American Criminal Law Review Volume: 26 Issue: 2 Dated: (Fall 1988) Pages: 441-461
This article discusses the rationales proposed for adopting some form of abandonment defense to attempted crimes.
Approximately one half of American jurisdictions now recognize the abandonment defense. Basically, abandonment is only allowed when it is voluntary and occurs before commission of the intended crime. A voluntary abandonment is one that is motivated by a change of heart, timidity, or lack of perseverance; renunciation is not voluntary if motivated by circumstances that increase the probability of apprehension or that make the performance of the attempted crime more difficult. Jurisdictions are currently divided in their common law approaches to whether abandonment constitutes a defense to attempted crimes. Some reasons for recognizing the abandonment defense are: (1) the abandoning person was not trying to violate substantive rules; (2) abandonment negates the dangerousness of the attempt; (3) abandoners are not culpable; (4) availability of the defense encourages attempters to abandon; and (5) abandonment negates the criminal intent of the attempter. Reasons for not recognizing the defense are: (1) attempts cause harm to society; (2) punishing attempts deters the commission of completed crimes; (3) attempters are dangerous persons; (4) attempts are dangerous acts in and of themselves; (5) attempt law authorizes police to intervene in the attempted commission of the crime; and (6) attempt liability is needed to uphold the substantive rules. Attempt liability is justified as a means of punishing those who manifest a continuing intent to violate society's substantive rules. But when the defendant has corrected his behavior by voluntarily abandoning his efforts to infringe the authoritative force of those rules, it is desirable to curb punishment of the actor and curtail imposition of full liability for the attempt. 107 footnotes.
United States of America