But the way the common law has developed, the
idea of hybrid legal impossibility needs to be rethought because of the
problems we’re describing.
Take
Thousand for example: was this a complete or an incomplete attempt? This was a complete alleged attempt. This is a conduct crime, so we use § 5.01(1)(a). It’s sometimes
difficult or impossible to say for sure.
So under the Model Penal Code, Thousand would be guilty of attempt. The attendant circumstance is this case was
that the person on the other side of the Internet was an underage female. Thousand did engage in conduct that
would be a crime if that really was an underage female.
This
language was put in by the drafters so that people could be convicted in cases
of impossibility.
Why
abolish the defense? We want to take bad
guys off the streets. This is a utilitarian
view. These are bad, dangerous
people! We should take them off the
streets! They would commit these crimes
if they had the chance. They are also
morally culpable people.
What’s
the argument for why we might not want to knock out the legal impossibility
defense? Why should we sometimes be
hesitant to convict? An objectivist
might say that you’re punishing thoughts.
We also might focus on the actual social harm or lack thereof.
Because
we’re punishing for thoughts, we run the risk of punishing entirely innocent
people who didn’t have the thoughts that we thought they had.
Consider
the hypothetical of Lady Eldon. What
tells us that she had the intention to smuggle?
The fact that supports that is that she hid the lace. That’s ambiguous, though. She had to put it someplace. We’re told that she was hiding it, but we’re
not told why. Is it really so meaningful
to put something at the bottom of your suitcase? If that’s the only evidence, are we prepared
to convict of attempt on that basis?
Scholars
are divided about whether to abolish the impossibility defense. Legislatures are anxious to go down the Model
Penal Code route of abolishing the impossibility defense. Dressler thinks that in 10 years, there will
be no more impossibility defense.
Pure
legal impossibility means “pure mistake of law”. Everything is exactly factually the way you
think it is, but you just don’t understand the law. Just as ignorance of the law is no excuse,
ignorance of the law doesn’t make a crime.
The
pure version of legal impossibility remains a defense in the Model Penal Code,
but even if it weren’t, the legality principle would require us to reach the
same result.