Concept

Withdrawal in Related Offenses

Abandonment and Renunciation

The attempt rules in this chapter answer whether a person who has already committed an attempt can escape liability by stopping. When other people are involved, stopping raises a second question, which is what happens to everyone else. The answers differ from the attempt rules because the participants' positions are no longer tied together. This section is a bridge that previews those differences, since accomplice liability, conspiracy, and solicitation each receive full treatment in other readings. The first link back to attempt sits inside the Model Penal Code defense itself, in a proviso about accomplices, and the second is a contrast between the attempt rules and the rules for two neighboring offenses.

Effect on Accomplices

The Code's renunciation defense closes with a proviso: establishing the defense does not affect the liability of an accomplice who did not join in the abandonment or prevention.¹ The defense therefore travels with the person who renounced. It removes that person's own liability for the attempt, and it leaves in place the liability of anyone who helped the attempt along and kept going.

Two reasons support that allocation. The first follows from the wording of the defense, which requires circumstances manifesting a complete and voluntary renunciation of the actor's own criminal purpose.² Another participant who still wants the crime to succeed has renounced nothing, so the fact that justifies the defense for one person is missing for the other. The second reason is practical. A participant's change of heart ends only that participant's contribution, and the danger the group created continues for as long as someone else is willing to carry on. If one person's renunciation shielded everyone who had helped, a supplier of tools could escape responsibility for an attempt that a still-determined partner pressed forward. The proviso prevents that result by tying each participant's liability to what that participant did to stop the crime.

The proviso also has a boundary worth reading closely. It preserves liability only for an accomplice who did not join in the abandonment or prevention, so an accomplice who did join falls outside it. That person's position is a matter for the accomplice-liability rules treated elsewhere.

The trap on exam facts is spreading one participant's renunciation to the others. A stem that describes one participant's genuine change of heart invites an answer that frees the whole group, and the proviso forecloses that answer, because each participant's liability is tested against that participant's own conduct.

Conspiracy and Solicitation Contrasts

Attempt is the offense for which abandonment has been most debated, because an attempt is complete only after a course of conduct has gone past preparation. Conspiracy and solicitation are complete much earlier, and that timing drives their rules. At common law, abandonment is no defense to conspiracy, since the offense is committed when the agreement is made (together with an overt act in jurisdictions that require one), and a later change of heart cannot undo an agreement that already exists. Solicitation follows the same pattern: the offense is committed when the request is made with the intent that the crime occur, so a later retraction leaves the completed offense in place under the common-law approach. The reasoning matches the traditional attempt rule, which treats an offense as finished at the moment its elements are satisfied.

Withdrawal from a conspiracy does real work, but of a different kind. It leaves the conspiracy itself standing and ends the withdrawing conspirator's responsibility for crimes the others commit afterward. Courts generally require an affirmative act, such as telling the other conspirators in time for them to abandon the plan or reporting to the authorities. The requirement rests on what a conspirator has already set in motion. The others have planned around the conspirator's promised contribution, and silence leaves them acting on the belief that it is still available. A communicated withdrawal tells them the plan has changed, and notice to the authorities lets someone intervene. Communication also produces something a court can test, which matters because a defendant facing charges has every reason to claim a private change of heart that nobody else could observe.

The Model Penal Code departs from the common law for both offenses by supplying a renunciation defense, but it keeps the price high. In the same spirit as the last-step limit for attempts, the conspirator must thwart the success of the conspiracy, and the solicitor must persuade the other person not to commit the crime or otherwise prevent it, and in each case the renunciation must be complete and voluntary. Merely stopping, which is enough early in an attempt, does not satisfy either provision, because the agreement or the request has already put another person in position to act. The exam trap is quiet disengagement: a stem in which a conspirator stops attending meetings tests whether the student sees that silence neither ends the conspiracy nor cuts off liability for what the others do next.

Effect on Accomplices

The Code's renunciation defense closes with a proviso that keeps it from spreading: establishing the defense does not affect the liability of an accomplice who did not join in the abandonment or prevention.⁴ An accomplice for this purpose is a person who helped another commit or attempt the crime and so shares responsibility for it, a status that the accomplice-liability rules treated elsewhere define. The defense therefore belongs to the person who renounced. It ends that person's own liability for the attempt, and it leaves in place the liability of every helper who did not stop along with the actor.

The proviso rests on two separate supports. The first comes from the wording of the defense, which asks whether the circumstances manifest a complete and voluntary renunciation of the actor's own criminal purpose.⁵ A helper who still wants the crime to succeed has renounced nothing, so the fact that earns the defense for one person is missing for the other. The second support is practical. One participant's renunciation shows that this participant is no longer dangerous, but it says nothing about a partner who remains willing to go forward. If a single change of heart cleared everyone who had contributed, a supplier of tools who never wavered would be protected by someone else's second thoughts. The proviso blocks that result by testing each participant's liability against what that participant did to stop the crime. It also has a boundary: it preserves liability only for an accomplice who did not join in the abandonment or prevention, so a helper who did join falls outside it.

Hypothetical Illustration

Lopez and Marsh plan to burgle a pharmacy. Marsh supplies a pry bar and a floor plan and is to stand lookout. At the pharmacy Lopez starts working the rear lock, which is a substantial step. With no alarm, police car, or other outside event behind the decision, Lopez concludes the plan is wrong, packs up the pry bar, and leaves for good. Marsh stays at the lookout post, willing for the burglary to go on, and does nothing to stop it. Lopez can establish the renunciation defense, because the stop was voluntary and complete and the burglary had not reached its last stage. The proviso leaves Marsh's liability for the attempt untouched, because Marsh did not join in the abandonment or prevention. Change one fact so that Marsh helps carry the pry bar back to the car and urges Lopez to go home. Marsh then joined in the abandonment, the proviso no longer applies, and Marsh's position turns on the accomplice rules treated elsewhere.

The proviso answers whether another person's renunciation protects an accomplice. A different question is what accomplices must do to protect themselves, and the answer is more than a private change of mind. In State v. Peterson the State's theory was that the defendant caused another person, August Anderson, to set fire to her house. She denied any part in the burning and testified that she had told Anderson not to go to the house and that, before the fire, she had tried to persuade him to leave the premises he had gone to against her directions.⁶ The court reversed even on the assumption that the two were accomplices. It held that one who has procured, counseled, or commanded another to commit a crime may withdraw before the act is done and avoid criminal responsibility by communicating the fact of the withdrawal to the party who is to commit the crime.⁷ Her efforts to get Anderson to leave, sent through an intermediary in ample time, were the most effective measures within her power to stop the plan, and the court concluded that Anderson must have understood that a request to leave meant she did not want the house burned. Anderson alone was responsible for the fire.⁸

Communication is required because an accomplice's contribution, whether encouragement, a tool, or a promise of help, goes on working until the principal learns it has been withdrawn. A principal who still believes the support is available acts on that belief, so a silent change of mind leaves the contribution in place. Telling the principal ends the contribution. It also produces something a court can test, since a person charged with a crime has every reason to claim a private change of heart that no one else could confirm. Less is required of an accomplice than of a conspirator, yet even an accomplice must bring the withdrawal home to the others.⁹

The second version tracks the pattern in Peterson, and the first shows the exam trap, which is treating a private change of mind as withdrawal. The two rules also do different jobs. The Code proviso says that someone else's renunciation does not rescue a helper who did not join it, while the Peterson line says what the helper must do alone, which is to communicate the withdrawal to the principal before the act is done and to act to stop the plan.

Conspiracy and Solicitation Contrasts

The renunciation question reaches beyond attempt, because conspiracy and solicitation sit even earlier on the path toward a completed crime and each raises the same issue of what a later change of heart can undo. A person commits conspiracy by agreeing with another to commit a crime, and the offense is complete at the agreement, so at common law no later act of withdrawal prevents guilt.¹¹ A person commits solicitation by commanding, encouraging, or requesting another to engage in conduct that would constitute a crime, with the purpose of promoting or facilitating it.¹² Full treatment of each offense belongs to its own reading, so the only question here is what stopping accomplishes. Timing supplies the starting point, because an offense that is complete early leaves little for a later change of heart to reverse. The traditional attempt rule already follows that logic: once the defendant, with the required intent, has moved from preparation to an overt act constituting an attempt, abandonment is no defense.¹³ The common law carries the same reasoning into conspiracy, treating a defendant who has crossed the threshold of criminality as unable to go back.¹⁴

Two labels cause most of the confusion in this area. In the attempt cases, abandonment and renunciation name a stop that operates as a defense to the offense itself, and the Model Penal Code's version is called renunciation of criminal purpose.¹⁵ Withdrawal names something narrower, a conspirator's exit from the group, which ends responsibility for what the others do afterward and leaves the earlier crime in place. In conspiracy law the word abandonment can also describe a plan that every member has let die, which is a separate idea tied to the statute of limitations.¹⁶ Because renunciation and withdrawal operate on different charges, a single exit from a criminal plan has to be tested against each charge on its own terms.

At common law, abandonment is no defense to conspiracy. The theory is that the crime was committed when the agreement was made and a completed offense cannot be uncommitted, so conduct after that point bears on sentencing rather than on guilt.¹⁷ The rule applies even when the change of heart is sincere and the planned crime is never carried out.

Withdrawal still does real work, but of a narrower kind. A conspirator who clearly tells the others that he is no longer associated with the conspiracy, in a way that would inform a reasonable person and in time for them to abandon the plan, ends his responsibility for the crimes they commit afterward, which the Pinkerton rule (the doctrine holding each conspirator liable for crimes the others commit in furtherance of the conspiracy) would otherwise attribute to him.¹⁸ Courts phrase the communication requirement in slightly different ways, and some accept acts inconsistent with the conspiracy that are communicated in a manner reasonably calculated to reach some of the others.¹⁹ Every version demands something communicated rather than a private change of mind, and none erases the conspiracy itself, because the withdrawing conspirator stays liable for the agreement and for what was done before leaving.²⁰

The communication requirement follows from what the conspirator has already set in motion. The others have planned around the promised contribution, and silence leaves them acting on the belief that it is still available. A communicated withdrawal tells them the plan has changed while there is still time to call it off. It also produces an event a court can verify, which matters because a charged defendant has every incentive to claim a private change of heart that nobody else could confirm.

The Model Penal Code departs from the common law by recognizing renunciation of a conspiracy as an affirmative defense, but it prices the defense high. The actor must have "thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose."²¹ The two halves of that standard have separate reasons. Allowing any defense at all rests on the judgment that the agreement alone is not so dangerous, or so revealing of the defendant's character, that a later renunciation should count for nothing.²² Requiring thwarting rests on the fact that a conspiracy's objective will generally be pursued even after one member renounces, so a quiet exit leaves the danger where it was.²³ Thwarting therefore means making sure the remaining conspirators do not succeed, which is why mere withdrawal is not enough.²⁴ Some states soften the requirement to a timely warning to the authorities or a substantial effort to prevent the crime.²⁵ The complete-and-voluntary test carries over from attempt, so a stop prompted by new risk of detection or by a decision to postpone the crime fails here as it does there.²⁶ Separately, the Code's withdrawal rule, which ends liability for later crimes, is met by advising the other conspirators of the abandonment or by informing law enforcement.²⁷

Solicitation is complete as soon as the request is made, so the solicitor is guilty even if the person asked rejects it on the spot.²⁸ Whether the common law ever excused a solicitor's change of heart is unclear. At the least the solicitor would have to communicate it to the person solicited and perhaps ensure the crime was not committed, and the common-law refusal of any abandonment defense to attempt suggests little sympathy for the argument here.²⁹ The Model Penal Code settles the question by statute with an affirmative defense: after soliciting, the actor persuaded the other person not to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of criminal purpose.³⁰ The persuade-or-prevent requirement exists because a solicitor has put another person in motion. A person attempting a crime alone who stops ends the only effort underway, but a solicitor who merely stops speaking leaves the recipient free to carry out the request, so the defense demands steps to stop what the solicitor started.³¹ The renunciation must also reflect a sincere change of heart rather than a discovery that the offense is harder than expected or that detection is more likely.³²

Hypothetical Illustration

A burglar and a friend agree to break into a jewelry store and begin drilling through the floor. Partway through, with no alarm, patrol car, or other new danger behind the decision, the friend genuinely gives up, tells the burglar plainly that he is out, and leaves. The burglar finishes the job alone. Under the Model Penal Code the friend has abandoned his own effort in a complete and voluntary renunciation, which is a defense to the attempt charge, although the accomplice proviso leaves the burglar's own liability untouched. At common law the drilling was already an attempt, and no defense is available. On the conspiracy charge the friend has no defense under either approach, because the agreement was complete when made and he did not thwart the burglary. Because he told the burglar plainly, and in time, that he was withdrawing, he is not liable for the burglary she completed afterward. Change one fact so that the friend simply walks off without a word: the attempt defense under the Code survives, but the withdrawal fails, because silence told the burglar nothing, and the friend remains answerable for the later crime.

Exam Analysis Steps

Because one exit from a criminal plan can be a defense to one charge and no defense to another, the stop has to be tested against each charge separately. The steps are these:

List every charge the facts support, such as attempt by the person who stopped, conspiracy, solicitation, and substantive crimes committed by others.
For attempt, decide whether the jurisdiction follows the common law, which gives no abandonment defense, or the Model Penal Code, which gives a defense for a voluntary and complete renunciation.
For conspiracy, recognize that the common law gives no abandonment defense and that the Code requires the actor to thwart the conspiracy's success, so a mere exit leaves the conspiracy charge standing.
For solicitation, ask under the Code whether the solicitor persuaded the other person not to act or otherwise prevented the crime.
For crimes the others committed afterward, ask whether the person who stopped communicated the withdrawal to them in time for them to call off the plan.

The step most often missed is the last, and the usual error is treating withdrawal as renunciation. A stem in which a conspirator stops attending meetings or simply stays home invites the answer that the conspirator has escaped everything. Silence neither ends the conspiracy nor cuts off liability for what the others do next, and even a communicated withdrawal leaves the earlier conspiracy standing.