Requirements for Renunciation

Requirements for Renunciation

The defense in § 5.01(4) rests on its closing words. The actor must have abandoned the effort or otherwise prevented the crime's commission under circumstances manifesting a complete and voluntary renunciation of criminal purpose.¹ The Code does not leave those two adjectives to ordinary usage. It defines each one by exclusion: renunciation is not voluntary when circumstances that were absent at the start, and that raise the chance of detection or make success harder, motivate it in whole or in part, and it is not complete when the actor decides to postpone the crime or to shift the effort to a similar victim or objective.² Each definition describes a kind of stopping that can look like repentance from the outside and is something else.

The reason for drawing the lines there follows from what the defense is meant to accomplish. The defense is justified only if a stop reveals that the actor's purpose has really ended, or if the promise of leniency actually induces the actor to stop. An actor who quits because the police arrive or because the task has become harder reveals nothing about purpose, since the same purpose would have carried the effort forward had the obstacle never appeared. The offer of leniency also induced nothing in that case, because the stop was forced and the actor never had a real choice to make. An actor who postpones the crime or turns to another victim shows that the purpose survives and has only changed its timing or its target, so the danger to the public remains. Together the two words screen out stopping that is forced or temporary and reserve the defense for genuine desistance.

The text raises a third problem that concerns timing rather than motive. It offers two routes, abandoning the effort and otherwise preventing the crime's commission.³ An actor who has not yet done everything the crime requires can take the first route simply by ceasing. An actor who has already done everything within his power has nothing left to abandon, and the crime can be avoided only through some affirmative act of prevention. At that stage the inquiry shifts from why the actor stopped to whether his conduct actually kept the crime from occurring. The sections below take up voluntariness first, then completeness, and then this last-step limit.

Voluntary Renunciation

The first of the Code's two qualifying words moves the inquiry away from the fact that the defendant stopped and toward the reason for stopping. Under § 5.01(4), renunciation is not voluntary if it is motivated, in whole or in part, by circumstances that were not present or apparent at the inception of the actor's course of conduct and that either increase the probability of detection or apprehension or make the criminal purpose more difficult to accomplish.⁵ That definition has three working parts. The first is the kind of event that disqualifies, which is an outside circumstance that raises the risk of getting caught or makes success harder. The second is how much influence the event must have had, and the answer is any influence at all, since the text reaches motives that operate in whole or in part. The third is timing, which confines the disqualifying events to those that were neither present nor apparent when the course of conduct began.

Each part has its own reason, and all of them trace back to what the defense is for. The defense is justified when a stop shows that the actor's purpose was never firm, or when the prospect of leniency induces the actor to stop while the crime can still be avoided.⁶ A stop forced by outside events accomplishes neither. An actor who quits because officers arrive reveals nothing about his purpose, since the same purpose would have carried him forward had the officers stayed away, and no offer of leniency could have induced a choice he never made. The words in whole or in part matter for a related reason: nearly every real stop has mixed causes, and only the defendant knows which one carried the decision. If a passing moral doubt paired with a heavy practical obstacle were enough, almost anyone who stopped because of an obstacle could claim the defense, so the text disqualifies the stop whenever a disqualifying circumstance contributed to it. The inception qualifier follows the same logic from the other direction. A risk the actor already saw when he began is part of the plan he accepted, so stopping in the face of that same risk tells the factfinder nothing new, while a development that arrives midway can fairly be said to have forced the stop.

The contrast between a forced stop and a real change of heart appears on the facts of Stewart v. State. Stewart brandished a loaded pistol at a service station operator, demanded all of his money, and took the wallet the operator handed over. At that point two police officers drove into the station. Stewart told the operator to bring two cans of oil and to act as though Stewart were buying them, took one can, put the pistol in the operator's desk drawer, and tried to leave, and the officers arrested him on the spot.⁷ The Nevada Supreme Court rejected his claim that he had abandoned his intent, reasoning that the attempted robbery was complete when he produced the pistol and demanded the money, so that nothing he did afterward could undo it, whether he stopped because others approached or because his conscience had been stricken.⁸ At common law that ends the analysis, because once an attempt is complete no abandonment, voluntary or involuntary, erases it.⁹ The same facts fail under the Code for a different reason. Assuming the charge rests on a substantial step, the defense exists, but the officers' arrival was a circumstance not present or apparent when Stewart began, and it increased the probability of detection, so his stopping was not voluntary.¹⁰ The two approaches reach the same result by different routes, and an exam answer should say which route the jurisdiction's rule opens.

The facts of People v. Staples supply the other pole, a genuine change of heart. After his arrest Staples told the police that beginning his plan made him realize a fugitive's life on stolen money would not be worth giving up the life of a mathematician, and that his wife's return made being a bank robber seem more and more absurd.¹¹ Had that reconsideration been the whole story, with nothing outside pressing on him, the Code would recognize a defense on those facts.¹² The record was not that clean, because the court inferred that Staples learned the landlord had retaken the office and handed his equipment to the police, which it treated as the equivalent of interception.¹³ A factfinder applying the Code who concluded that this discovery played even a part in his stopping would have to find the renunciation not voluntary, however sincere his remorse also was. Because the question is why the defendant stopped, it is a question of fact. That is why the court in LaTraverse remanded for an evidentiary hearing instead of deciding the point on the existing record.¹⁴

Courts applying this language sort stops by what came before them. They restate the disqualifying category as unanticipated difficulties, unexpected resistance, or circumstances that increase the probability of detection.¹⁵ In State v. Riley a man who entered an elevator with a woman, intending to rob her at knifepoint, gave up when she screamed and resisted, and the court held the abandonment no defense because he apparently concluded that continuing would increase the probability of his detection.¹⁶ In Gravens v. State a bank robber stopped after a teller questioned him about his note in an especially loud voice, and the stop was held not voluntary because the teller's conduct raised the chance of detection and made the robbery harder.¹⁷ The second prong, circumstances that make the purpose more difficult to accomplish, reaches obstacles unconnected to detection, as in Barnes v. State, where the defense failed because the robber stopped owing to his inability to open the cash register.¹⁸ By contrast, the court in State v. Alston held a carjacking defendant entitled to an abandonment instruction where, once inside the vehicle, he had a change of heart and not only released the driver but told him to call the police.¹⁹ The Court of Military Appeals in United States v. Byrd summarized the pattern by observing that the defense has been applied when the defendant abandons the crime because of a change of heart, and has been refused when the stop results from fear of immediate detection, a decision to await a better opportunity, or inability to finish the crime.²⁰

The inception qualifier needs separate attention, because students tend to treat every outside worry as disqualifying. The statutory definition excludes only circumstances that were not present or apparent when the course of conduct began, so a difficulty or risk the actor already knew about does not, by that fact alone, make a later stop involuntary.²¹

The definition names the circumstances that defeat voluntariness, and it does not declare every other stop voluntary. The defendant in the first variation must still persuade the factfinder that the stop manifests a renunciation of purpose, and a stop explained only by a risk accepted from the start makes that showing difficult. The exam trap is to accept a stated change of heart without checking what happened just before the stop, because the same words of remorse carry different weight depending on whether an officer, a resisting victim, or an unforeseen obstacle came first.

Complete Renunciation

The second of the Code's two qualifying words asks a question the first never reaches. Voluntariness looks backward at what caused the stop, and completeness looks forward at what became of the plan. Under § 5.01(4), renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.²³ The text therefore describes two situations. In postponement the actor still intends the same crime on a later day, and in transfer the actor still intends the same kind of crime against a different target. In both, the actor has stopped this attempt while keeping the criminal purpose alive, and the defense is reserved for the actor who has given the purpose up.

The reason for the limit follows from the two things the defense is meant to accomplish. One is to identify the actor whose stop shows that the criminal purpose has really ended, and the other is to induce actors to desist while the crime can still be avoided. The court in State v. Latraverse, adopting the Code's approach, described its aim as the hope that individuals will desist from pursuing their criminal designs, which reduces the risk that the intended crime will be accomplished.²⁴ A postponement achieves neither aim. The actor who waits for a safer night is exactly as dangerous as before, since the plan is intact and only the calendar has changed, and no promise of leniency induced a stop that the actor never meant to be final. The same is true of the actor who moves on to a second victim. There is also an incentive problem. If a pause or a change of target counted, any actor whose attempt stalled could claim the defense for the pause and then resume the crime, collecting immunity for the first attempt while keeping the plan. Requiring that the purpose itself be abandoned removes that option.

Courts applying the Code's language have refused the defense in situations of exactly this kind. In United States v. Desena, the defendant held his fire on one occasion because the Hell's Angels drove away from him and on another because a vehicle blocked his line of sight, and the court found no voluntary abandonment and added that in any event the run was "not called off permanently, but only suspended."²⁵ In United States v. Dworken, a defendant whose drug sale fell through because he could not persuade the buyer on price had not completely abandoned it, since his abandonment was particular to that transaction and did not extend to possession of narcotics generally.²⁶ In People v. Acosta, the defendant rejected one quantity of cocaine because he was dissatisfied with its quality but went on seeking other cocaine, and the court held that "there must be an abandonment of over-all criminal enterprise."²⁷

The three decisions mark different edges of the same rule. Desena is a postponement case, because the plan was suspended and never ended. Dworken and Acosta turn on scope, because the actor dropped one deal or one batch while the broader enterprise continued, which amounts to substituting one objective for another. Completeness is therefore measured against the criminal purpose as a whole, and giving up a single vehicle for that purpose does not satisfy it.

That last variation shows why completeness has to be examined separately from voluntariness. A person can stop for no outside reason at all and still fail this requirement because the plan lives on. Because each requirement can fail independently, the factual analysis runs best as two questions asked in order.

Students lose this issue when they treat a free choice to stop as proof that the plan ended. A stated intention to come back Tuesday, to hit the house next door, or to find a better buyer is the fact that defeats completeness, so an exam answer should look for such a statement in the facts before crediting any show of reluctance.

The Last-Step Limit

The Code's renunciation defense asks for more than stopping. Its text asks whether the actor "abandoned his effort to commit the crime or otherwise prevented its commission," and the second alternative exists because stopping does not always keep a crime from happening.²⁹ For most attempts the two coincide: a burglar who puts down the pry bar has abandoned the effort, and because nothing further would happen without his labor, he has also ended the danger. They come apart at the final stage, when the actor has already done everything within his own control and the harm will follow unless something intervenes. Ceasing to act then accomplishes nothing, since no further effort remains to abandon, so the actor must take the alternative route and actually prevent the crime. This is the last-step limit: a defendant who has taken the last proximate step and cannot undo it by desisting earns the defense only by averting the harm.³⁰

The limit has two classic illustrations, both offered by the court in People v. Kimball.³¹ A defendant who fires at his enemy intending to kill, and either misses or only wounds, cannot show a defense by claiming that his intent to kill later faded, because the shot is already fired and a change of mind cannot recall it. A defendant who lights the fuse of a bomb but repents and stamps out the fuse before the explosion, by contrast, may assert abandonment, because his own act prevented the harm.³² Both actors repent after the last proximate step, so the remorse is the same in each. The difference lies in the result: the lit fuse stayed within the actor's reach and he put it out, while the bullet was beyond recall and the victim escaped, if at all, through the shooter's poor aim.

The reason for demanding actual prevention at this stage comes from what the defense is meant to buy. The drafters gave the defense two justifications. Early in an attempt, renunciation tends to show that the actor's purpose was never firm, and later, the prospect of escaping liability encourages the actor to stop while the crime can still be avoided.³³ The second justification grows stronger as the actor nears the objective. At the very point where the last proximate act has been done but the crime can still be avoided, abandonment says the least about the actor's dangerousness while the inducement to desist is worth the most.³⁴ The drafters accordingly concluded that, for the later stages of an attempt, the value of encouraging desistance outweighs the danger shown by the abandoned effort.³⁵ A defense granted for a private change of mind after the bullet has left the gun would induce nothing, because nothing remains to avert. It would also invite a claim no one can check, since every shooter whose aim failed could say he would have stopped anyway, and only the shooter knows what he felt. Requiring that the actor actually prevent the crime keeps the reward tied to the benefit the law wanted to purchase, which is a victim who is spared.

The limit also connects back to the common-law point that strict last-act tests leave almost no room to abandon. Where an attempt is found only after the actor has performed the last act within his control, little or no time remains in which to change course, and a defendant guilty of attempt only upon pulling the trigger has a moment, at most, to shout a warning.³⁶ The Code makes the defense available for attempts built on conduct short of the final act, so an actor who is still in the middle of the course of conduct can usually abandon by simply stopping.³⁷ The last-step limit governs only the narrower band after the final act has been done. In that band the Code keeps the defense alive but changes its price from desisting to preventing.

Courts applying statutory versions of the defense have kept the final stage narrow. In Ramirez v. State, a Wyoming case, the defendant stabbed the victim nine times with an ice pick, then stopped and called an ambulance, and the court held the statutory abandonment defense unavailable on the attempted murder charge.³⁸ In People v. Gandiaga, the defendant commanded a cohort to point a gun at the victim's head and pull the trigger, and the gun malfunctioned; the Colorado court of appeals found no abandonment defense available, and the facts show why, since the victim lived because of the malfunction and not because of anything the defendant did to stop the shot.³⁹ Gandiaga shows that a crime frustrated by chance supplies no defense, and Ramirez shows that remorseful conduct after the harm has been inflicted does not reliably supply one either.

Prevention under the last-step limit is an added hurdle at the final stage and does not replace the other requirements. A prevention prompted by an officer's arrival or a victim's resistance remains involuntary, because such a circumstance was not present or apparent at the inception of the course of conduct and increased the probability of detection.⁴⁰ The lit fuse therefore supplies the full model of a qualifying act: the actor's own conduct ends the danger, and the reason for acting is a change of purpose.

The exam trap is remorse after the last step. A fact pattern may describe a defendant who fires, misses, and then insists that he never meant it, and the sympathetic detail tempts an answer that awards the defense. The answer turns on what the defendant did to stop the harm, and a defendant who did nothing, or whose crime failed by chance, has prevented nothing.