Basic Concepts of Criminal Law

By George P. Fletcher | Go to book overview

The better reason for recognizing the defense of abandonment is that it is conceptually connected to the attempt itself. The effort to desist and to check the consequences of the attempt shows that the "criminal intent was not as firm as would have been required for the execution of the offense." 50 Though this rationale makes sense, it does not adequately explain the nuanced decisions of the courts. In particular, it does not explain why American thinking tends to demand a total renunciation of the criminal purpose 51 while German law is content with a standard that stresses whether the attempter is the "master of his decision." 52 In the end, unfortunately, we must conclude that the factors influencing the contours of abandonment represent a mixture of conceptual and political considerations.


Notes
1.
Regina v. Eagleton, 6 Cox Crim. Cas. 559 ( 1855) ("acts immediately connected with [the commission of the offense]").
2.
StGB §22 (A person attempts an offense if according to his conception of the fact he commences the realization of the Definition of the offense (zur Verwirklichung des Tatbestands ansetzt)). Código Penal §16(1) (principio a la ejecutión del delito).
3.
E.g., English Criminal Attempts Act, 1981, §1 (1) (attempt requires "an act which is more than merely preparatory to the commission of the offense").
4.
Russian Criminal Code (1)&(2) (preparation punishable only in the case of "serious" and "very serious" offense).
5.
MPC §5.01(1) (c). The MPC was so concerned about the tradition of limiting liability to acts close to commission that it included a catalogue of preparatory acts that "shall not be held to constitute a substantial step." See MPC §5.01(2).
6.
See, e.g., Illinois Criminal Code §8-4(a); Oregon Statutes §161.405.
7.
See Sanford Kadish, Foreword: The Criminal Law and the Luck of the Draw, 84 J. Crim. L. & Crim. 679 ( 1994); Joel Feinberg, Equal Punishment for Failed Attempts: Some Bad but Instructive Arguments Against It, 37 Ariz. L. Rev. 117 ( 1995). The Model Penal Code §5.05(1) provides that except for the most serious felonies the attempt should be treated as a "crime of the most serious grade and degree" as the most serious crime attempted.
8.
Anthony Duff in Scotland has become one of the leading voices for the "objective" harm-oriented theory of attempts in the English-speaking world. See R. A. Duff, "Criminal Attempts"348-389 ( 1996). See also Lawrence Crocker , Justice in Criminal Liability: Decriminalizing Harmless Attempts, 52 Ohio St. L. Rev. 1057 ( 1992). See also Rethinking at 139-146.
9.
See "Rethinking Criminal Law" at 482-483; R. A. Duff, "Intention, Agency, and Criminal Liability"338-341 ( 1990).
10.
MPC §211.2 (a misdemeanor, limited to recklessly causing "danger of death or serious bodily harm").
11.
See A Crime of Self-Defense at 6, note 11.

-184-

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Basic Concepts of Criminal Law
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • 1 - Substance Versus Procedure 7
  • Notes 23
  • 2 - Punishment Versus Treatment 25
  • Notes 40
  • 3 - Subject Versus Object 43
  • Notes 56
  • 4 - Human Causes Versus Natural Events 59
  • Notes 72
  • 5 - The Crime Versus the Offender 74
  • 6 - Offenses Versus Defenses 93
  • Notes 108
  • 7 - Intention Versus Negligence 111
  • 8 - Self-Defense Versus Necessity 130
  • Notes 145
  • 9 - Relevant Versus Irrelevant Mistakes 148
  • Notes 167
  • 10 - Attempts Versus Completed Offenses 171
  • Notes 184
  • 11 - Perpetration Versus Complicity 188
  • Notes 203
  • 12 - Justice Versus Legality 206
  • Notes 213
  • Index 215
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