The Model Penal Code Approach

The Model Penal Code Approach

The two preceding sections reached the corrected-facts test through common-law decisions and the labels courts attached to them. The Model Penal Code reaches the same test by statute, and its wording shows how a single instruction can replace the sorting of mistakes into legal, factual, and hybrid boxes. Section 5.01(1) begins by declaring a person guilty of an attempt if, “acting with the kind of culpability otherwise required for commission of the crime,” he does what one of its paragraphs goes on to describe.¹ That opening clause borrows the mental state from the target offense, so an attempt never demands less fault than the completed crime would, and no one is convicted of attempting a crime whose own mental state he lacked. Paragraph (a) then supplies the operative test: the actor is guilty if he “purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.”² The rest of this section takes that clause apart, explains why it is built the way it is, and shows what it keeps and what it discards.

Each part of paragraph (a) does its own work. The word purposely demands a conscious aim to engage in the conduct, which keeps the attempt tied to a real criminal purpose. Attendant circumstances are the facts surrounding the act that the definition of the offense makes relevant, such as the age of the person affected, whether goods are stolen, or whether a building belongs to someone else. The closing clause then instructs the court to swap the circumstances the defendant believed in for the ones that actually existed. That swap is the corrected-facts test written as a statute: assume every fact was as the defendant believed, leave the law alone, and ask whether the crime would be complete. The Code's drafters aimed this language at the so-called impossibility cases, where the actor believes an element of the offense exists although it does not, and they chose to measure that actor by the circumstances as he believes them to be.³

Because the measure is the actor's own picture of the world, it makes no difference whether the missing fact is physical, as with an empty pocket, or wears a legal label, as with stolen status. Both fall under the same clause. The Code rewrote attempt to sweep away the questions about factual impossibility and to direct attention to the actor's perception of the circumstances.⁴ The old reading in People v. Jaffe, which demanded that the goods actually be stolen, therefore has no place under the Code: a defendant who believed the goods were stolen is guilty of attempt, because the offense would have been complete had his belief been true.⁵ The framers in fact pointed to Jaffe as an example of the misuse of the impossibility defense.⁶

The rule is shaped this way for two reasons. The functional reason is that courts struggled to keep the impossibility categories distinct, and the Code removes the need to try, since one question about the defendant's belief can be answered without first deciding whether a mistake counts as legal or factual.⁷ The second reason concerns what attempt liability is for. Conduct designed to culminate in a crime shows that the actor is disposed toward such activity on other occasions as well, which is why the law needs a basis to reach that person, and when failure comes from a fortuity, excusing the actor would treat people with identical purposes unequally.⁸ A shooter whose gun happens to be unloaded has shown the same disposition as one whose gun fires, and the only difference between them is a fact neither controlled.

The dead-victim case shows the same formula in its original setting. In United States v. Thomas the court described the conflict and artificiality of the older civilian impossibility decisions and then set out § 5.01 as the modern proposal for reform.⁹ The soldiers there believed they were having intercourse with a living woman who had passed out from drink, when she had in fact died. Her death is a physical fact of the same kind as the empty gun, and the Code treats it that way: a defendant who believes his victim alive and shoots to kill is guilty of attempted murder although the victim was already dead.¹⁰

The same clause also explains what the Code keeps. It tells the court to substitute believed circumstances, and it says nothing about substituting a believed law. The Code has no provision labeled legal impossibility, but the result follows anyway, because the prosecution must still identify a criminal statute that punishes what the defendant intended, and a person who does something he wrongly thinks is a crime has no such statute against him.¹¹ States that follow the Code accordingly accept that no one can be guilty of attempting a crime that does not exist.¹² Students who read the Code as abolishing every impossibility argument overshoot, because true legal impossibility survives and still defeats the charge.

Section 5.01 also contains separate provisions on how far the defendant's conduct must progress toward the crime, and they belong to the study of the act requirement and not to the impossibility analysis here.¹³ Outside the Code itself, one count in the mid-1990s listed about twenty states that had abolished the impossibility defense by statute, which confirms that the Code's answer reflects the modern trend.¹⁴

Step three does the real work. It lets a mistaken belief about a fact be corrected in the defendant's disfavor while refusing to let a mistaken belief about the law create a crime, and that single asymmetry produces every result in this section.